A selection of leading cases in equity : with notes

Cornell University Law Library

The Moak Collection

PURCHASED FOR

The School of Law of Cornell University

And Presented February 14, 1893

IN nsnoRY OF

JUDGE DOUQLASS BOARDMAN

F[F18T DEAN OF THE SRKOOL

By his Wife and Daughter
A. M. BOARDMAN anil ELLEN D. WILLIAMS

Cornell University Library
KF 398.W58 1877
V.2

A selection of leading cases in equity

3 1924 018 844 468

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.

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A SELECTIOJS^

LEADING CASES IN EQUITY,

QilC^A *

BY

FREDERICK THOMAS WHITE

AND

OWEN DAVIES TUDOR,

OF THE MIDDLE TEMPLB, ESQS., BABRISTEIiS-AT-LAW.

CONTAINING REFERENCES TO AMERICAN CASES,

BY J. I. CLARK HARE AND H. B. WALLACE.

WITH ADBITIONAL NOTES AND BEFEBENCES TO AUEBICAN DECISIONS,

BY J. I. CLARK HAEE.
louvtl) 'Mitvkan, from tl}e iburtl) Conbon €bttion.

IN TWO VOLUMES.

VOL. II.

PHILADELPHIA:

T. & J. W. JOHNSON & CO.,

LAW BOOKSELLERS AND PUBLISHERS,

No. 535 CHESTNUT STREET.
1877.

o-i

Entered, according to Act of Congress, In the year 1877,

BY J. I. CLARK HARE,

In the Office of the Librarian of Congress, at Washington.

Entered, according to Act ot Congress, in the year 1859,

BY J. I. CLARK HARE,

In the Clerk's Office of the District Court, for the Eastern District of Pennsylvania.

Entered, according to Act of Congress, in the year 1852.

BY H. B. WALLACE,

In the Clerk's Office of the District Court, for the Eastern District of Pennsylvania.

Entered, according to Act of Congress, In the year 18i9,

BY T. & J. W. JOHNSON & CO.,

In the Clerk's Office of the District Court, for the Eastern District of Pennsylvania.

JAMES A. MOORE, PKINTBE,

1222 and 1234 Sansom Street, Philadelphia.

In publishing this Edition, the American editor desires to
acknowledge the valuable aid of Mr. Angblo T. Freedlby, of
the Philadelphia bar, in the addition of recent authorities to the
Second Part of Vol. ii. The E^otes to the cases of Eobinson v.
Pett, Townlet v. Shekboenb and Pbnn v. Lokd Baltimore are,
to a great extent, from his pen.

LIST or CASES REPORTED.

PAGE

Agae V. Fairfax (Partition) ....... 865

Aldeich v. Coopee (Marshalling) 228

AsHBUENEE V. Macguiee (Specific Legacy — Ademption) . . 600

Basset v. Noswoethy (Purchase for valuable consideration without

notice) 1

Blandy v. Widmoee (Performance of covenant to leave money by

partial intestacy) 834

Beice 1). Stokes (Liability of trustee for co-trustee's receipts) . 1742
Casboene v. Scaefe (Equity of redemption) .... 1945
Chancey's Case (Satisfaction of a debt by a legacy) . . . 752
Eyee v. Shaftsbuey (Countess of) (Infants — Guardian and ward) 1416
Haeding v. Glyn (Power in the nature of a trust) . . . 1833
HoOLEY V. Hatton (Cumulative legacies — Repetition of legacies) 721
HowAED V. Haeeis (Restrictions on redemption of mortgage dis-
countenanced in equity — Mortgage cannot be made irre-
deemable) 1949

Howe v. Daetmouth (Eael op) (Conversion of residue bequeathed

to persons in succession) 676

HuGUENiN V. Baseley (Voluntary settlement — Undue influence) . 1156
Huntingdon v. Huntingdon (Mortgage of wife's estate of inherit-
ance for the benefit of her husband — Wife's estate considered

only as a surety) 1922

Le Neve v. Le Neve (Notice) 109

Oxfoed's (Eael of) Case (Jurisdiction of equity as to proceed-
ings at law) ......... 1291

Peachy v. Somerset (Duke of) (Relief against penalties and for-
feitures) 2014

v

VI LIST OF CASES EEPORTED.

PAGB

Penn V. BaltiMoee (Lord) (Power of equity over property out

of its jurisdiction by a decree in personam) , , . . 1806

Pye, Ex Parte (Satisfaction of a legacy by a portion — Ademp-
tion) 741

Hees v. Berrington (Release of surety by the creditor giving time

to debtor) 1867

HoBiNsoN V. Pett (No allowance to an executor or trustee for his

care or trouble) 512

Row V. Dawson (Chose in action assignable in equity) . . . 1531

Ryall v. RoWlbs (Assignment of debts without notice to debtor —

Order and disposition) 1533

Scott v. Tyler (Conditions in restraint of marriage — Public

policy) 429

Seton v. Slade (Specific performance with compensation) . . 1041

Silk v. Prime (Equitable assets) . 353

Sloman v. Walter (Penalty relieved against) .... 2022
Stapilton v. Stapilton (Compromise — Family arrangement) . 1675
Talbot (Sir John) v. Shrewsbury (Duke of) (Debt satisfied by

a legacy) 751

Thornbrough v. Baker (Executor of mortgagee in fee entitled to

money secured on mortgage) 1941

TowNLEY V, Sherborne, (Liability for acts of co-trustee) . . 1738
Wake v. Conyers (Confusion of boundaries) .... 850

Warmstrey v. Tanpield (Lady) (Possibility assignable in

equity) 1530

WiLCOCKS V. "WitcocKs (Performance of covenant to purchase and

settle an estate) 833

WooLAjt V. Hearn (Distinction between seeking and resisting spe-

cific performance as to the admission of evidence) . . 920

INDEX

CASES CITED IF THE EKGLISH NOTES
To Vol. II.

*HE PAOllS REPEJlttBD

TO AEE THOSE BETWEEN BKACEETS [

J.

PAGE

PA8S

Abbott V. Geragbty,

. 61

Allday v. Fletcher,

. 792

v. Sworder,

. 506

Allen, Be, . . .

. 48

Abdy V. Loveday, .

. 81

V. Anthony,

. 62

Aberaman Iron Works

Co.

V.

V. Callow, .

. 352, 355

Wickens, .

. 529

V. Coster,

. 686, 715

Abney v. Miller, .

. 301

V. Davis,

. 596

Acherley v. Wheeler, .

. 317

V. Knight, .

. 11,54,59

Ackworth v. Ackworth, .

. 389

v.. McPherson,

. 629

Acton V. Acton, . ,

811, 1063

Alley V. Deschamps,

. 527, 528

V. Pierce,

. 1063

Alleyn v. Alleyn, ,

. 407

Adair v. Shaw,

• 47

, 914, 915

AUhusen v. Whittell, .

. 315

Adams t. Buokland,

. 660

Alloway v. Brain, .

. 527, 529

V. Clifton, .

. 921

Alston, Ex parte, . .

. 109

, V. Lavender,

407, 786

Alton V. Medlicott,

. 276

Addams y. Ferick, ,

802, 303

Amand v. Bradbourne, .

. 264

AddecDtt T. Addecott, .

, 287

Ambrose v. Ashby,

. 176

Addison v. Cox,

. 800

V. Dunmow Union

.637

Adey v. Arnold,

. 121

Ames v. Mannering, ,

. 1071

Adnam v," Cole,

. 359

v. Parkinson,

. 880, 898

Adye v. Fuilleteau,

. 887

Amherst v. Dawling, .

1038, 1053

African Steam Ship Co. v

Swanzy, 631

Amos V. Horner, 155, 178, 196, 197,'

Agar V. Fairfax,

. 447

198, 207, 217

V. Holdsworth,

. 447

Amphlett v. Parke,

. 315

Agra Bank v. Barry,

. 48

Amy's case, . .

. 32

Agra and Masterman's Bank, In re, 814

Ancaster v. Mayer, »

137, 290, 330

Aguilar v. Aguilar, ,

. 1017

Anderson v. Elsworth, .

. 597

Aislabie v. Eice, .

. 224

v. Eadcliffe, .

. 821

Alcock T. Sloper, ,

. 839

Andrew v. Andrew,

. 315

V. Sparhawk

. 132

Andrews, In re.

. 857

Alden v. Foster,

. 1061

T. Hulse .

. 1113

Alderson, Ex parte.

775, 777

v. Partington, .

. 712, 725

V. White,

. 1049

Anesley v. Anesl^,

. 664

Aldrich v. Cooper, 78, 91,

107,

108, 109

Angell, Ex parte, .

. 682

Alexander v, Alexander,

863, 880

Angerman v. Ford,

. 240

V. Graham (Lady)

. 134

Angerstein v. Martin, .

. 315

V. Wellington (

Ihe

Angle, Ex parte, . .

. 917

Duke of).

,

. 818

Anglesey's (Lord) case, .

. 937

Alexanders Minors, Be,

,

. 880

Anglo-Danubian Co. v. Eog

3rson, . 635

Allan V. Houlden, .

. 980

Anglo-Greek Steam Navigat

ion Co.

V. Kenning, , ,

.

. 985

In re, . . , ,

. 242

Vll

Vlll

TABLE OF CASES.

PAGE

FA an

Angus V. Angus, .

. 941, 942

Att.-Gen. v. Cleaver,

. 638

Anonymous, 29, 53, 113, 129, 130,

V. Crofts,

. 1063

133, 136, 177, 185, 253

,260

, 495,

V. Day. .

543, 548

503, 456, 626, 628, 62S

, 635, 683,

V. Downing (Lady),

. 964

688, 689, 694, 771,

784,

814,

V. Edmunds, .

. 246

899, 967, 1059, 1063,

1065, 1066

V. Fullerton, .

441,445

V. JoUand

. 253

V. George,

. 351

V. Walker

. 887

V. Gower,

. 29

Anson (Lord) v. Hodges

. 555

V. Graves,

. 103

Antrobus v. Davidson,

. 1008

V. Grote,

. 281

Apreece v. Apreece,

. 276

V. Hall, .

56, 953

Arab, The, .

. 110

V. Hamilton, .

. 474

Arbuckle, Re,

. 719

V. Harley,

. 357

Arbuthnot v. Norton,

. 817

V. Hickman, .

. 964

Archdeacon v. Bowes,

. 1076

V. Leicester, (Corp. o

f), . 873

Archer v. Hall,

. 991

V. Lepine,

. 943

V. Hudson, .

583, 599, 991

V. Manchester and Leeds

V. Preston, .

. 939, 941

Railway Co. .

. 641

Arglasse v. Muschamp,

941, 944

V. Marrett,

. 72

Arkwright v. Huntley {'.

jord^

, . 843

V. Mountmorris (Lor

i), . 104

Arlington (Lord) v. Mei

rickt

, . 992

V. Norwich (Mayor

of).

V. Storer,

. 96, 1063

263

, 642, 643

Armstrong v. Burnet,

. 302

V. Pargeter, .

. 60

Arnold v. Arnold, .

. 318

V. Parkin, . 269

, 270, 273

V. Chapman,

. 101

V. Pilgrim,

. 60

V. Ennis, .

. 343

V. Price, .

. 970

Arrowsmith v. Hill,

. 636

V. Robins,

. 311

Arundel v. Trevillian,

. 232

V. Sands,

264, 266

Ashbee v. Pidduck,

1007, 1008

V. Stephens, 52, 441

, 443, 104

Ashburner v. Macguire,

267

274,

V. Sturge,

.943

291, 294

V. Tomkins, .

. 103

Ashby V. Ashby, .

. 788

V. Tyndall, . 86, 103, 104

V. Jackson,

. 620

V. West Hartlepool

Im-

Ashenhurst v. James,

. 1055

provement Commrs., 642

Ashley v. Bailey, .

. 66

V. Weymouth (Lord),

. 103

Ashton V. Ashton, . 2(

)6,27

2, 280, 295

V. Wigan (Mayor), .

. 643

v. McDougall, .

787, 788

V. Wilkins,

18, 30, 49

V. Wood, .

. 545

V. Wilson,

. 917

Ashurst V. Mill,

. 848

V. Winchelsea (Earl

of), 103

Aspland v. 'Watte, .

. 898

Attwater

V. Attwater, .

. 280

Aston V. Aston,

It

3, 188, 210

Attwood

V. Attwater,

. 837

T. Curzon, .

.29

V. Banks,

. 638

V.Exeter (Lord),.

. 441

V. Small,

. 552

V. Heron,

. 636

Aubrey v. Middleton, .

. 132

V. Meredith,

. 479

Austen v

. Halsev, .

. 707

Athenffium Life Ass. Soc.

V.P(

joley, 812

Austin, Re, . ' .

. 696

Athol (Earl of) v. Derby

(Ear

lof). 939

V

. Austin, .

. 696

Atkins V. Delmege,

. 65

Aveline i

7. Melhuish,

. 873

V. Farr,

. 230

Avelyn v

.Ward, . . 273

297, 298

V. Hatton, .

439, 441

Averall v. Wade, . . 86

107, 108

V. Eevell, .

. 990

Ayles V.

Cox,

. 542

Atkinson, In re,

800, 808

Aylett V.

Ashton, .

. 554

V. Rawson, .

. 129

Ayliffe v

Murray, .

. 248

v. Smith,

. 1029

Aylward

V. Kearney,

. 586

v. Webb, .

406, 407

Aylwin v

.Bray, .

. 921

Atkyns v. Wright, .

. 957

Aynsly v

.Reed, .

. 1063

Atterbury v. Wallis, * .

53, 65, 71

Aynsworth v. P'ratchett,

. 317

Att.-Gen. v. Alford,

254, 897

V. Andrews,

. 642

Bachelor

V. Bean, .

. 914

V. Backhouse, .

60,65

Backhouse v. Hunter. .

. 629

V. Baliol Colleg

e, .

. 616

Backwell

V. Child, .

. 301

V. Bowyer,

. 445

Bacon v.

Bacon, . . 54,

909, 910

V. Buckland, .

. 967

v.

Chesney, .

982, 991

V. Christ Churc

h, :

. 534

Badnal v

Samuell,

. 986

TABLE OF CASES

IX

Badrich v. Stevens,

PAGE

. 294

Bagot V. Oughton, .

. 1019

Bailey V. CoUett, .

533, 534

V. Devereux,

. 636

V. Edwards, 985, 986

, 997',

1006, 1008

V. Ekins, .

. 114, 124

V.Gould, .

. 874

V. Hobson, .

. 481

V. Bichardson, .

. 62

Baillie V. Baillie, .

. 633

V. Butterfield, .

. 351, 360

V. McKewan,

, 11

Baily v. Ploughman,

. 130, 141

Bain v. Sadler, . . 1

26, 128, 141

Bainbridge v. Kinnaird,

. 554

Bainton v. Ward, .

. 140

Bali V. Harris,

. 127

Bambrigge v. Blair, 241, 2

42, 244, 248

Bainton V. Ward, .

. .139

Baker v. Baker,

. 286

V. Bradley, . 583, 5

34, 598, 843

V. Farmer, .

. 307, 308

V. Hull,

. 784

V. Martin, .

. 247

V. Morgans, .

. 26

V. Wetton, .

. 1068

V. White, .

229, 231

V. Wind, .

. 1059

Balchen v. Scott, .

. 910

Baldwin v. Belcher,

. 105

Balfe V. Eedington,

. 475

Ball V.Bali, .

689, 880

V. Coutts, . 703, 7(

)5, 706, 709

V. Harris,

. .130

V. Riversdale (Lord),

. 1069

Balmanno v. Lumley, .

. 554

Balsh V. Hyham, .

. 264

Bamford v. Bamford,

.• . 483

V. Creasy,

. 1105

Bank of Ireland v. Beresford

986, 1001

Bank of London v. Tyrrell,

. 253

Bank of Scotland v. Christie,

. 992

Bankhart v. Houghton, .

. 617

Banks v. Braithwaite, .

284, 319

Bannerman v. Clarke, .

. 535

Barber v. Brown, .

. 55

Barbone v. Brent, .

. 622

Barclay v. Eussell,

. 266

V. Wainwright, St

)0, 352, 356

Barden v. Meagher,

. 284

Bardswell v. Bardswell, .

950, 952

Bargent v. Thompson, .

. 1102

Barham v. Clarendon (Earl o

f), . 421

Baring v. Nash,

468, 475

Barker v. Damer, .

. 122

V. Devonshire (Duke (

)f), . 132

V. Goodair,

. 631

V. Holden, .

. 1103

V. May,

. 134

V. Eayner, .

. 294

Barlow v. Grant, .

720, 721

Barnard v. Cave, .

498, 500

Barnes v. Grant,

. 950

Barnes v. Rochester,

V. Eowley, .

V. Wood, .
Barnett v. Sheffield,
Barnewall, Ex parte,
Barnewell v. Cawdor (Lord),

Barnhart v. Greenshields, 51, 62, 65, 1051

Barnwell v. Iremonger,
Baron v. Berkley, .
V. Husband,
Barr's Trusts, In re,
Barrett v. Wyatt, .
Barren v. Sabine, .
Barret v. Beckford,
V. Blagrave,
Barrett v. Hartley,

V. Eing,
Barrington v. Tristram,
Barron v. Martin, .
Barrow v. Barrow,
V. Wadkin,
Barry v. Harding, .
V. Marriott, .
Barthelomon v. Scholey,
Barthrop v. West, .
Bartlett, Ex parte, .
V. Att.-Gen.,
V. Bartlett, '
V. Gillard,
V. Eees, .
Barton v. Barton, .
V. Cooke, .
V. Downes (Lord),
Barton's (Ezekiel) Trust,

PAGE

86, 107
. 289
547, 549
. 812
. 918
. 138

99, 138
. 915
774, 780
72, 800
. 917
1049, 1050
408, 428
. 1117
241, 243, 1048
547
312
1066
710
710
302

. 324

. 1064

. 691

. 892

809, 810

351, 407

1058, 1059

206, 210, 216, 217

. 277

542, 543

304

Will, In re the Trusts of, 792
Basan v. Brandon, . . . 277, 299
Bascombe v. Beckwith, . . . 506
Baseley v. Baseley, . 703, 706, 709

Basingstoke (Mayor of) v. Bolton

(Lord) ■ . 445

Basset v. Nosworthy, . 1, 5, 23, 24

Batchelor v. Middleton, . 1067, 1068

Bate V. Hooper, . . . 341, 879

Bateman v. Davis, . . 887, 919

V. Hotchkin, . . . 139

V. Eoss, . . . 855, 856

V. Willoe, . . .621

Bates V. Johnson, .... 6

V. Mackinley, . . . 304

Bateson v. Gosling, . . . 998

Bathurst v. De la Touche, . . 129

V. De la Zouch, . .129

V. Murray, . 703, 706, 707

Batson v. Lindegreen, . . . 124

Baud V. Fardell, . . . 332, 889

Baxendale v. Seale, . , . 498

Baylee v. Quinn, . . . .359

Bayley v. Bishop 289

V. Edwards, . . . 445
V. Williams, . . . 597
Bayly v. Tyrrell, . . . .820
Baynard v. Wooley, . . . 917
Beahan v. Beahan, . . . 278
Beauland v. Bradley, . . . 596

TABLE OB CASES.

PAQE

PAGE

Beard v. Traverg, .

, 701

Berdoe y, Dawson, .

. 598

Beasley v. Magrath,

714, 721

Berkeley v. King's College, .

. 819

Beauchamp v. Huntley (Marquia

V. Swinburne, . .

. 723

of), . . .

. 932

Bernard v. Drought,

. 18

Beaufort (Duke of) v. Berty,

646, 685,

V. Minshull, . 950

956, 963

692

, 694, 695

Berndtston v. Strang,

. 816

V. Neeld,

. 1106

Berrisford v. Milward, ■

, 32

V. Patrick,

. 616

Berry v. Bryant, ,

, 725

Beaufoy'a Estate, In re,

. 343

V. Mullen, ,

. 850

Beaumont v. Squire,

. 228

v. Young, ■

. 527

Beavan v. Oxford (Earl

of), .'

73, 794

Bertie v. Falkland (Lord), 163, 165,

Becher, Ex parte, .

. 682

173, 203,

212, 1088

Bechervaise v. Lewis,

. 1002

Berwick-upon-Tweed (Mayor of) v.

Beokford v. Kemble,

, 632

Murray, ....

. 992

V. Tobin,

. 314

Besant v. Eichards,

. 495

V. Wade,

. 1065

Bessonet v. Eobius,

. 56

Beckham v. Drake,

. 1098

Bethell v. Green, . ,

99, 138

Beckley v, Newland,

. 772

Bethune v. Kennedy, . 281

338, 342

Beckton v. Barton,

, 888

Betts V. Bureh, . . 1098,1117

Bedell v. Constable,

. 660'

Beverley's case,

658, 663

Beeaton v. Booth, .

. 311

Bick V. Motly,

909, 918

V. Stutely, .

. 553

Bickham v, Freeman, ,

, 114

Behrens v. Sieveking,

, 635

Biddle v. Jackson, .

. 709

Beilby, Ex parte, .

. 919

Biddies v. Biddies,

. 725

Belch Y. Harvey, ,

. 1065

Biddulph, Ex parte,

. 918

Beldring v. Bead, .

. 773

Biggleston v. Q-rubb,

. 399

Belhaven'a (Lord) case,

. 1112

Biggs v. Terry,

. 699

Bell V. Banks,

. 986

Bill v. Sierra Lake, &c., Co,,

, 641

V.Bell, ,

288, 309

Billage v. Southee,
Billingsly v. Critchet,

. 596

V. Carter,

1052

. 714

V. Clarke,

. 432

Bindley v. Moloney,

. 855

V. Coleman, .

. 899

Binks V. Eokeby (Lord),

534, 536

V. Cundall,

. 27

Einnjngton v. Harwood,

. 1076

V. London and No

rthwestern

Bimstead v. Coleman, .

. 494

Railway Compa

ny, .

. 779

Birch's case, , . , .

, 1061

V, O'Eeilly, .

. 635

Birch, Ee, , . . .

. 229

Bellamy v. Brickenden,

'l062, 1079-

v. Baker,

. 294

V. Sabine,

75,76

842,843

V. Ellames, .

47,53

Bellasis v. Ermine, 150

151,

152,

V. Joy,

. 534

163,1

77, 197

203, 207

V. Sherratt, .

. 287

V. Uthwatt,

391, 394

V, Wade, .

966, 971

Bellingham v. Freer,

. 1009

Birchell, Ex parte.

. 682

Bellringer v. Blagrave,

. 511

Bird V. Fox, ....

. 59

Belmore v. Belmore,

. 624

V. Hunsdon, .

218

Belton's Trust Estate, In

re, .

. 1021

V. Wood,

. 961

Belworth v. Hassell,

. 541

Birds v. Askey,

. 101

Benbow v. Davies,

. 1062

Birkett v. Hibbert,

. 703

B^ngough V. Walker,

389

390, 394

Birmingham Blue Coat School

In

Benham v. Keane,

. 48

re,

- 892

Benn v. Dixon,

337, 339

Bisco v, Banbury (Earl of), .

. 54

Bennet, Ex parte, .

. 1097

Bishop V. Bishop, ,

. 891

Bennett v. Col ley, .

921, 922

V. Colebrook,

, 791

V. Cooper, .

. 772

Bissett V. Burgess, ,

, 137

V. Honywood,

. 970

Blackall v. Combs,

, 621

V. Merriman,

. 845

Blackborn v. Edgeley, .

, 584

Benson v. Gibson, .

. 1096

Blackborough v. Davis, ,

. 129

V. Heathorn,

. 242

Blackie v. Clark, . . 516,

599, 708

V, Lamb, .

. 538

Blacklock v. Barnes,

. 1077

V. Wittam,

. 957

Blacklow V. Laws, .

. 531

Bensusan v. Nehemias,

. 406

Blackwood v. Davis,

. 1078

Bent v. Collins,

. 284

Blades v. Blades, .

42,44

V. Young,

.. 621

Blagden, Ex parte.

. 783

Bentley v. Mackay,

. 841

Blagrave v. Eouth,

. 590

Benyon v. Benyon,

853, 354

Blagrove v. Coore,

. 292:

TABLE OF CASE!

XI

^, . PAGE

Blair V. Nugent, . . 1068, 1071

Blake v. Blake, . . . .675

V. Hungerford (Sir Edward), 10

V. White, . . . 986, 1008

Blakely Ordnance Co., In re, . 814

Creyke's case, . 1112

Blakeney v. Baggott, . . . 510

Bland v. Bland, . . . .953

Blandy v. Widmore, 417, 426, 427,

428, 429, 430, 431
Blann v. Bell, . . . 338, 341
Blenkarne v. Jennens, ... 38
Blest V. Browne, .... 982
Blewett V. Jessop, .... 121
Blewitt V. Eoberts, . . . 284

Bligh V. Darnley (Earl of),
Blogg V. Johnson, .... 254

Bloomar, Ee, 475

Blount V. Blount, . . . 534, 535
V. Hipkins, . . .302

Blower v. Morrett, . . 309, 311

Bluck V. Mallalue, . . .242

Blue V. Marshall, .
Blundell v. Gladstone, . . .637
Blunden v. Barker, . . . 583
Blunt V. Bestland, .... 783
Boaler v. Mayor, . . . .989
Boddy V. Dawes, . . . .318
Bodenham v. Hoskyns, . . .873
Bodicote v. Steer, .... 473
Bodmin (Lady) v. Vandebendy, . 28
Boehm v. Wood, . . . 522, 538
Bolitho V. Hillyar, . . .849

Boliugbroke'a (Lord) case, . . 547
Bolding V. Lane, .... 1072
Bolton V. Bolton, .... 470
Bolton V. Ward,

(Duke of) V. Williams,
Bonar v. Macdonald,
Bond, Ex parte,
V. Green,
V. Simmons,
Bonham v. Newcomb,
Bonham's (Dr.) case,
Bonithon v. Hickmore,
Bonner v. Bonner, .
Bonnett v. Sadler, .
Bonney v. Bidgard,
Bonsall v. Bryne, .
Bonser v. Cox,

V. Kinnear,
Booker v. Allen, .
Booth V. Arlington,
V. Booth, 8!
V. Coulton, .
V. Leycegter,
Bootle V. Blundell,
Borell V. Dann,
Borton v. Borton, .
Bo.skellit v. Godolphin
Bostock V. Floyer, .
Boteler v. Spelman,
Boulcott V. Boulcott,
Boultbee v. Stubbg,

283

992

. 723

. 128

785, 786

1051, 1057

. 607

. 251

. 96

. 506

150, 151

. 1117

981, 982, 983

973

384, 387, 401

307

, 901, 904, 917, 920
. 288
. 635
. 133
. 60
. 788
. 128
882, 895
. 438
. 360
. 990

PAGE

Boulter v. Boulter, . . . 635

Boulton, Ex parte, . . . 799

Bourke v. Eicketts, . . . 318
Bourne v. Dodson, . . 740, 752

Boursot V. Savage, ... 71

Bouverie v. Prentice, . . 444, 445
Bovy V. Smith, .... 47
Bowaman v. Eeeve, ... 98
Bowden v. Bowden, . . . 341
V. Laing, . . . 724

Bowen v. Edwards, . . . 1048
v. Evans, ... 10, 18
Bower v. Sligo Commissioners, . 642
Bowes V. Toronto (City of), . . 262
Bowles' (Lewis) case, . . . 606
(Sir John) case, . . 137

Bowleg v. Eump, . . . 468, 477

V. Waller 543

Bowmaker v. Moore, . . . 1008
Bowman v. Yeat, .... 434
Bowra v. Wright, .... 474
Bowser v. Colby, . . 1100, 1101

Bowyer v. Bright, .... 544

V. Woodman,
Box, In re,

V. Box, .

V. Jackson,

Boyce's Minors, In re,

Boyd V. Belton,

V. Brooks,

Boynton v. Boynton,

V. Parkhurst,
Boys V. Boys,

V. Williams, .
Boyse v. Colclough,
Brace V.Marlborough (Duchess of),

21, 29
Bracebridge v. Buckley, 1103, 1105,

1107, 1109
Bradbury v. Morgan,
Bradford v. Foley, .
Bradshaw v. Bradshaw,
Bradwell v. Catchpole,
Brady v. Curran, .
Braithwaite v. Britain,
Brampton v. Barker,
Bradlyn v. Ord,
Brandon v. Brandon,

V. Woodthorpe,
Brassey v. Chambets,
Bray v. Fogarty, .
Braybrooke (Lord) v. Meredith, .
Breadalbane (Marquis of) v. Chan-

dos (Marquis of),
Brealey v. Collins,
Brearcliffe v. Dorrington,
Brend v. Brend,

1072
303
787
787
891
32
129
728
103
341
281
943

993
. 101
683, 715
. 1054
. 850
. 132
. 29
. 50
. 1077
. 791
. 477
. 1114
780

Brennan v. Morran,
Brereton v. Gamul,
Brett, Ee, .
Brewer, Ex parte, .

• V. Swirles,
Brewin v. Austin, .
Briant v. Mann,

632

. 505

. 808

., 1021

351, 359, 360

.' .29

. 628

. 681

. 139, 920

. 1060

. 472,

xn

TABLE OF CASE!

Brice v. Stokea, 332, 865

873, 903,

905, 906, 919

Bricknell v. Stamford,

. 636

Brickwood v. Annis,

. 986, 1000

Bridge v. Beadon, .

. 810

V. Brown, .

. 720, 722

Bridgeman v. Dove,

. 133

V. Green, 56'

J, 569, 579,

593, 598

Bridger'B caae.

. 1112

Bridger v. Bice,

. 511

Bridges v. Longman,

. 1109

Bridgman v. Gill, .

. 874

Brigga v. Penny, .

. 950, 962

Bright's Trusts, In re.

. 59, 811

Bright v. Larcher, .

. 825

V. North, .

. 643

Brine v. Ferrier, .

. 359, 360

Bristow V. Bristow, 305,

312, 356,

363, 849

V. Whitmore,

. 813

British Empire Shippi

ng Co. y.

Soames,

. 622

Brittlebank v. Goodwin,

. 916

Broad v. Broad,

1020, 1024, 1027

V. Selfe,

. 243, 1048

Broadbent v. Barlow,

. 109, 140

Broadhurst v. Balguy,

. 905, 920

Brocksopp V. Barnes,

. 241, 251

Bromley v. Holland,

. 1056

V. Wright,

. 283

Brond v. Brond, .

. 1021

Bronsdon v. Winter,

. 280, 298

Brook V. Brook,

. 961

r. Hertford,

. 474

Brooke (Earl) v. Bulkel

jy, . . 47

V. Garrod, .

. 1049

T. Mostyn,

. 850

fLord) V. Kouth
(Lord) V. Warv

waite, . 504

rick (Earl

of), ..

. 292

Brooking v. Jennings, .

. 124

Brooks V. Keynolds,

. 623

v. Stuart, .

. 1008

"Brooksbank v. Higginbo

tliam, . 1063

Brotherton v. Hatt,

. 38, 67, 69

Broughto.n V. Broughton

. 244, 250

■ ' v. Hutt,

. 502, 838

JBroun V. Kennedy, .

. 588, 597

BrowHj In re.

. 683

V. Bateman,

772, 773, 780

y. Brown, .

. 309, 311

y. Casamajor, .

. 755

V. Cole, .

. 1065

y. Cross, ,

. 922

V. Dawson,

. 406

T. De Tastet, .

. 259

V. Gellatly,

. 343, 344

y. Heathcote,

. 752

y, Higgs, 947, 950, 964, 965,

966, 971, 973
V. Lake, . , . .122
y. Litton, . , . 259, 888
y. Peck, . . . .236

Brown v. Sewell, .
y. Tanner, .
y. Temperley,
Brown's Trusts, Ee,
Browne, In re,

V. Butter,

y. Carr,

y. Collins,

V. Coppinger,

V. Groomhridge,

y, Paull, .

y. Sayage,
Browne's Estate, In re,

y. Will, Ke,
Brudenell v. Bonghton,
Bruen v. Bruen,
Bruere y. Pemberton,
Bruin y. Knott,
Brumridge V. Brumridge,
Brunsden y. Woolridge,
Bryan y. Clay,
Bryant y. Easterson,
Brydges y. Landon,

y. Wotton,
Bubb V. Yelyerton,
Buchanan y. Greenway,
Buck y. Eobson,
Buckle y. Mitchell,
Bucknal y. Boiston, 750,
Buckeridge v. Glasse,
Buckworth y. Buokworth,
Bugden y. Bignold,
Buggins y. Yates, .
Bulkeley y. Wilford,
Bull y. Vardy,
Buller y. Plunkett,
Bullock V. Bennett,

V. Sadlier,

y. Wheatley,
Bulteel y. Jarrold,
Bulwer v. Astley,
Bunbury's Estate, In re,
Bunbury v. Bunbury,
Burden v. Burden,
Burdet v. Pix,
Burdick y. Garrick,
Burge y. Brutton,

y. Wolf,
Burgess v. Eve,

y. Wheate,
Burgh V. Langton,
Burgoyne y. Hatton,
Burke v. Greene, .
V. Killikelly,
y. Lynch,
y. Prior,
y. Smyth,
Burke's (Richard) case,
Burlace y. Cooke,
Burleton v. Humphrey,
Burn V. Carvalho, 774,
Burne y. Madden,
Burnell v. Brown, ;

Burnet y, Dixe,

PAGE

. 1077
772, 803
. 317
60, 800
696, 698
882, 886
. 1000
. 304
, 509
299, 300
723, 724
804, 805
. 546
. 288
. 133
. 389
. 136
719, 722
904, 912
967, 970
122, 137
. 316
, 132
. 240
. 240
1061, 1062
. 122
. 50
759, 763, 767
. 919
. 713
77, 108
. 951
. 589
. 957
. 799
. 226
. 28
. 874
. 1008
. 1049
. 555
. 632
. 241
. 129
. 258
129, 242
. 31
. 995
47, 264, 265
. 1061
55, 59
. 821
. 121
. 1066
. 1105
. 529
985, 1005
14, 16, 20
225
775, 776, 779
. 1116
. 543
. 129

13

TABLE OF CASES.

XIU

PAGE

Burnham v. Bennett, . . . 784

Burrell, In re, . . . 120, 134

T. Smith, . . . .635

Burridge v. Bradyl, , . . 309

V. Eow, . . . .917

Burrough v. Moss, . . . 816

V. Philoox, . . .965

Burrowes v. Gore, . . . 916

T. O'Brien, . . .917

Burrows v. Lock, .... 33

V. WaUs, . . , .921

Burt V. Hellyar, . . . .470

Burton v. Darnley (Earl of), . 701

v. Mount, . . . 341

V. Pierpoint, . . . 103

Bury V. Oppenheim, . . . S83

Busby V. Seymour, ... 97

Bushby V. Munday, . . 632, 633

Bushell V. Bushell, . . 49, 77

Bushnell v. Parsons, . . . 725

Butcher v. Musgrove, . . . 819

V. Stapely, ... 51

Bute (Marquis of) v. Glamorgan-

shire Canal Co.,
V. Stuart,
Butler's Trusts, In re.
Butler T. Bray (Lady),
V. Butler, .
T. Carter,
T. Freeman.

V. Gray,
Butterworth v. Walker,
Buxton V. Buxton,
V. Lister, .
Byam T. Sutton, .
Byde v. Byde,
Byne v. Blackburn,
Byrchall v. Bradford,
Byrne v. Carew (Lord),

V, Uorcott,

441,444
. 681
791, 794
. 180
. 712
. 916
318, 680, 681,

684, 703, 706

. 967

. 509

. S74, S75

486, 490, 504

. 287

. 389, 407

. 726

919

.' 855, 856

. 881

Cadman v. Horner, . . 504, 505
Cafe V.Bent, . . . .340

Caffrey v. Darby, . . . 264, 874
Calcraft v. Eoebuok, . . 533, 543
Caldeoott v. Caldecott, 315, 338, 343, 889
Caldwell, Ex parte ; in re Ourrie, . 800
Oalisher v. Forbes, . . .800
Callaghan v. Callaghan, . . 498
Callisher v. Bischoffsheim, . . 837
Calma<Jy v. Calmady, . 453, 455,

463, 464, 465, 466, 467, 469

Calthorpe, Ex parte, . . . 888

Calverley v. Williams, . . .498

Calvert v. Armitage, ' . . . 104

V. Gordon, . . 993, 1001

V. London Dock Company, 991

V. Sebbon, . . - 240

Calye's case, 763

Camilleri v. Fieri, . .' . 697

Campbell, James, In re, . . 637

V. Beckford, . . . 1065

v. Campbell, . . 390, 395

Campbell v. French,

V. Graham, .
V. Hay,
T. Houlditeh,
V. McConaghey,
V. Mackay,

FAQE

. 991
277, 305, 319
. 555
. 632
. 311
. 694, 699

V. Eadnor (Lord), 357, 360
Candler v. Tillett, . 874, 899, 906

Caney v. Bond, .... 874
Cann v. Cann, S27, 834, 841, 845,

847, MS
Canning v. Canning,
Cannings v. Flower,
Cannon v. Johnson,

Canny v. Pox
Cape V. Cape,
Capel V. Butler,
Caplin's Will, Be,
Carbis, Ex parte,
Carden v. Butler, .
CareVs Estate, Ee,
Carew v. Cooper, .
Carleton v. Leighton,
Carmichael v. Wilson,
Carnes v. Nesbitt, .
Carpenter v. Herriot,
Carr v. Eaatabrooke,

V. Ingleby, .

v. Living,

V. Taylor,
Carrodus v. Sharp,
Carron Iron Co. v. Hunter,
v. Maclaren

472

719

475

945

725

1002

964, 970, 971

804, 806

. 1114

. 806

. 817

. 772

712, 720

. 1116

. 583

. 408

. 310

724, 725

. 783

534, 536

. 303

632,

634, 944

. 989, 996

. 301

6, 7, S, 9, 11, 53

Carstairs, Ex parte,
Carte v. Carte,
Carter v. Carter, .

V. Ely (Dean of), . . 539

V. Saunders, . . . 133

V. Taggart, . . .307

Carteret v. Petty, . . .940, 942

Carthew v. Enraght, . . . 965

Cartlidge v. Cartlidge, . , .728

Cartwright v. Cartwright, . 273, 855

V. Pettus, . . 940, 942

V. Pulteney, . . 452

Carver v. Bowles, .... 386

V. Eichards, . . . 544

Casamajor v. Strode, . . 543, 546

Casborne v. Scarfe, 1035, 1046, 1052

Case v. James, .... 11

Cass V. Thompson, . . . 1116

Castel-Sarraain (Eeligieuses Ursu-

lines de) v. Charron, . . 581

Castle V. Castle, .... 723

V. Fox 278

V. Warland, . . .882
V. Wilkinson, . . . 549
Castleton (Lord) v. Fanshaw

(Lord) 271

Cater's Trust, Ee, . . . . 585

Cato V. Irving 803

Cattley v. Arnold, . . . 474

Cave V. Cave, . . 708

XIV

TABLE OF CASES.

PAGE

PAGE

Cave V. Roberts, .

. 266

Cholmondeley (Lord) v

Clinton, . 823

Cavendish v. Greaves, .

. 813

Chown V. Parrott, .

. 850

V. Mercer, .

. 719

Chowne v. Baylis,

774, 776

Cawdor (Lord) v. Lewis,

. 617

Christian v. Field,

. 1063

Cawley v. Poole, .

. 849

Christie, In re,

. 682

Cecil V. Plaistow, .

. 980

Christophers v. White,

. 241

Chadwick v. Maden,

. 509

Christay v. Courtenay,

. 136

V. Turner,

. 48

Churchill v. Grove,

. 73

Chadwin, Ex parte.

. 308

Churchill v. Hobson (L

ady),

. 912

Chalie v. Pickering,

. 637

Churlton v. West,

. 409

Chamberlain v. Lee,

. 529, 581

Clack V. Carlon, .

. 241

Chambers, Ex parte,

. 722

V. Holland, .

. 880

v. Caulfield, .

. 855

Clapton V. Bulmer,

. 970

V. Chambers,

. 838

Clare Hall (Master of) v

. Harding,

V. Crabbe,

. 583

586, 618

V. Godwin,

. 317

Clare v. Bedford (Earl c

f), ■

. 82

V. Goldwin, 245, 24

6,716,

Clarendon (Earl of) \

^ Hornby,

1048, 1054

470,

472, 473

V. Griffiths, .

. 546

Clarke v. Browne,

> •

. 296

V. Harvest,

. 130

V. Burgh, .

1023

V. Miuchin, 870

,906,

V. Devlin, .

,

988

907, 911

V. Laurie, .

.

644

Champernowne, v. Brooke,

. 535

V. Lucy,

,

175

Champney, Ex parte, .

. 682

V. Sewell, .

814

Chaneey v. Kees, .

. 324

Clark's case, .

,

736

V. Wootton,

. 380

Clarke, Ex parte, .

636

Chancey's case, . 380, 4C

6, 409, 410

V. Berkeley,

220, 226

Chaplin, Ex parte.

. 889

V. Clayton,

468, 477

Chapman v. Esgar,

. 141

V. Franklin,

. 482

V. Hart,

. 293

V. Grant, .

479

501, 503

v. Salt, .

. 399

V. Green, .

. 793

V. Turner,

129, 180

V. Hart, .

. 1112

Chappie V. Mahon,

. 1048

V. Henty, .

985,' 1001, 1007

Charlton v. Coombes, .

215, 228

V. Ormonde, 6

24, 625

626, 635

V. Durham (Earl

of).

V. Parker, 2

22, 228

224, 225

888, 909

V. Sewell, .

,

. 407

V. Low, .

. 10

V. Wilson, .

.

. 986

V. West, .

407, 408

V. Woodward,

.

. 791

V. Wright,

. 128

V. Yonge, .

. 442

Chatteris v. Young,

. 363

Clarkson v. Edge, .

.

. 1115

Chauncey v. Graydon, . 1£

3, 206, 210

Clavering's case.

. 616

Chave v. Farrant, .

411, 412

Clavering v. Ellison,

210, 680

Chaworth v. Beech, . 27

4, 277, 805

Clay V. Kufford, .

. 530

Chedworth v. Edwards,

. 443

V. Willis,

.

. 134

Cheetham y. Ward,

. 1004

Claydon v. Green, .

. 540

Cherry v. Mott,

. 104

Clayton's case.

. 759

Chertsey Market, In re.

. 917

Clayton v. Cooks, .

. 442

Chester's (Lady) ease, .

. 673

Clements v. Welles,

56, 64

Chesterfield v. Janssen, 2!

52, 507, 921

Clemow V. Geach, .

5

Chetham v. Audley (Lord),

. 846

Clermont v. Tasburgh,

505, 553

Chetwynd v. Chetwynd,

. 728

Clifford V. Beaumont,

207,

213, 228

Cheval v. Nichols,

42, 44

V. LfiwLs, .

180, 131

Chichester v. Coventry, 36

&, 391, 409

Clifton V. Burt,

. 98

Chidley v. Lee,

. 412

V. Cookburn,

. 841

Child V. Abingdon (Lord),

. 585

V. Lombe, .

. 950

V. Child, .

. 887

Clinan v. Cooke, .

494,

495, 496

V. Elsworth,

. 312

Clinton v. Hooper, 1007,

1016, 1018, '

V. Stephens,

. 183

1019, 1020

Chilliner v. Chilliner, 1114,

1116, 1117

Clive V. Beaumont,

. 533

China Steamship Co., Ee ; Ex

parte.

V. Carew,

917,

920, 921

Mackenzie,

. 812

V. Clive,

302,

304, 312

Chinnery v. Evans,

1071, 1072

Close V. Close,

. 989

Chissum v. Dewes,

. 128

Clough V. Bond,

. 884,

889, 915

Choat V. Yeats,

. 277

V. Dixon, ,

. 884,

912, 915

TABLE OF CASES,

XV

Clough V. Frencli, .

PAGE

. 122

T. Lambert,

. 855

Clowes V. Higginson,

498, 499

Coard v. Holdernesa,

. 305

Coates V. Coatea,

. 1003

Cobre Copper Mine Co., In re

. 1111

Cochrane v. Willis,

. 510

Cock V. Cock,

. 857

v. Cross,

. 129

V. Goodfellow,

. 887

V. Bichards,_ .

. 230

Cockayne v. Harrison, .

. 316

Cockburn v. Peel, .

891, 892

Cockell V. Taylor, .

812, 820

Cocker v. Bevis, .

. 1059

V. Quayle, .

887, 920

Coekcroft v. Black,

. 128

Cockerell v. Barber,

240, 319

V. Cholmeley,

. 921

T. Dickens,

. 627

Cocking V. Pratt, .

. 583

Cochran v. Cochran,

. 277

Cocks V. Foley,

. 434

V. Gray,

. 1078

V. Nash,

. 1004

Cocksedge v. Cocksedge,

. 855

Coddrington v. Webb, .

. 622

Coffin V. Cooper, .

221, 530

Cogswell V. Armstrong, .

99, 138

Coham v. Coham, .

. 683

Cohen T. Alean, .

. 945

V. Waley, .

. 891

V. Wilkinson,

. 642

Colby V. Gadsden, . . 5

06, 527, 532

Cole V. Davis,

. 759

V. Gibbons, .

. 552

V. Gibson,

. 233

V. Kernot,

. 773

V. Scott, .

. 279

V. Sewell,

. 469, 474

V. Sims, .

. 117

V. Turner,

. 132

V. Wade,

. 971

V. Willard, .

. 409, 410

Colegrave v. Manby,

. 301

Coleman v. Coleman, . 2

n, 277, 294

Coles V. Jones,

. 812

V. Trecothick,

. 502

Coles' Will, In re, .

. 319

Collet T. De Cols, .

.• .72

Colleton V. Garth, .

. 292

Collett V. Collett, .

. 224

Collier v. Collier, .

. 725

V. Jenkins,

. 543

v. McBean,

. 512

Collins, Ex parte, .

. 589

V. Archer, . 16, 1

3, 23, 24, 25

V. Blantern,

. 232

V. Carey, .

. 241

V. Collins, .

. 342

V. Hare,

. 593

V. Lewis, .

98, 99, 138

Collinson v. Lister,

. 875, 896

Collison T. Curling,

. 282

Collyer v. Ashburner, .

V. Fallon, . . . .

V. Finch, . . . .
Colman v. St. Alban's (Duke of), .

V. Eastern Counties Eail-
way Co.,
Colne Valley and Halstead EaUway

PAGE

312

817

11

1074

642

Co., Be,
Colston V. Morris, .
Colyer v. Clay,

V. Colyer, .

V. Finch, .
Combe v. Wolfe, .
Compton V. Bloxham,
Comyns v. Comyns,
Connelly v. Connelly,
Conry v. Caulfield,
Constable v. Bull, .
Constancia, La,

Consterdine v. Consterdine, 886, 895, 898

Conway v. Shrimpton,
Good V. Good,
Cook V. Addison,
V. Black,
V. Dawson,
V. Gregson,
V. Waugh,
V. Wright,
Cook's Settled Estates, In re,
Cooke V. Clay worth,
Y. Collingridge,
V. Greves, .
V. Lamotte, .
Cockney v. Anderson,
Cookson V. Cookson,
V. Hancock,
Coombe, In re,

V. Stewart,
Coombes v. Mansfield,
Coope V. Cresswell,
Cooper V. Cooper, .
V. Day,
V. Evans, .
V. Joel,
V. Phibbs, .
V. Keilly, .
Coore V. Todd,
Coote V. Boyd,
V. Coote,
V. Mammon,
Copeman v. Gallant,
Copis V. Middleton,
Copley V. Copley,
Coppin V. Fernyhough,
Corbet v. Davenant,

V Tottenham,
Corbett v. Barker,
V. Brock, .
V. Tottenham,
V. De Cantillon
Corbett' s case,
Cordingley v. Cheeseborough
Cork V. Wilcock, .
Corkers, Minors, In re.

1006

837, 942

. 443

. 774

132

118, 119, 135, 628

505

890
674
510, 540
. 919
19, 53
. 985
. 240
. 1048
. 208
. 820
953
110

838

892

507

259

847

583, 593, 596, 600

. 945

. 1048

. 363

. 800

. 1060

. 49

126, 1071

. 220

. 363

983

. 980

. 838

. 817

309, 311

350, 356, 357, 362

508

65

757, 767

746

4

389, 396
54
477
673
1027
593, 600
693
49
462
551
29
220

XVI

TABLE OF CASES.

PAGE 1

PA»E

Corley v. Stafford, .

589

Craven's (Lord) case, .

. 755

Cornel v. Sykes,

1063

Crawshay v. Collins,

. 259

Cornewall v. Cornewall,

138

Cray v. Mansfield,

. 586

Cornfield v. Wyndham,

283

Craythome v. Swinburne

'J ■

. 1007

Cornwall, In re,

105

Creaghv. Wilson, 153,

161,

174,

Cornwalls, In re, .

696

176, 189, 196, 198, 206, 207,

210, 214

Corsellis v. Patman,

1059

Creed V. Creed, . 27e

i, 282,

305, 310

Cory V. Cory,

584, 836

842

T. Perry,

. 791

V. Eyre,

12

Cresswell v. Cresswell,

.

. 351

T. Gertcken, .

32

v. Dewell,

,

. 791

Coslake v. Tilt,

539

Creuze v. Hunter, .

.

. 685

Cesser v. Collinge,

56

Creyke's case.

.

. 1112

Costabadie v. Costabadie,

973

Crickett v. Dolby, .

.

317, 318

Costello V. O'Eorke,

917

Crockat v. Crockat,

272,

276, 295

Coster v. Tumor, .

531

Crockett v. Crockett,

,

. 725

Costigan v. Hastier,

508

Croft V. Goldsmid,

,

. 1105

Cotham v. West, .

712

V. Lumley, .

.

. 1109

Cothay v. Sydenham,

57

(Lady) v. Lyndsey

7

. 614

Cottam V. Eastern Counties Kail-

V. Pike,

756,

764, 769

way Co.,

899

Crofton V. Ormsby,

i-i

, 62, 540

Cotterell v. Purchase, .

'1049;

1051

Croker v. Kelsey, .

. 833

Cottesworth v. Stephens,

,

631

Crommelin v. Crommelin,

221, 226

Cottrell's Estate, In re, .

721

Crompton v. Sale,

387, 408

Couch V. Stratton,

428, 429

431

Cromwell's case.

.

. 828

Coulson V. Allison,

593

Croome v. Lediard,

.

. 500

Court V. Eobarts, .

254

Crosbie v. Mayor of Liverpool

. 103

Courtney v. Taylor,

121

Croskey v. European and American

Courtois v. Vincent,

694

Steam Shipping Co., .

. 622

Coutts V. Ackworth,

594

Cross V. Kennington,

131, 132

Coventry v. Chichester,

392

V. Sprigg, .

. 985

V. Higgins, .

221

Crosse v. Cocke,

. 129

Cowdry v. Day,

1047

V. Smith, .

. 614

Cowell V. Gatcombe,

902

Crouch V. Waller, .

. 856

Cowgill V. Oxmantown (Lord),

529

Crow V. Eobinson,

. 794

Cowles V. Gale,

.

540

Crowder v. Clowes,

. 363

Cowman v. Harrison, .

. ,

953

Crowe V. Crisford,

. 341

Cowper V. Mantell,

290, 301

305

v. Del Kio,

. 621

V. Smith, .

988

Crowfoot y. Gurney,

. 776

Cowx V. Foster,

855

Cruwys v. Colman,

970, 971

Cox (Sir Charles), In re

the credit-

Cuddon V. Tite, . .

. 536

ors of,

. 134

135

Cudmord v. Eaven,

. 1086

T. Brown,

1086

Culpepper v. Aston,

74, 98

V. Coventon, .

56, 59

543

Culpepper's case, .

6

Y. Cox, .

. 345

, 476

Cumberlege v. Lawson,

. 982

V. Dolman,

.

1072

Cummins v. Cummins,

121, 258

V. Higford,

1086,

1087

Cunningham v. Antrobu

s, .

. 791

T. Middleton, .

,

505

Cunliff V. Manchester a

ud Bolton

V. Parker,

,

264

Eailway Co.,

. 642

Cox's case.

, ,

114

Cunliffe v. Cunliffe,

. 950

Coxe V. Basset,

131

Curie's (Auditor) case.

646,'

648,

Coxwell V. Franklinski,

916

649, 661

Crabtree v. Poole,

,

51

Curling v. Austin,

. 547

Crackett v. Bethune,

,

318

Curre v. Bowyer,

. 626

Cradock v. Owen,

. 265

, 266

Currie v. Pye,

,

. 356

V. Piper,

95, 243

, 244

Curry v. Pile,

348, 359

Cragg V. Holme, .

.

507

Curtess v. Smalridge,

,

. 621

Craig V. Wheeler,

338

Curtis, In re,

686,

692, 728

Crallan y. Oulton,

,

132

V. Auber,

. 772

Crampton v. Marshall,

, ,

122

V. Curtis,

482,

483, 728

Cranch v. Cranch,

, ,

324

V. Kippon, .

683, 953

Cranmer's case.

. 406

, 408

Curzon v. Lyster, .

452

453, 455

Cranstown (Lord) v. Johnston,

940

Custance v. Cunningham

,

593, 596

Craven v. Brady, .

215

Cuthbert v. Baker,

. 544

Craven v. Knight, .

.

755

Cutterback v. Smith,

. 114

TABLE OF CASES.

XVll

Cutts V. Goodwin,
V. Thodey,

r,

531,

Dacre v. Patrickson,
Dady v. Hartridge,
Dagley v. Leake, .
D'Aguilar v. Drinkwate:
Dalby v. Pullen, .
Dale V. Lister,
Daley v. Desbouverie,
Dalton, Ex parte, .
Daly, In re, .
Daniel v. Adams,

V. Newton,

V. Skipwith,

V. Warren,
Daniels v. Davison,
Dann v. Spurrier, .
Darbey v. Whittaker,
D'Arcy v. Blake, .
Darcy v. Hall,

V. Maddock,
Darke v. Martin, .
Darley v. Darley,
Darlington, Ex parte,
Darlington (Earl of) v. Bowes, . 436
V. Hamilton, . 56, 542

Dartmouth (Mayor of) v. Silly, . 992

47,

PAOB

. 608
. 532

266
138
324
223
543
548

172, 222, 223
. 703
. 699
. 510
. 726
. 1057
339, 342
62, 63, 543
618, 1117
504, 545
26, 483
. 1056
. 681
882, 887
. 712
. 712

Dashwood v. Bithazey,
V. Blithway,
V. BuLkeley,

206,

Daubeny v. Cockburn, .
Davall V. New Eiver Company,
Davenhill y. Fletcher, .
Davenport V. Hinchliffe,
V. Stafford, .
Davey v. Barber, .

T. Prendergrass,
Davidson v. Procter,
Davies' Trusts, In re,
v. Austen,
V. Bush, .
V. Davies,
T. Gardiner,
v. Hodgson,
v. Morgan,
V. Nicolson,
V. Sear, .
V. Stainbank,
V. Thomas,
V. Topp, .
Davile v. Peacock,
Davis v. Angel, ...
v. Chambers,
V. Davis, ...
V. Dowding, . . .
V. Gardiner,
V. Hone, ...
v. Marlborough (Duke of)
V. May,
V. Spurling,
V. Strathmore,

1057
1061
210,

223, 224
. 140

264

309

432

881

534

1008

961

. 139

. 720, 721, 812

. 310

. 583, 711, 722

99

918, 919, 921, 922

. . .276

. 143

53, 63

. 985, 1007

. 55

. 137, 138

628

228

375

696

1058

132

526

818

1075

911

73

V. Symonds,

495, 504

Davis V. Thomas,

V. Turvey, .
V. West,
V. Whitmore,
(Marcus), In re,

Davis' (Dr.) case, .

Davy v. Barbai, .
V. Hooper, .

Davys v. Boucher,
V. Howard,

Dawson v. Clarke,

PAGE

1049, 1097
. 477
. 1100
. 1062
. 639
. 653

533, 534, 535
. 969
. 387
. 423

263, 912, 952

V. Dawson, 385, 394, 409, 1048
, Heam, . . .288

Day V.

418

V. Jay,

V. Killett,

V. Massey,

V. Prince,

Arundel,

Croft,

V. Day, 288,

V. Finn,

V. Luhke,

V. Pargrave, .

V. Wells,

Days V. Boucher, .

Deacon v. Smith, .

Dean v. Allen,

Deane v. Teste,

Dearden v. Evans,

Dearie v. Hall,

Debeze v. Mann, .

De Costa v. Mellish,

Deering v. Winchelsea (Lord),

Defiries v. Smith, .

Deg V. Deg, .

De Gendre v. Kent,

De Hoghton v. Money,

Delacour v. Freeman,

De Manneville v. De Manneville,

680, 688, 689,

Denny v. Hancock, . . 507, 509

Dent V. Bennett, . 566, 581, 592, 593

V. Dent, . . . .817

Denton v. Davy, .... 245

De Pothonier v. De Mattos, . . 780

Derbishire v. Home, . . . 921

Derby (Earl of) v. Duke of Athol, 621

Derbyshire, &o., EaUway Co. v.

Serrell, 620

Derwentwater's (Lord) case, . 833

Desbody v. Boyville, . . .225
Descarlett v. Dennett, . . . 1109
Deserambes v. Tomkins, . .318
De Tastet v. Shaw, . . .128

Dettmar v. Metropolitan and Pro-
vincial Bank, . . . 584, 599
Devaynes v. Noble, . . . .916
V. Bobinson, . . . 878
Devenish v. Brown, . . . 530
Devese V. Pontet, . 408, 427, 428, 432
De Visme v. De Visme, . 533, 536
Devonshire (Duke of) v. Eglin, . 616

. 700
188, 289
. 586
. 10
. 28
252, 363
289, 302, 707, 808
. 546
. 540
. 783
. 510
. 384
419, 423, 424
. 626
. 280
. 1091
794, 798, 801
400, 405
. 682

82, 84
. 999
. 141
. 303
. 820
. 386

698

De Weever v. Eochport,
De Witte v. Palin,

699, 726
. 713

XVUl

TABLE OF CASES,

Dibbs V, Goren,

PAGE

. 812

Dickenson v. Teasdale, .

. 125

Dickin v. Edwards,

275, 282

Dickinson v. Burrell, .

. 821

Dickson's Trusts, .

. 210

Dickson, In re, . . .

. 121

Digby V. Craggs, .

. 1055

Dighton V. Withers,

. 1062

Dilkes V. Broadmead, .

, 133

Dillon V. Coppin, ,

. 468

(Lord) v; Costelloe, .

. 31

V. Harris, .

. 224

V. Mountoashell (Lady

), 649, 693

Dimes V. Scott,

315, 344

Dimsdale v, Dimsdale, .

. 843

Ding well y. Askew,

. 298

Diplock V. Hammond, .

776, 780

Disney v. Crosse, .

, 275

Dix V. Burford,

900, 902

V. Keed, .

, 240

Dixon's case, .

. 1112

V. Olmius, . 56

L, 563, 570

T. Parker,

.1051

V. Saville,

. 1052

Dobree v. Schroder,

. 631

Dobson V. Laud, .

. 1079

V. Leadbeater, .

. 28

V. Lyall, .

. 629

Docker v. Somes, .

. 255

Dodson V. Sammell,

. 626

Doe V. Allen, .

. 488

Doe d. Morecroft v. Meux,

. 1110

DoUand v. Johnson,

. 121

Doloret V. Rothschild, .

. 539

Dolphin V. Aylward,

. 108

DomvlUe v. Baker,

. 292

V. Taylor,

. 293

Donaldson V. Donaldson,

. 794

Donne v. Hart,

. 794

V. Lewis, .

. 124

Donovan v. Needham, .

. 314, 318

Dorin v. Harvey, .

. 527

Dormay v. Borradaile, .

131, 132

Dornford v. Domford, .

. 318

Dorset (The Duke of) v. G

irdler

(Sergeant),

. 434

Douce V. Torrington (Lady),

. 131

Douglas V. Andrews,

. 714

V. Archbutt, .

. 247, 250

V. Congreve,

. 315

v.'Cooksey,

. 93

V. 'Culverwell, .

. 1051

V. 'Douglass,

. 278

V. 'Russel,

. 772

V. Willes,

. 394, 413

V. Witterwronge,

. 62

Dove V. Everard, .

. 912

Dover v. Giregory,

. 132

Dowle V. Saunders,

. 53

Dowling V. Hudson,

. 132

V. Tyrell,

. 314

Down V. Worrall,

968, 973

Downe v. Morris, .

. 1064

Djwnes V. Bullock,

. 916, 921

PAGE

Dowson V. Solomon, , . . 512
Doyle V. Blake, . . . 907, 912
Doyley v. Attorney-'General, 964,

968,971
Drake v. Martin, , , . . 281
Drapers' Company v. Davis, . 588, 589
Drew V. Norbury (Lord), . . 49
Drewe V. Corp, .... 542
Drewry V. Thacker, ^. .624, 625
Drinkwater v. Falconer, 276, 295,

297, 387

49

894

615

. 945

53, 65

. 56, 506

. 794

365, 384, 399

. 552

873,

Driscoll, Ee, .
Drosier v. Brereton,
Druig V. Parker (Lord),
Druramond v. Drummond,
Dryden v. Frost, .
Drysdale v. Mace,
Duberley Vi Day, .
Dubost, Ex parte, .
Duddell V. Simpson,
Dudley, Ex parte, .... 714
Dufaur v. Professional Life Insur-
ance Office, .... 773
Duffell V. Wilson, . . ' . .540
Duffield V. Carrie, . . .363
Duffy V. Orr, .... 988, 989
Duggon V. Kelly, . . . .209
Du Hourmelin v. Sheldon, . . 266
Dunbar v. Tredennick, . . .47-
Duncan v. Cannan, . . . 792
V. Chamberlayne, . . 805
V. Duncan, . . 277, 307
V. Howell, . 455, 459, 463
V. M'Calmont, . . 629
V. Watts, . . . .311
Dunn V. Cox, .... 621
Dunnage v. White, . . . 848
Dunster v. Glengall (Lord), . . 798
Durand's Trusts, Ee, . . . 805
Durant V. Titley, .... 855
Durham v. Armstrong, ... 78
V. Lancester, ... 78
(Earl of) V. Legard, . 550
(Lord) V. Wharton, . 384
Durour v. Motteux, . . .179
Durrant v. Friend, . . . 292
Du Vigier v. Lee, . . . 1073
Dyer v. Bessonnett, . 99, 138, 311
V. Hargrave, . . . 528
V. Kearsley, . . • . 625
Dyke v. Walford, . . . .266
Dykes v. Blake, .... 546
Dyose v. Dyose, .... 308
Dyson V. Hornby, .... 534

Eade v. Eade,
Eads V. Williams,
Eales V. England, .
Eardley v. Owen, .
Earle v. Bellingham,

V. Hopwood,
Early v. Benbow, .

V. Middleton,
East V. East, .

950, 953
. 538

947, 950
. 126

286, 312

820, 822
. 359
. 359
. 880

TABLE OF CASES,

XIX

East Grinstead case,
East India Company v. Atkyns,
' V. Donald,
V. Vincent,

PAGE

• 49
. 1047
. 39
. 616

Eastwood V. Vinke, . 406, 407, 431
Eaton V. Lyon, .... 1105
V. Watts, . . . .951
Eaves v. Hickson, . ■ . . 894
Eavestafifv. Austin, . . .311
Eddlestone v. Collins, . 1029, 1062
Eden's {Sir Frederick) case, . . 718
Edes V. Brereton, .
Edge V. Salisbury, .
Edinburgh (The Provost of) v. Au-

bery, ....
Edmonds v. Peake,
Edmondson v. Crosthwaite,
Edmunds v. Low,

V. Waugh,
Edward OUver, The,
Edwards, Ex parte,

V. Cunliffe,

V. Grove,

V. Hall, .

V. Martin,
Edwards' Estate, Be,
Edwards-Woods v. Majoribanks
Egans' estate. In re,
Egbert v. Butter, .
Eland v. Eland,
Elborough v. Ayres,
Elder v. Maclean, .
Elibank (Lady) v. Montolieu, 709

789,791
Elisha V. Elisha,
EUard v. Cooper,

V. Llandaff (Lord),
EUcock V. Mapp, .
Ellice, Ex parte, .
Elliott V. Davenport,
V. Merryman,
Ellis V. Barker,
V. Eden,
V. Ellis,
V. Griffiths.

V. Walker, 270, 275, 276, 301, 305

Ellison V. Airey,

V. Cookson,
V. ElUson, ,
V. Elwin, .

Elsey V. Lutyens,

Kenrick,

Elton V. Elton, 148, 149, 177, 197,^ 476
Elvy V. Norwood,
Elwes V. Causton, .
Elwin V. Williams,
Ely (The Bishop of) V.
Emery v. Hill,
V. Wase,
Emmanuel College v. Evans,
Endsworth v. Griffiths,
England, In re,

V. Lavers,
English V. Darley,
Enraght v. Fitzgerald,

703
970

943
882
303
407, 408, 409
. 1072
. 110
. 27
1059, 1060
. 712
. 276
806, 1058
. 1048
551
546
874, 902
. 60
. 821
805, 807

1064

95

504, 511

. 266

. 888

. 312

. 72

587, 848

279, 302

208, 405

1060, 1061

131, 239, 248
. 400
. 373

. 788
. 48

1074

. 307

. 788

. 443

. 943

. 550

. 1047

. 1049

685, 714, 721

. .350

985, 986, 996

. .533

Equitable Reversionary Interest
Society v. Fuller, . . .891

Errat v. Barlow 719

Errington v. Aynesley, . . . 1096
V. Chapman, . . 717

Escherisch & Baring, In re, . . 639
Esdaile v. Stephenson, . . 535, 543
Espey V. Lake, . . . 599, 900
Espin V. Pemberton, ... 53
Essex V. Baugh, .... 48

Etty V. Bridges 807

European Bank, In re, . 70, 72, 815

European Co. v. Royal Mail Co., 1080

Evans v. Bagshaw, . . . 469

V. Bicknell, . . 53, 795

V. Bremridge, 622, 623, 982,

983, 1006

216,

V. Brown, .
V. Carrington,
V. Jones,
V. Massey, .
V. Bossier, .
V. Whyle,
V. Wyatt, .
In re, .
Everitt v. Everitt,
Evroy v. Nicholas,
Ewin V. Lancaster,
Exton V. Greaves, .
Eyre v. Bartrop, .
V. Burmester,
V. Dolphin, .
V. Everett, . 1000,
V. Hanson,
V. Hatton,
V. McDowell,

V. Shaftesbury (Countess of),
Eyston v. Simmonds,

Fagg's (Sir John) case, .
Fagnani v. Selwyn,
Faine v. Brown,
Pairbrother v. Welchman,
Fairfax v. Montague,
Falkland (Lord) v. Bertie,
Fall v..Elkins,
Fallons, In re,
Farebrother v. Gibson, .

V. Welchman,
Farley v. Bryant, .
V. Turner, .
Farmer v. Compton,
Farnham v. Phillips,
Farrant v. Blanchford, .
Parrar.v. Barraclough, .
Farrer v. Nightingale, .
Farrow v. Bees,
Faulkner v. Bolton,
Fawcet v. Fothergill, .
Fawcett v. Lowther,
Fawkner v. Watts,
Fazakerley v. Gillibrand,
Fearns v. Young, .
Featherstonhaugh v. Fenwick,

120

853

338

716

218

991

. 139

. 727

587, 595

919

1006, 1008

. 1043

985, 990

. 12

55

1001, 1007

1060

1087

74, 794

645

529

6, 14
. 679

508, 509
. 621
. 1065

658, 663
. 469
. 697
. 505

621, 622
. 126
. 776
. 172
. 387
921

895, 920
. 540
53,60
. 1065
. 1063
. 1053
. 712
. 394

264, 335
. 259

XX

TABLE OF CASES

pAeE

PAGE

Fee V. Cobine,

. 1049

Foden v. Hewlett,

. 204

Feistel v. King's College,

Cam-

Foley V. Maillardet,

. 945

bridge,

. 818

v. Parry,

. 950

Fell V. Brown, ' .

. 1063

Fonnereau v. Poyntz,

. 308

v. Chambprlain,

. 495

Fontaine v Taylor,

. 281

Fellows V. Mitchell,

. 903, 919

Forbes v. Ball,

. 970

Feltham v. Clark,

. 800

V. Carney, .

. 1116

Fendall v. Nash, .

. 717

V. Lawrence,

. 351

Fenton v. Browne,

. 506

(Lord) V. Nelson,

. 42

Fenwick v. Clarke,

. 883

V. Boss,

. 887

V. Green well, .

. 874

Ford V. Batley,

. 288

Ferguson v. Ferguson, .

. 278

V. Chesterfield (Earl

of).

V. Tadman, .

. 536

1049,

1062, 1097

Ferrars v. Cherry,

. 47, 50, 55

V. Fleming, . . 272, 277, 295

Ferris v. Goodbm-n,

. 386, 389

V. Fowler,

. 950

Festing v. Allen,

. 318

V. Sheldon, .

763, 766

Featherstone v. West, .

. 917

V. Tynte,

. 395

Pew V. Perkins,

. 1110

V. Wastell, .

. 1059

Field V. Beaumont,

. 621

V. White, .

48, 50, 77

V. Boland,

. 47

Ford's case, .

. 754

V. Brown,

. 709

Fordham v. Wallis,

. 97

V. Megaw,

. 776, 779

Fordyce v. Bridges,

. 968

V.Moore, . . 649,709,710

V. Ford, . . 517, 528, 543

V. -Mostin,

. 409

Forrest v. Elwes, .

. 245

V. Beckett, .

. 281, 875

Forrester v. Leigh (Lord), 81, 99,

Fielden v. Slater, .

. . 64

100, 102, 103

Fielding v. Preston,

. 139, 338

Forshaw v. Higginson, .

. 880

Filmer v. Gott,

. 488, 502

V. Welsby,

. 597

Finch V. Brown, .

. 1075

Forsight v. Grant,

. 407

V. Finch,

. 389, 396

Forster v. Thompson, .

. 131

V. Hattersley,

. 131, 132

Forteblow v. Shirley, .

534, 543

V. Hollingsworth,

. . 971

Fosbrooke v. Balguy,

. 258

V. Salisbury (Earl of)

. 1117

Foster v. Blackstone,

. 798

V. Shaw, . 19, 53,

54, 66, 1060

V. Blagden,

103, 104

Finden v. Stephens,

. 954, 959

V. Cockerell,

798, 811

Finlay v. Barton, .

. 945

V. Cook,

. 101

Firmin v. Pulham,

. 585

V. Deacon, .

. 536

Firth V. Greenwood,

. 529

V. Denny, .

693, 702

Fisher v. Fisher, .

.. 140

V. Eddy,

. 1058

Fishmonger's Company v. Maltby, 900

V. Handley,

120, 134

Fitzer V. Fitzer, .

. 855

V. Harvey, .

. 1059

Fitzgerald v. Bult,

. 639

V. Smith,

. 286

V. Falconberge,

. 66

V. Vassal,

. 941

V. Pringle,

. 887

Fourdrin v. Gowdey,

103, 407

V. Stewart, .

. 777

Fowler v. Fowler, 406, 41

0, 413, 840

Fitzwilliams v. Kelley,

. 302

V. Eeynal,

.893

Flack V. Longmate,

. 1061

V. Boberts,

. 624

Flanagan v. Great Western

Eail-

V. Willoughby,

282, 305

way Company,

. 511

V. Wyatt, .

. 593

Flattery v. Anderdon, .

. 1106

Fox, In re, .

. 105

Fleming v. Armstrong, .

. 481

V. Fox, .

. 952

V. Buchanan, .

. 94, 140

V. Garrett,

. 129

V. Walgrave, .

. . 177

V. Hill,

. 639

Fletcher V. Green, .

. 917

V. Mackreth, . . 25

4, 260, 921

V. Stevenson, .

. 626

V. Scard,

. 1114

Flight V. Barton, .

. 56

Foy V. Foy, .

. 350

Flint V. Hughes, .

. 952

Frail v. Ellis,

. 70

V. Walker, .

. 779

Frampton v. Frampton,.

. 851, 856

V. Woodin, .

. 552

France v. France, .

. 481

Flood V. Finlay,

. 504

Francis v. Clemow,

. 132

Flower v. Flower, .

. 854

V. Francis,

. 887, 893

Floyer v. Lavington,

. 1049

V. Grover,

. 125

Fludyer v. Cocker,

. 534

Francklyn v. Fern,

1051, 1063

Fluker v. T-ylor, .

. 613

Frank v. Edwards,

. 992

TABLE OF CASE!

XXI

PAGE 1

PAGE

Frank v. Frank, .

827

Gardiner v. Slater,

. 214

Franklin v. Green,

716

Gardner, Ex parte.

. 531

Franklyn, Ex parte.

896

V. Barber,

. 724

Franks v. Cooper, .

128

V. Cazenove, .

. 772

Fraser v. Byng, .

356

V. Garrett,

. 626

V. Palmer, .

244

V. Hatton,

276, 295

V.Wood, .

531

V. McCutcheon,

. 247

Frauuces' case.

170

V. Townshend (Marquis

Fray v. Vowles,

850

of), . . .

. 419

Frazer v. Jones,

23

V. Walker, .

. 628

V. Jordan, .

986

Garlick v. Jackson,

. 1061

Frederick v. Frederick,

646

Garnett, In re, . . .

. 696

Freeland v. Pearson,

969

Garrard v. Dinorben (Lord),

. 122

Freeman v. Fairlie,

246

V. Grinling,

. 504

V. Oxford (Tl

le B

ishop

Garrett v. Besborough (Lord)

, . 532

. of), .

664

V. Pritty, 155, 177

, 178, 216

V. Simpson,

314

V. Wilkinson, .

. 589

Freemantle v. Bankes,

387

Garth v. Meyrick,

. 358

Freemoult v. Dedire,

124

V. Ward,

74, 75

Freer v. Hesse,

73

Garthshore v. Chalie, 419, 426

,427,

French, Ex parte, .

896

428, 429, 430

V. Campbell,

991

Gartside v. Isherwood, .

. 565

V. Davidson,

973

Gaskell v. Chambers,

. 242

V. French,

119

V. Gaskell,

468, 469

V. Harrison,

425

Gaskin v. Eogers, .

. 283

V. Hobson,

921

Gaunt V. Taylor, .

. 121

V. Macale, 1

114,

1116,'

1117

Gawden v. Draper,

. 855

Fromow's estate, Ke,

890

Gaynon v. Wood, .

. 406

Frowd V. Lawrence,

636

Geaves, Ex parte, .

. 918

Fry V. Fry, .

878

Gedye v. Montrose (Duke of)

,538,

V. Morris,

294

540, 535

V. Noble,

482

483

Gee V. Pearse,

. 529

V. Porter, 51, 151, 158,

163,

v. Smart,'

. 1017

165, 17

5,212

225

Geldard v. Hornby,

. 1060

Fryer, In re,

(Sir John) v. Bernard

903

General Estates Co., In re

; Ex

.

944

parte City Bank,

. 814

V. Butter, .

337

Gen. Steam Navig. Comp. v.

Rolt, 981

V. Gildridge,

129

George v. Milbanke,

. 140

Morris,

276

294

Geraghty v. Geraghty, .

. 898

Fulham v. Macarthy, .

581

Gerrard v. Boden,

. 771

Fuller V. Bennett,

65, 66

V. O'Eeilly, .

69, 1117

V. Knight,

917

Gervis v. Gervis, .

98, 138

V. Eedman,

123

Ghost V. Waller, .

. 883

Fulwood's case.

763

Gibbins V. Eyden, .

99, 138

Furness v. Caterham Bail. Cc

1062

V. Taylor,

882, 886

Furnival v. Bogle,

631

Gibbons v. Hills, .

. 276

Fursaker v. Robinson, .

.828

Gibbs V. Gibbs,

. 344

Fyler v. Fyler

873

, 898

V. Harding, .

. 853

Fynn, In re, .

680

686

V. Ougier,

94, 97

Gibson, In re.

. 297

Gainsborough (Countess of) -s
ford, ....

'. Gif-

622

V. Bott, 312, 314, 315

,324,
332, 343

Gale V. Gale, .

295

V. Dickie,

. 230

V. Lindo,

234

V. Doag, .

. 1106

Galley v. Selby, .

,

1053

V. Ingo, .

. 61

Gallimore v. Gill, .

132

V. Jeyes, .

582, 591

Gallini v. Noble, .

281

V. Patterson,

517, 527

Galsworthy v. Strutt,

1117

V. Russell,

593, 594

Galton V. Hancock,

94

, 102

V. Seagrim,

105, 108

Garbut v. Hilton, .

150

V. Spurrier,

. 546

Gardener v. Ennor,

588

GifFard v. Williams,

. 470

Garder v. Adams, .

820

GifFord, Ex parte, . 989,

1004, 1006

Gardiner v. Griffith,

1053

V. Manley,

. 121

V. Sheldon,

660

Gill V. Attorney-Genera

1,

. 910

xxn

TABLE OF CASES.

PAGE

Gillaume v. Adderley, . . 280, 305
Gillespie V. Alexander, . 142, "357

GiUett V. Wray, 150, 153, 175, 192,

197, 198, 227, 214

Gilliat V. Gilliat, .

281

Gilpin V. Southampton (Lady), .

625

Gipps V. Hume,

.

853

Girling v. Lee,

.

114

Glascott V. Lang, .

629

Gleaves v. Paine, .

'l017,'

1023

Glendinning, Ex parte, 988, 990, 996

Glengall (Earl of) v. Barnard, 390

, 401

Glissen v. Ogden, .

583

Glyn V. Hood,

8oi

, 802

V. Scawen,

. 438

, 441

Goate V. Fryer,

626

Goddard v. Carlisle,

598

V. Complin,

827

Godfrey's Trusts, In re.

789

Godfrey v. Furzo,

757

V. Godfrey,

950

V. Littel, . 44

i, 443

, 444

Godolphin (Earl of ) v. Penn

eck, .

130

Golding V. Haverfield, .

394

Goldring v. Inwood,

961

Goldsmid V. Goldsmid, 424, 4

27, 42E

),432

Goldsmith v. Bruning, .

438

Goleborn v. Alcock,

5

Gomley v. Wood, .

241

Gomm V. Parrott, .

18

Gompertz v. Pooley,

622

Goodall v. Harris,

656

Goode, In re,

693

T. Job,

1068

Goodenough)V. Goodenough,

483

V. Tremamondo,

339

, 340

Goodfellow V. Burchett,

394

Goodier v. Ashton,

1058

Goodinge v. Goodinge, .

970

Goo'dlad v. Burnett,

278

Goodman v. Grierson, .

1047

Gordon v. Adolphus,

218

V. Bowden,

287

V. Calvert,

993,

1001

V. DufF,

277

V. Gordon,

845

(Lord William) v.

Hert-

ford (Marquis o

n, ■

503

V. Irwin, .

707

V. Mahony,

538

V. Shaw,

29

V. Trail, .

264

Gore's Estate, In re.

546

Gore V. Stockpoole,

1061

Gorge V. Chansey,

880

Gornall, In re.

683

Gosling V. Carter, .

131

Gott V. Atkinson, .

125

Gough V. Bult,

968

Gould V. Fleetwood,

250

V. Tancred, .

1074

Gonrlay v. Somerset, (Duke o

1, •

1118

Govett V. Richmond,

32

Gower v. Mainwaring, .

964,

967

PAGE

Graham, Ex parte, . . . 1008

In re 681

V. Graham, . . . 406

V. Johnson, . . 812, 815

V. Londonderry, . .103

V. Maxwell, . . .632

v. Oliver, . .548, 553

V. Wickham, . . . 432

Grainge v. Warner, . . . 810

Grant v. Campbell, . . . 245

V. Dyer, . . . .224

V. Lynam, .... 970

V. Mills 47

Gratitudine, The, . . . .110
Grave v. Salisbury (Lord), 371,

374, 375, 394, 399, 404
Graves v. Graves, . . . .131
V. Hughes, . . .296

Gray v. Chiswell, . . . .143
Grayburn v. Clarkson, . . 878, 879
Graydon v. Hicks, . . . 224

Great Luxembourg Railway Co. v.

Magnay, .... 242, 253
Great Western Railway Company

V. Cripps,

502, 481

V. Rushout,

. 642

Greaves v. Powell,

. 114, 137

V. Wilson,

. 552

Greedy v. Lavender,

. 791

Green, Ex parte, .

• 722

V. Bridges,

1105, 1107

V. Britten, .

. 339

V. Howard,

. 967

V. Low,

. 1118

V. Marsden,

953, 956

V. Smith, .

. 512

V. Symonds,

. 291

V. Wynn, .

. 997

Greene v. Greene,

. 951, 952

Greenfell v. Dean and Canons of

Windsor, .

818, 819

Greenfield v. Edwards, .

. 52

Greenhalgh v. Manchester and Bir-

mingham Railway Co.,

. 616

Greenhough v. McClellan,

985, 1007

Greenhill v. Greenhill, .

. 1040

Greening v. Beckford, .

. 807

Greenslade v. Dare,

26, 70

Greenwell v. Greenwell,

714, 717

Greenwood v. Greenwood,

358, 847

V. Jemmett,

. 307

v. Percy,

. 477

V. Taylor, .

95, 96

V. Wakeford,

. 917

Gregory v. Gregory,

. 910

V. Lockyer,

. 136

V. Pilkington, .

. 1080

V. Smith, .

. 956

V. Wilson, 1102,

1107, 1118

Gregson v. Riddle, 516, 518

522,

537, 538

Greig v. Somerville,

. 142

Grey Coat (Governors of) v. West-

minster Improv't Commrs.

. 73

TABLE OF CASES.

XXIU

Grierson v. Eyre, .
Grievson v. Kirsopp,
Griffies v. Griffies,
Griffin v. De Veulle,
Griffith V. Morrison,
Griffiths V. Evan, .
V. Grieve,
V. Porter,
V. Robins,
Griggs V. Gibson, .
Grimstone, Ex parte,
Grinstead (East) case,
Groom, Re, .
Grosvenor v. Green,
Grove v. Bastard, .

V. Price,
Groves' Trusts, Re,
Groves v. Perkins,
v. Wright,
Grugeon v. Gegard,
Gude V. Worthington,
Guepratte v. Young,
Guest V. Homfrey,
Gully V. Crego,
Gumell V. Gardner.
Gumey v. Oranmore (L(
Guy V. Sharp,
Gwynne v. Edwards,
Gynn v. Gilbard, .

Hack V. Leonard, .
Hadow V. Hadow, .
Haines v. Taylor,
HakewiU, Re,
Hales V. Cox,

V. Darell,
Haley v. Bannister,
Halford v. Gillow,
Halgate v. Jennings,
Hall's Will, Re, .
Hall V. Dench,

V. Hadley,

V. Hall,

V. Hallett,

V. Hill, 361,

V. Hugonin, .
V. Hutchons, .
V. Jones,
V. Kendall,
V. Macdonald,
V. Potter,
V. Smith,
V. Staw^ell,
V. Tapper,
V. Thynne,
V. Wilcox,

Halsey v. Grant, .
V. Halsey, .

Halton V. Foster, .

Haly V. Barry,

Hambling v. Lister,

Hamil v. Stokes, .

Hamilton v. Hector,

561,

721,

527,

lOrd),
351,

PAGE
. 441

. 971
. 447

564, 587
. 315
. 957
. 324
. 921
. 593
. 716
. 1063
. 49
. 692
56, 59
. 533

875, 878
. 285
. 846
. 316
. 1065
. 964
. 792

532, 541
. 950

774, 776
. 61

361, 363
90, 95

703, 709

1102,

1103, 1104

. 723

. 617

. 692

. 105

. 407, 409

363, 714, 718, 719

. . .639

. 896

. 316

. 1038

. 1001

. 694

. 821

362, 399, 401,

413, 414, 784

. 790, 791

. 996

. 683

. 130

. 128

. 233

56, 528

. 1071

. 123

. 232

. 1007

. 541

. 707

. 971

624, 807

. 295

. 812

671, 672

Hamilton v. Royse,
V. Watson,
V. Wright,
(Duke of)
(Lord),
Hamley v. Gilbert,
Hammond v. Ainge,

V. Messenger,
V. Neame,
V. Smith,
Hanbury v. Hanbury, .
V. Hussey,
V. Kirkland, .
V. Litchfield, .
V. Spooner,
Hanby v. Roberts,

. 980, 981
. 241
V. Mohun

. 233, 586

. 712, 725

. 1088

. 780

723, 725

. 407

. 391

. 474

904

548

240

96, 97, 98

62,

91,

of).

Hancock v. Attorney-General, . 1059
V. Prowd, . . .128
Hancom v. Allen, .... 885

Hands v. Hands 971

Hankey v. Vernon, . . . 622
Hannam v. South London Water-
works Company,
Hanning v. .Ferrers,
Hansard v. Hardy,
Hansen v. Miller,

Hansom v. Allen

Harbin v. Darby, .
Harcourt v. Knowel,

V. Wrenham,
Harden v. Parsons,
Harding v. Glyn, .
V. Grady,
V. Hardrett,
V. Suftblk (Countess
Hardinge v. Webster, .
Hardingham v. NichoUs,
V. Thomas,
Hardman v. EUames, .
Hardwick v. Wright, .
Hardy v. Caley,

V. Martin, . 1096, 1114, 1115
V. Metropolitan and Fi-
nance Co.,
V. Robinson,
Hare v. Purges,
Harford v. Browning,

V. Purrier,
Hargrave v. Tindal,
Hargreaves v. Bothwell,
Hargthorpe v. Milforth,
Harland v. Trigg, .
Harley v. Harley,

V. Moon, .
Harman v. Hai-man,
Harmer v. Priestley,
Harmood v. Oglander,
Harnett v. Yielding, 504, 509, 510,

511, 549
Harning v. Castor,
Harrington v. Atherton,
V. Long,
V. Wheeler,

1105
. 32
. 1065
. 784
. 809
. 251, 252
.■ 6
. 134
887, 912, 920
946, 964, 965
131
29
434
621
. 28
383, 413
. 29
. 1004
• 874

. 785
. 1118
. 240
. 536
. 124
66, 67, 69
. 899

950, 955
. 788
. 307
. 122
. 1065

124, 138

. 606
. 333
. 821, 822
517, 522,

627, 528

XXIV

TABLE OF CASES.

PAGE

PAGE

Harris v. CoUett, .

639

Head v. Egerton, .

750

V. Harris, .

483

895

V. Godlee,

843

V. Ingledew,

29

Heald v. Hay,

817

V. Kemble,

505

Heap V. Tonge,

840

V. Poyner, .

341

Heaphy v. Hill, .

'. 532

538

V. Tremenheere,

588

592

Hearle v. Greenbank,

317

V. Watkins,

132

Heath v. Dendy, .

309

Harrison v. Andrews,

783

y. Hay,

984

V. Asher,

299

V. Key,

986

Harrison v. Buckle,

628

V. Lewie,

219

V. Forth,

49

V. Nugent, .

310

V. Goodall,

700

V. Percival,

977

V. Gurney,

632

635

V. Perry,

.' 272

317

V. Nettleship,

621

Heathcote's case, .

758

V. Rowley,

240

Heathcote v. North Staffordshire

V. Thexton,

880

Railway Co.,

640

Harrisson v. Duignan,

125

Heather v. O'Neill,

1020,'

1029

Harryman v. Collins,

59,

619

Heaton, Ex parte, .

918

Hart V. Clarke,

616

V. Dearden,

468

V. Middlehurst,

140

V. Marriott,

903

V. Stephens, .

783

Hedges v. Harpur,

284

V. Tribe, . 69

3, 723

727,

973

Hele V. Bexley (Lord),

1074

Hartland v. Murrell,

.

132

flelling V. Lumley,

509

Hartley v. Ostler, .

.

359

Helsham v. Langley,

510

V. Rice,

230

Heming v. Clutterbuck,

'. 350,

360

V. Russell,

831

Hemming v. Gurrey,

357

V. Smith, .

695

Hemmings v. Munkley,

150,' 153,'

Hartopp V. Hartopp,

384

584

843

163, 176, 186, 197, 206, 207, 210

213

Hartwell v. Chitters,

134

135

Henchman v. Attorney-General, .

266

Harvey, Ex parte, In re

Blakely, .

990

Henckell v. Daly, .

245

V. Cooke, .

844,

846

Henderson v. HendersoE

>

634

V. Harvey,

317

715

V. M'lver, ■

252

V. Mount, .

593

594

Hendrick v. Wood,

939

V. Tebbutt,

1061

Heneage v. Meredith,

961

Harvy v. Woodhouse,

27

Hennell v. Kiland,

622

Harwood v. Bland,

546

Hennessey, Ex parte,

806

V. Fisher,

783

y. Bray,

873

V. Wrayman,

134

Hensman v. Fryer,

98, 99,

138

Haslewood v. Green,

307

Henvell v. Whitaker,

132

V. Pope,

98,

141

Hepworth v. Heslop,

124

Hassall v. Long,

993

Herbert, Ex parte, .

72

Hassell v. Hawkins,

409

Herbet's case,

657, 703,

704

Hastings (Lord) v. Astl

ey, •

1023

Heme v. Heme, .

. 415,

583

V. Orde, .

788

Heron v. Heron, .

583

Hatch V. Hatch, 561, 56

I, 586,

587!

Hertford v. Lowther,

.' 302,

351

588,

592

(Marquis of) \

'. Boore, .

532

Hatton V. Hooley, .

346

Hervey v. Aston, 148, 14

9, 151, 152,

Haughton v. Haughton,

209

153, 155, 158, 159, 160

, 161, 162,

Havens v. Middleton,

1107

163, 165, 173, 175, 176

, 178, 179,

Hawes v. Wyatt, .

583,

594

184, 191, 196, 199, 20

7, 208, 212,

223

Hawker v Hallewell,

816

Hervey v. Smith, .

53, 63

Hawkins v. Day, .

122

Heseltine v. Heseltine,

291

V. Lawes,

134

Hesse v. Stevenson,

72

Hawkshaw v. Parkins,

985,"

996,'

1007

Hethersell v. Hales,

264

Hawksworth v. Hawksw

orth,

696,

697

Hewett V. Foster, .

909

Hawthorne v. Sheddon,

274

V. Hewett, .

967

Hayes v. Caryll,

522,

529

V. Snare, .

312

V. Hayes,

277,

280

Hewitt V. George, .

307

V. Oatley, .

887

V. Loosemore,

'53, 54, 70

Haymes v. Cooper,

817

V. Morris, .

315

Haynes v. Haynes,

311,

319,

636

V. Nanson,

1059

V. Mice, .

407

427,

428

Heygate v. Annesley,

786

Hays, Ex parte,

722

Heyman v. Dubois,

105

Haywood v. Cope, .

507

Heysham v. Heysham,

'. 603,

715

TABLE OF CASES.

XXV

PAGE

PAGE

Heywood, Ex parte,

.

774

Hodge V. Churchward, .

. 125

Hibbert v. Jenkins,

,

253

V. Lewin, .

. 286

V. Shee, .

540

Hodge's Settlement, In re.

. 681

Hicks V. Hastings,

542, 443

444

Hodgens v. Hodgens, . 703,

709, 714

V. Hicks,

921

Hodges V. Grant, .

. 275

V. Pendarvis,

177, 207

214

V. Peacock,

. 351

V. PhiUps, .

542

Hodgson V. Dean, .

. 77

V. Ross,

.

284

V. Nugent,

. 1001

Hickson v. Aylward,

32

Hodkinson v. Fletcher, .

. 854

V. Collis, .

73

V. National Live Stock

Hide V. Haywood,

263

Insurance Co.,

. 242

Hiern v. Mill,

'. '. 53, 68

Hodle V. Healey, . . 1065, 1066

Higgins V. Samels,

505

Hogg V. Snaith,

. 494

V. Shaw, .

74

Hoggart V. Scott, .

. 532

Higginson v. Clowes,

495

Hoghton V. Hoghton, 583, 600, 848, 849

Higgs V. Dorkis, .

481

Holder v. Holder,

. 328

V. Northern Assa

m Tea Co.,

614

Holderstaffe v. Saunders,

. 637

Higham's case.

608

Holford V. Wood, .

358

Hill V. Audus,

630

V. Yate, .

. 1059

V. Barclay, 1103, 1

105, '1109^

1112

Holgate V. Haworth,

. 897

V. Buckley,

. 510, 546

551

V. Jennings, 339, 342

343, 896

V. Chapman, .

715

HoU V. Hadley, .

. 985

V. Fulbrook, .

473

Holland V. Clark, .

. 1071

V. Gomme,

,

680

V. Holland,

122, 479

V.Hill, .

317

696

V. Teed, .

. 985

V. Paul,

817

HoUingsworth, v. Grassett, .

. 240

V. Eattey,

284

285

Holmes' Estate, Ee,

. 588

V. Turner,

62

3, 703,

705

Holmes, Ee, ....

. 943

HiUary, Ee, .

681

V. CoghiU,

139, 140

Hills V. Eowland, .

1108

V. Dring, .

. 887

Hilton V. Woods, .

822

V. Holmes,

. 387

Hinchcliffe v. Hinchclifl

e, 35

7, 389,

396

V. Kidd,

. 815

Hinckley v. Maclarens,

971

V. Lysaght,

175, 197

Hind V. Selby,

341

Y. Matthews,

. 1051

Hinde v. Blake,

772

v. Powell,

. 64

Hindle v. Taylor, .

287

Holroyd v. Marshall,

. 772

Hindley v. Westmeath,

854

V. Wyatt, .

. 535

Hindson v. WeatherUl,

588

Holt, Ex parte.

. 918

Hine v. Dodd,

66

V. Dewell,

74, 811

Hinton v. Pinke, .

272,

276

V.Holt,

. 614

Y. Toye,

139

Holworthy v. Mortlock,

. 621

Hinves v. Hinves, .

338

Home V. Pringle, .

. 911

Hinxman v. Poynder,

950

Hone V. Medcraft, .

282, 301

Hiorns v. Holton, .

70

Honner v. Morton, . 786,

788, 790

Hipkin v. Wilson,

1023

Honywood v. Honywood,

. 702

Hipkins v. Amery,

53, 54

Hood V. Clapham,

338, 345

Hipwell V. Knight,

53

I, 537,

538

V. Easton, .

. 1079

Hitchcock V. Sedgwick,

72

V. Oglander,

. 509

Hitchins v. Basset,

4

Hooley v. Hatton, 346, 350,

352,

Hitchon v. Bennett,

.

120

354,

356, 359

Hixon V. Wytham,

137

Hooper v. Marshall,

. 999

Hoare's Trust, Ee, .

708

Hope V. Carnegie,

. 632

Hoare v. Hoare, .

855

V. Hope,

671,

680, 853

V. Parker, .

29

V. Liddell, .

18, 55

Hobbs V. Hull,

855

Hopgood V. Ernest,

,

. 53

V. Norton, .

32

V. Parkin,

. 894

Hobday v. Peters, .

140,

880

Hopkins, Ex parte.

671, 674

Hobson V. Blackburn,

104

V. Myall,

. 921

Hobson V. Ferraby,

708

Hopkinson v. Leach,

,

. 130

V. Neal,

287

V. Eoe,

. 252

V. Sherwood,

468,

474

Hopton V. Dryden,

128

, 129, 130

V. Trevor, .

772

Hopwood V. Hopwood,

. 383

Hockley v. Bantock,

898

Hora V. Hora,

. 724

V. Mawbey,

.

969

Hore V. Becher,

. 789

XXVI

TABLE OF CASES.

Horlock V. Smith, 422,

PAGE

425, 1075,

1076, 1077
. 1077

Hornby v. Matcham,

Horucastle v. Charleaworth, . 468

Home V. Thompson, . . . 1101

Horneblow v. Shirley, . . . 543

Hornsby v. Lee, . . . 786, 791

Horwood V. Griffith, . . 282, 305

V. West, . . . 950, 954

Hosier v. Eeed, . ... 498

Hoskin v. Simcox, . . . 1075

Hosking v. Nicholls, . . 280, 281

Hoskins V. Hoskins, . . 397, 399

Hotchkin v. Dickson, . . . 837

Houghton V. Harrison, . . . 318

Houlditch V. Donegal (Lord), . 942

V. Wallace, . . .812

House V. Way, . . . .342

Hovey v. Blakeman, . 906, 907, 910

How y. Figures, .... 1057

Howard v. Harris, 1042, 1046, 1047, 1063

V. Hopkyns, . . .1114

V. Kay, . . . .338

Howarth v. Eothwell, . . .287

V. Dewell, . . .961

Howden (Lord) v. Simpson, . . 262

Howe V. Aylesbury (Countess of), 320

V. Dartmouth (Earl of ), 290,

315, 317, 320, 334, 335,

340, 341, 879, 885, 889

V. Howe, .... 341

V. Hunt, . . . -511

Howell V. George, . . . 508

V. Jones, .... 985

V. Price 99

Howells V. Wilson, . . . 1081
Howes and Downes v. Petrie

(Lord), 240

Howland (Lord) v. Norris, 518, 533, 544
Howman v. Corie, . . . 783

Hoy V. Master, . . . 952, 957
Hoyle V. Coupe, .... 1091
Hubbard v. Hubbard, . . .477
V. Young, . . .342
Huddlestone v. Huddlestone, . 483

Hudson V. Bartram,

. 522, 538

V. Carmichael,

1017, 1020

V. Hudson,

. 660

V. Temple,

. 538

Hughes' Trust, Ee,

. 811

Hughes V. Doulbin,

. 125

V. Empson,

. 878

V. Garner,

29, 39

V. Garth, .

. 28

V. Hughes,

. 712

V. Jones, .

. 544

V.Kelly, .

. 125

V. Morris,

. 49

V. Science,

. 681

v. Wells, .

. 120, 920

V. Williams,

. 105, 1076, 1079

Huguenin v. Baseley, 556, 580, 581,

582, 595
Hulme, Ex parte, .... 810

PAGE

Hulme V. Chitty, . . • 857

V. Coles, . . . -987

V. Tenant, . 917, 920, 921

Hume V. Edwards, . . .276

V. Kent, . . . . 1117

V. Eichardson, . . 332, 892

Humphreys v. Humphreys, . 277, 308

Humphries v. Home, . . . 495

Hungerford (Sir Edward) v. Nos-

worthy, 4

Hunning v. Ferrars, . . .616

Hunt V. Berkely 307

V. Elmes, ... 26, 53
V. Hunt, . . . .854

V.Scott 341

Hunter v. Atkins, 582, 587, 591,

594, 596
V.Daniel, . . 538, 821

V. Kennedy, ... 49
v. Macrae, . . . 694
V. Nockolds, . . . 1072
V. Eice, . . . •. 785
V. Seton, .... 513
V. Walters, ... 61
Hunter's (Orby) case, . . . 687
Huntingdon (Earl of) v. Hunting-
don (Countess of), 1010, 1015,

1024, 1025

Huntingdon's (Lord) case, . . 1025

Hurd V. Hurd, , . . . .891

Hurry v. Hurry, .... 480

Hurst V. Beach, 351, 353, 354, 360, 362

V. Hurst, .... 1059

Huskisson v. Bridge, . . . 951

Hutchinson v. Heyworth, . . 777

V. Hutchinson, . 968, 971

V. Morritt, . . .260

Hutton V. Mayne, .... 1059

V. Sealy, .... 1058

Hyde v. Dallaway, . . . 1067

Hylton V. Hylton, 561, 585, 586, 587

Ibbotson V. Elam, . . . .304
V. Ehodes, ... 32
Ilchester (Earl of). Ex parte, 682,

693, 694
lUdesley v. Lodge, . . .77

Imbert, Ex parte, .... 776
Imperial Mercantile Credit Asso-
ciation V. Coleman, . . . 242
Incledon v. Northcote, . . 103, 317
Inge V. Lippingwell, . . . 502
Ingham v. Bickerdike, . . . 693

Ingle, Ee, 588

V. Partridge, . . 886, 904
V. Eichards, . . . 511

Inman v. Wearing, . . . 1057

Innes v. Jackson, . 1029, 1064

V. Johnson, . . 274, 275, 277
V. MitcheU, 285, 310, 311,

942, 945
V. Sayer, . . . .282

Insole, Ee 791

Irby V. Irby, .... 626, 812

TABLE OF CASES.

XXVU

PAGE

Ireland (Bank of) v. Beresford,

986, 1001
V. Wilson, . . .439
Irnham (Lord) v. Child, 486, 488, 502
Irvin V. Ironmonger, . . .131
Irvine v. Sullivan, . . 950, 961
Ismoord v. Claypool, . . . 1059
Israel v. Douglas, .... 780
Izod V. Izod 964

Jackson, Ex parte,
V. Gator,
v. Duchaire,
V. Hamilton,
V. Innes,
V. Jackson,
V. Leaf, .
V. Parker,
V. Petrie,
V. Kowe,
Jackson's case,
Jacob V. Lucas,

V. Shepherd,
Jacques v. Chambers,
Jacquet v. Jacquet,
James, Ex parte, .
(R.) In re,
V. Holmes,
V. Lichfield,
Jaques v. Huntley,
Jarratt v. Aldam,
Jarvis v. Chandler,

V. Duke,
Jason V. Eyres,

616

682
1117

. 138, 248

. 1093

360, 545, 712

. 625, 635

. 1026

. 941

28, 29

. 47

. 881

743, 745

290, 302

. 125

. 264

. 674

. 593

62, 550

. 606

. 600

. 629

. 153

1044, 1047, 1051

281,

Jason's (Sir Bobert) case,

Jauncey v. Attorney-General,

Jay V. Warren,

Jeacock v. Falkener,

Jebb V. Tugwell, .

^ee V. Thurlow,

JefFeries v. Michel],

Jeffery's Trusts, In re,

Jeffreys v. Conner,

Jeffrys v. Vanteswarstwarth, 653

Jeffs V. Day, .

Jenkins, In re,

V. Briant,

V. Hiles,

V. Jones,

V. Kobertson,
Jenkinson v. Pepys,
Jenner v. Jenner, .
V. Tracey, .
Jenney v. Andrews,
Jennings v. Bond,

V. Moore,

V. Eigby,

V. Ward,
Jerrard v. Saunders,
Jervois v. Duke, .
V. Silk, .
Jeune v. Budd,
Jevon V. Bush,
Jewis v. Lawrence,

1044

104

987

407

338

856'

409

283, 307, 308, 965

843

698

644

. 784

. 126

503, 526, 529

. 300

495, 498

584, 843

. 1065

. 139

. 75

38, 46, 47
. 121
. 1048

13, 16, 30
206, 209
. 713
. 224
. 880
. 240

177

PAGE

Job V. Banister, .... 1105

Jodrell V. Jodrell, 725, 855, 856, 857

Johnson, Ex parte, . . . 888

V. Barratt, . . .999

V. Child, ... 99

V. Gallagher, . . . 136

V. Harrowby (Lord), . 104

V. Johnson, . 280, 338, 544

V. Newton, . . .882

V. Prendergast, . . 254

V. Eouth, . . .333

V. Smart, . . . 505

V. Woods, . . .103

Johnston v. Rowlands, . . . 959

Johnstone v. Baber, . . . 473

V. Beattie, . . .674

V. Harrowby (Lord), . 363

Jolland V. Stainbridge, . .51

Jones, In re, . . . . 105, 682

V. Consolidated Investment

Assurance Co., . . 773
V. Creswicke, . . . 1060
v. Farrell, . . . 776, 777
v. Foxall, . . . 258, 849
V. Geddes, . . . .634
V. Gibbons, . . .803

V. Goodchild, . . 265, 266
V. Green, . 300, 1116, 1117
V. Jones, . . 527, 626, 811
T. Kenrick, . . . 1061

V. Lewis, . . . 881, 893
V. Meredith, . . . 1063
T. Morley, . . . .831
V.Powell,- . . .693

V. Powles, . . . . 6, 7
V. Price, . . . .527
V. Roberts, . . . .590
V. Robinson, . . . 476

V. Smith, 52, 54, 57, 59, 62,

63, 64, 70

280, 295, 296

. 77

of), . . 224

. 28, 589

. 969

. 589

54, 61, 132

. 468, 469

. 682

206, 210, 217

. 502

. 1053

907, 911, 919

17,22

•i),

V. Southall, .

V. Stanley, .

V. Suffolk (Earl

V. Thomas, .

V. Torin,

V. Tripp,

V. Williams,
Jope V. Morshead, .
Jordan, Ex parte, .
V. Holkham,
V. Sawkins,
Jory V. Cox, .
.loy V. Campbell, .
Joyce V. De Moleyns,
Joynes v. Statham, 486, 492, 493,

496, 1051
Jubber v. Jubber, . . . .723
Justice V. Wynne, .... 801

Kampf V. Jones,
Kay V. Johnston,

T. Smith,
Kaye, Re,
Keane v. Robarts,

. 277
. 700
. 922
673, 683
. 873

XXVUl

TABLE OF CASES.

PAGE
. 95

996, 1006

. 233

. 1112

. 917

717, 718

918, 919

. 1064

. 260

98,- 132

. 29

, 209, 217

973

, 920, 921

696, 697

Kearnan v. Fitzsimon,
Kearsley v. Cole, .
Keat V. Allen,
Keating v. Sparrow,
Keays v. Lane,
Kebble, Ex parte, .
Keble v. Thompson,
Keech v. Hall,

V. Sandford,
Keeling v. Brown, .
Keeper (Lord) v. Wyld,
Keily v. Monck, . . 208,
Kekewich v. Marker,
Kellaway v. Johnson,
Kellers, In re,
Kellock's case,
Kelsal v. Bennet, .
Kemp V. Coleman,

V. Waddingham,
Kendall, Ex parte,
Kenna v. Brien,
Kennard v. Futvoye,
Kennedy v. Cassillis (Earl)

V. Daly, .

V. Green, .

V. Kennedy,

V. Kingston,

V. Trott, .
Kenny v. Brown, .
Kent V. Pickering, .
Kentish v. Kentish,
Kenyon v. Worthington
Ker V. Ker, .
Kerakoose v. Serle,
Kermode v. Macdonald,
Kernaghan v. Williams,
Kerr v. Middlesex Hospital, 283,

284, 285
Kerrison's Trusts, Be,
Kershaw v. Kershaw,
Kerswill v. Bishop,
Key V. Bradsliaw, .
Keyes v. Elkins,
Keys V. Williams, .
Kidd V. Boone,
V. North,
Kidney v. Coussmaker,
Kiffin V. Kiffin, . . . . ^o^
Kightley v. Kightley, . . 130, 132
Kildare (Earl of) v. Eustace, 940, 941
Kilmore's (Lady) case, . . . 178
Kilpatriek v. Kilpatrick, . . 686
Kilvington v. Gardiner, 1044, 1047

Kilway's case, . . . 608

Kilworth, (Lord) v. Mountcashell

. 29
. 234

122, 128
92,94
. 644
. 1074

632, 634
47, 50
51, 68, 79
. 290
. 970
. 442

616, 820
. 129
. 130
. 623
. 106
. 260
305
640

713
534
. 802
229, 231
. 997
. 781
. 122
. 360
. 137
685
130, 132

(Earl of ), .
Kimberley v. Jennings,
Kinderley v. Jervis,
King, In re, .

V. Bromley, .

V. Harwood,

V. King,

T. Mead,

V. Samson, .

917

. 508

. 133, 794

. 32, 618

. 1051

. 704

583, 585, 1045

. 853

. 853

PAGE

. 96, 593

. 363

265, 538, 547

. 853

. 175, 191

King V. Smith,

V. Tootel,

V. Wilson,

V. Winton,

V. Withers, .
King (The) v. Coggan, .

(The) V. The Inhabitants of
Scammonden, ....
King (The) v. Simpson, .
Kingham v. Lee, ....
Kings V. Hilton, ....
Kingsford v. Swinford, .
Kingston v. Booth,
Kinnoul (Earl of) v. Money, 1017,

1019, 1057
Kirby v. Burton, .... 626

V. Potter, . . 275, 277, 280
Kirk V. Eddowes, 375, 376, 38:<,

385, 397

265

488
240
916
914
622
787

Kirkman v. Booth,

241, 875

Kirkpatrick v. Kirkpatrick, .

. 276

Kirwin v. Blake, .

. 529

V. CuUen, .

. 581

Kitchin v. Kitohin,

. 854

Kitson V. Julian, .

. 992

Kiiatchbull v. Fearnhead,

. 916

V. Grueber, .

532, 544

Knight V. Boughton,

. 960

V. Bowyer, .

63, 820

V. Bulkeley,

. 817

V. Cameron,

207, 213

V. Davis, .

. 302

V. Knight, . 318, 950

, 957, 959

V. Plymouth (Earl of),

. 888

V. Pocock, .

. 73

Knott V. Cottee, 694, 889, 897,

898, 959

Ex parte, .

10, 12, 72

Kyle V. O'Connor, .

. 63

Lacam v. Mertins, .

. 1020

La Constancia,

. 110

Laing v. Cowan,

. 140

Lake v. Brutton, .

. 1002

V. Thomas, .

. 1065

Lamb v. Fames,

725, 961

Lambert v. Lambert,

280, 311

V. Parker,

. 719

V. Thwaites,

. 969

Lamlee v. Hanman,

. 234

Lampet's case,

729, 771

Lancaster v. Evors, 30, 1015, 1019, 1056

Lancaster and Carlisle Eailwaj

Co.

V. Northwestern Railway Co

, . 641

Land v. Devaynes,

. 292

Landell v. Baker, .

. 475

Lander v. Weston,

. 898

Lane v. Cox, ....

. 459

V. Jackson

18, 73, 77

Lanesborough (Lady) v. Kilmaine

(Lord), ....

. 28

Lang V. Lang,

426, 430

Langdale's Estate, In re.

. 480

Langdale v. Parry,

. 1000

Langford's Trusts, .

. 891

TABLE OF CASES.

XXIX

PAGE

PAGE

Langford v. Barnard,

. 1046

Lee V. Park, ....

624

V. Grascoyne, .

885, 908, 920

V. Book, ....

1008

V. Pitt, .

. 529

Leedham v. Chawner, .

920

Langham v. Nenny,

. 783

Leeds v. Barnardiston, .

707

Langley v. Thomas,

. 963

(Duke of) V. New Eadnor

Langridge v. Payne,

. 1097

(Corporation

of).

445

Langstaffe v. Fenwick, .

. 1048

T. PoweU, .

445

V. Taylor,

. 589

V. StraflTord (Earl

Langston v. OUivant,

. 887

of),

,

441

Langton v. Brackenburgh,

. 716

Leeth v. Irvine,

.

1048

V. Higgs, .

. 128

Lefroy v. Flood, .

951

V. Horton, 615, 772

801,

Legal V. Miller, . . 495

, 502

503

807, 1051

Leggatt V. Metropolitan Eailroad

V. Waring,

. 776

Company, ....

,

534

Lanoy v. Athol (Duke of)

, 80, 82,

Legh V. Warrington (Earl of

,130

131

105, 108

Le Grice v. Finch,

280

294

V. Athol (Duchess

of

), 714, 715

Lehmann v. McArthur, .

510

527

Landsdown v. Landadown,

. . 841

Leigh, Ex parte, .

727

Landsdowne v. Landsdowne,

. 319

V. Barry, .

899

Lant V. Crispe,

. 1062

V. Leigh, .

454

L'Apostre v. L'Plaistrier,

738, 757

Le Jenue v. Budd,

223

Largan v. Bowen, .

. 624

Le Maitre v. Bannister,

952

Lariviere v. Morgan,

. 776

Leman, Ex parte, .

27

Lamer v. Lamer, .

. 276

Lenehan v. M'Cabe,

65, 66

Laslett V. Cliffe, .

. 1059

Le Neve v. Le Neve,

34, 35, 48

Lassells v. (Domwallis (Loi

•d)

. 139

Lennon v. Napper,

526

Lassence v. Tierney,

. 290

Leonard v. Leonard,

30,

847

La Terriere v. Bulmer, .

. 315

Leslie v. Crommelin,

548

Latimer v. Neate, .

. 26

V. Leslie,

317,

318

Latouche v. Dunaany (Lor

i),

. 49

V. Tompson,

500

Latour, Ex parte, .

. 27

Lester v. Bond,

945

Latter v. Dashwood,

. 1075

V. Lester, .

881

Laurie v. Cluttoft, .

. 307

L'Estrange v. L'Estrange,

776

Law V. The East India Oomp

iny, . 1002

Lethbridge v. Thurlow, .

389

390

V. Law, .

. 232

Lethem v. Hall, .

699

V. TJrlwin,

. 511

"Lett V. Morris,

775,

779

Lawder's Estate, In re, .

. 108

V. Kandall, .

285

Lawless v. Shaw, .

. 264

Le Vaeser v. Scranton, .

787

Lawrence v. Walmsley, .

. 1008

Levinge, In re, . . .

699

Lawrence v. Butler,

. 511, 549

Levy V. Lindo,

538

Lawson v. Copeland,

. 875

Lewin v. Guest,

546

V. Laude, .

. 495

V. Lewin, .

311

V. Stitch, .

272, 275, 276

V. Okley, .

114

Lawton v. Campion,

.844

Lewis V.Bond, . 56, 62,

512J

1118

Laxton v. Peat,

. 1007

V. Buncombe,

1072

Leach v. Leach, .

. 723, 724

V.Hill,

424

Leacroft v. Maynard,

. 363

V. Jones,

996^

1007

Leake v. Leake,

. 394

V. Lechmere (Lord), .

529

Lechmere v. Brasier,

. 531

V. Matthews,

240

V. Carlisle (Earl

of

),419,
422, 424

V. Nangle, . 1019, 1025,
V. South Wales Eailway

1063

V. Lavie,

. 953

Company,

355

V. Lechmere, 419, 4

22,423,424

Ley V. Cox, ....

474

Ledger v. Stanton, .

. . 302

Leycester v. Logan,

630,

631

Lee V. Brown,

. 712, 721

Leyland v. lUingworth,

505

V. D'Aranda,

426

428, 429, 430

Lichfield v. Baker,

338

V. G-reen,

; . 73

Liddard v. Liddard,

950

V. Hayes,
T. Head, .

. 236

Life Association of Scotland v.

Sid-

. 395

dal,

873

921

V. Hewlett,

. 811

Lilford V. Powys Keck,

101

V. Jones, .

980, 981

Lightfoot V. Heron,

507

Y. Lee,

. 296

Lillie V. Legh,

1118

V. Pain, 351, 352, 353, 35J

,357,

Lincoln v. Windsor,

244

360, 362

V.Wright, , 901

,917

918

XXX

TABLE OP CASES.

917,

PAOB

772

919

471

. '808

. 968

. 899

121, 123

Lindsay v. Gibbg, .
Lingard v. Bromley,
Lister v. Lister,
V. Tidd,
Little V. Neil,
Littlehales v. Gascoyne
Littleton v. Hibbins,
Liverpool Bank v. Turner,

V. Marine Credit Company
V. Hunter,
V. Wilson,
Livesay v. Harding,
V. Kedfern,
Llewellyn's Trust, Ke,
Lloyd V. Attwood,
V. Banks, .
V. Brantoh, .
V. Cheetham,
V. Clark,

V. CoUett, . 517
V. Fleming, .
V. Hervey,
V. Jones,
V. Lloyd,
V. Eippingale,
V. Wait,
Lloyd's Trust, In Ee,
Loane v. Casey,
Lobley v. Stocks, .
Lock V. Venables, .
Lockhart v. Hardy,
V. Reilly,
Lockwood V. Abdy,

'v. Fenton,
Logan V. Fairlie, .
V. Wienholt,
Lomas v. Wright, .
Lomax v. Lomax, .
Londesborough (Lord) v. Somer-

ville,

London, Chatham and Dover Rail-
way Arrang. Act, In re,
London and Birmingham Railway
Company v. Winter,
(Bank of) v. Tyrell, .
and Eastern Banking Co.,

In re, .
(City of) V. Nash, .

V. Pugh,
(The Mayor of) v. Russell,

349, 350, 356

49

633

802

. 282

. 343

921, 922

60, 800

208, 217, 225

817

614

525, 527, 528

. 782

. 401

. 1076

210, 21E!

. 538

. 1063

. 681

. 128

354, 359

. 303

636, 1061

. 917

. 873

. 727

699, 726,

1114, 1116

95, 121, 126

718

314

641

503
253

638
1104
1114

Long v. Clopton,

V. Collier,

V. Dennis,

V. Fletcher,

V. Hughes, .

V. Long,

V. Eicketts, .

V. Short, . J
Longbottom v. Pearce,
Longmore v. Broome,

v. Eboum
Lonsdale v. Berchtoldt,
Loomes v. Stotherd,

1056

530

149, 154, 209, 223

. .541

. 310

317, 707, 708

. 225

138, 282, 312

. 709

. 968, 971

. 723, 724

. 290

. 128

794,

Lord V. Godfrey, .
V. Lord,
V. Stephens, .
V. Sutcliflfe, .
V. Wightwick,
Lord Keeper v. Wyld,
Lorimer v. Lorimer,
Loscombe y. Wintringham,
Loyat V. Ranelagh (Lord),
Love V. Baker,
Lovegrove, Ex parte,
V. Cooper,
Lovell's case,
Lovell V. Galloway,
Loveridge v. Cooper,
Low V. Peers,
Lowe V. Manners, .
V. Peers,
V. Peskett, .
Lowndes v. Lane, .

V. Lowndes,
Lowson V. Copeland,
Lowther (Sir James)
(Lady),
V. Carlton,
Loyd V. Mansell, .
Lucas V. Calcraft, ,
V. Oomerford,
V. Dennison,
V. James,
V. Seale,
V. Williams,
Lucy V. Gardener, .
Lucy's case, .
Lumley v. Hutton,
Lunham v. Blundell,
Lupton V. White, .
Lush's Trusts, In re,
Lutkinsv. Leigh, . 81, 91,
Luttrel V. Waltham (Lord),
Lyddon v. Ellison,
Lyde v. Mynn,
Lygon V. Coventry ^Lord),
Lyle V. Yarborough (Earl of
Lynch's Estate, In re,
Lyne v. Lyne,
Lyne's Estate, In re,
Lyon V. Baker,

V. Oolville, .
V. Home,
Lyons v. Blenkin, .

Ex parte,
Lysv. Lys, .
Lysaght v.'Walker,
Lyttleton v. Cross,

Maberley v. Turton,
Macanlay v. Philips,
Macbryde v. Weeks,
Maecabe v. Hussey,
M'Calmon v. Rankin,
M'Cann v. Forbes,
M'Carogher v. Whieldon,
M'Carthy v. Decaix,

PAQE

338, 343

. 312

. 536

. 355

. 333

. 29

. 473

. 307

. 1109

631, 632

. 263

. 126

. 1063

. 620

797, 798

. 218

. 228

. 230

. 124

505, 506

. 314

874, 877

Andover

. 533

50, 66

. 1061

. 483

. 1104

. 1068

. 507

. 1057

. 626

98, 99

. 838

. 914

. 882

. 443

32

98, 99, 103

570

405

773

720

530

108

475

. 308

. 243

125, 351

592, 594

. 677

. 639

. 480

. 1000

. 124

712, 967
. 786

538, 539
. 581
. 49
. 534

394, 396
. 847

31,

TABLE OF CASES.

XXXI

PAGE

PAGE

M'Carthy v. Goold,

. 817

Maiden v. Fyson, .

. 555

V. M'Cartliy, .

. 581

V. Menill, .

. 27

Macclesfield (Earl of) v. Fitton, |

Malim v. Keighley,

950, 960

1054, 1055

Malins v. Freeman,

. 509

M'Clure V. Evans, .

. 386

Mailing Union v. Graham, .

. 992

M'Cormick v. Grogan, .

. 951

Mallinson v. Mallinson,

. 578

M'Creight v. Foster,

50, 51

Mallon V. Fitzgerald, .
Mallory v. French,

. 225

M'Cullocli V. Gregory, .

. 552

. 308

V. M'CuUoch,

. 220

Malpas V. Acklaiid,

. 55

M'Dermott v. Kealy, .

. 317

Man V. Eicketts, .

. 555

Maedonald v. Bell,

. 1009

Manby v. Bewicke,

. 840

V. Maedonald,

. 105

Mangles v. Dixon,

32, 814

V. Eichardson,

. 260

Manley v. Boycott,

. 1007

Macdonnel v. Harding,

. 912

Mann v. CopeJand,

. 305

M'Faddeu v. Jenkyns, .

. 774

V. Fuller, .

. 363

M'Gachen v. Dew,

875, 917

Manners' (Lord Robert) case.

. 943

M'Gowen v. Smith,

. 780

Manning, Ex parte.

534, 585

Macher v. The Foundling Hos

pital,

V. Mestaer,

. 621

1108, 1117

v> Purcell,

. 276

Machill V. Clark, .

. 832

V. Spooner,

137, 138

Maeken v. Hogan,

. 875

V. Thesiger, .

. 358

Mackensie v. Mackensie,

351, 352

Mansell v. Mansell, 47, 163,

165,

Mackenzie v. Eobinson,

. 1053

176, 180, 189

Mackett v. Mackett,

. 725

Manser v. Back,

497, 510

M'Key, Ex parte, .

. 721

Mansergh v. Campbell,

284, 285

Mackie v. Mackie,

. 339

Manson v. Baillie,

. 244

Mackrell v. Hunt,

. 535

Mant V. Leith,

. 895

Mackinnon v. Peach,

. 354

March v. Bussell, .

916, 921

Mackintosh v. Wyatt, .

984, 1007

Margretts v. Gregory, .

. 1004

Maokreth v. Marlar,

. 533

Marker v. Marker,

. 921

V. Symmonp, .

47, 64

Markham v. Turner,

. 606

Maclaren v. Stainton, .

303, 634

Marlborough (Duke of) v. Godol-

Maclean v. Dawson

. 945

phin (Lord),

. 965

Macleod v. Annesley,

. 893

Marples v. Bainbridge,

215, 218

V. Buchanan, .

. 809

Marriage v. Skiggs,

624, 626

McMahan v. Burchell, . 47

3, 783, 784

Marriot v. Thompson, .

. 128

V. McElroy, .

65, 66

Marriott v. Anchor Eeversionary

McMurray v. Spicer,

527, 539

Co.

. 1080

Macnab v. Whitbread, .

950, 952

Marris v. Burton, .

. 319

Macnamara v. Carey,

. 881

Marryat v. Marryat,

. 122

V. Jones,

. 252

Marseilles Extension Eailway Co.,

M' Queen v. Farquhar, .

. 50, 544

In re, ...

. 72

McWilliams, Ex parte, .

. 915

Marsh, Ex parte, .

739, 757

Maddeford v. Austwick,

. 506

V. Evans, .

. 311

Madeleyv. Booth,

. 541

V. Hunter,

. 897

Madoc V. Jackson,

. 969

V. Lee, . . 5,

6, 34, 1052

Magdalen College case, .

. 602

Marshall v. Bremner,

. 338

Magennis v. Fallon, 531, 53

2, 536, 545

V. Collett,

27, 838

Magnay v. Mines Eoyal Co.,

. 639

V. Frank,

. 28

MagraTe v. Archbold, .

. 510

V. Glamorgan Iron Co., 1111

Mahon v. Savage, .

. 967, 970

V. HoUoway, 242,

251,

Main v. Melbourne,

. 529

253, 302, 716

Maingay v. Lewis,

. 1000

V. Queensborough (Corp.

Maitland v. Backhouse,

. 599

of),

. 616

V. Bateman, .

. 880

V. Eutter,

. 854

V. Irving,

. 598, 599

V. Sladden,

. 873

V. Maitland, .

. 880

Martin and Bye's case, .

. 608

V. Wilson,

. 28

V. Cotter, .

. 56, 543

Majoribanke v. Hovenden,

65, 66

V. Drinkwater, 3

56, 360, 363

Makeham v. Hooper,

. 103, 104

V. Foster, 703, 7(

)4, 709, 710

Malcolm v. Charlesworth,

. 811

V. Martin, . 71

6, 720, 942

V. Martin,

. 313, 319

V. Mitchell,

. .504

v. O'Callaghan, 21

4, 215, 264

V. Pycroft,

. 494, 500

V.Scott, .

. 774, 780

V. Sedgwick,

. 798

xxxu

TABLE OF CASES.

Martyn v. Ferryman,

Mas ham (Lord) v. Harding,

Mason v. Armitage,

PAGE

. 469
. 114
. 510
. 96
1072, 1073
The King, 939

780

96, 348, 349, 352
. 638
. 673
. 408
422, 425
672, 853
. 246
882, 883
1053, 1054, 1055
243, 250, 1048
. 771
. 939, 945
. 12
. 873
548
552
1051

511,

V. Broadbent,
Massachusetts Bay Co.
Massey v. Banner,
Master v. Buller, .
Masters v. Masters,
Mather v. Lay,
Mathew V. Brise, .
Mathews v. Mathews,
Mathias v. Mathias,
Mathews, Re,

V. Bagshaw,

V. Brise,

V. Wallwyn,
Matthison v. Clarke,
Maund's case,
Maunder v. Lloyd,
Maundrell v. Maundrell
Maw V. Pearson, .
V. Topham, .
Mawson v. Fletcher,
Maxwell V. Montacute,

V. Port Tennant, etc., Co., 242

V. Wettenhall, . . 317

May V. Bennett, . . . .285
V. Hook, .... 636
Mayhew v. Crickett, 986, 988, 1006, 1007
Meacher v. Young, . . . 713
Mead v. Orrery (Lord), . 47, 150

Meade, In re, . . . . 697

Meadows v. Kingston (Duchess of ), 29

V. Meadows, . . 583, 584

V. Patherick, . . . 444
Measure v. Carleton, . . . 281
Meek v. Carter, .... 1105
V. Kettlewell, . . .772
Meggison v. Moore, . . 949, 957
Meggot V. Meggot, . . . 483

V. Mills, . . 743, 750, 759
Meiklan v. Campbell, . . . 945
Meinertzhagen v. Walters, . . 388
Meliorrucchi v. The Royal Ex-
change Assurance Co., . 760, 769
Meller v. Stanley, . . . .965
Mellish V. Da Costa, . . .672
V. Mellish, . . .587

Mellor V. Lees, .... 1049
Melvill v. Glendinning, 1001, 1007

Mendes v. Guedalla, . . 886, 905
T. Mendes, . • 672, 673
Mercantile and Exchange Bank, In

re, 510

Mercer v. Irving, .... 1115
Meredith v. Heneage, 950, 953, 956,

957, 961, 973
Merry v. Abney, .... 47

V. Ryyes,
Merryweather v. Jones,
Mertins v. JolliflFe,
Mesgrett v. Mesgrett, .
Metcalf V. Scholey,

224
865
50
221
135

103,

Metcalfe's Trusts, In re,
Metcalfe v. York (Archbishop of),
Methuen v. Methuen, .
Meux V. Bell,

V. Maltby, .
Meyer v. Simonsen,
Meyersteiu v. Barber, .
Michelmore v. Mudge, ,
Middleton v. Middleton,

V. Onslow (Lord)
V. Sherburne,
V. Spicer,
Midland Great Western Railway
Co., of Ireland, v. Kinder,
V. Johnson,
Midland Railway Co. v. Tayh
Midleton (Lord) v- Eliot,
Mildmay v. Hungerford,

V. Mildmay,
Mildred v. Austin,
V. Neate,
Miles' Trusts, Re,
Miles V. Langley, .

V. Williams,
Mill V. Hill, .
Millar v. Horton, .

V. Marriott,
Millard's case.
Miller v. Harris, .

V. Huddlestone,
v. Mackay,
V. Warmington,
Millet V. Rowse, .
Millett V. Davy, .
Milligan v. Cooke,
Mills V. Brown,
V. Drewitt,
V. Mills,
V. Osborne, .
V. Robarts, .
Milltown V. Trench
Milner v. Milnes, .
Milnes v. Gery,

V. Slater, .
Milward v. Thanet (Earl of),
Minchin v. Nance,
Miner v. Baldwin,
Mines Royal Societies v,
Minet v. VuUiamy,
Miiiuel V. Sarazine,
Mirehouse v. Scaife,
Mitchell, Ex parte,
Mitford, Ex parte,

V. Mitford,
Mizen v. Pick,
Mocher v. Reed, .
Moffett V. Bates, .
Mogg V. Hodges, .
Moggridge v. Thackwell,
Mold V. Wheatcroft,
Mole V. Mansfield,

V. Mole,
MoUoy V. French,
Molony v. Kernan,

PAGE

581
772
357
804
62
343, 344
816

788
99
980
581
266

or, . 895

1077

502

28

1063

631

890

63

771

49

126

475

28

673

287, 307, 309

. 247

440, 444

703, 706, 707

. 1079

548, 555

. 338

. 286

337, 339, 342, 889

. 887

. 317

. 314

. 785

. 545

137, 138

527, 532

. 536

285

644

943

406

;, 127, 132

, 706

. 917

. 787

. 854

. 635

. 302

. 103

352, 354, 356

616

472

317

812

28

Magnay,

TABLE OF CASES.

xxxm

Molyneux v. Scott,
Monck V. Monck,
Mondey v. Mondey,
Money's Trusts, In re.
Money v. Money,
Monro, Ex parte, .
V. Taylor, .
Monsell, In re,
Montague (Lord) v. Dudman,

PASB

. 626, 635

384, 387, 399, 405

. 1058

. 343

. 708

. 1054

533, 536

. 850

. 637

V. Montague, 305, 383, 387

V. Eatcliffe, . . . 1055

v. Tidcombe, . 995, 1001

Montefiore v. Guadalla, . 385, 388

V. Lloyd, . . .982

Montford v. Cadogau (Lord), 919, 920

Montifiore, In re, . . . . 918

Moore y. Bennett, ... 54

V. Bowmaker, . . . 1007

V. Fisher, . . . .821

V. Frowde, . . 240, 241, 250

V. Jervis, .... 813

V. Madden, . . .278

V. Moore, . . . 296, 855

V. Moorehead, . . . 475

V. Prance, ..." 588

More V. Mayhow, . . .28, 29, 77

V. More, . . . .703

More's Trust, . . . .363

Moreau v. Polley, . . .792

Morecock v. Dicking, ... 49

Moreland v. Richardson, . . 63

Morgan v. Dillon, . . . 693

V. Gurley, . . .538

V. Hatchell, . . .673

V. Higgins, . . . 589

V. Morgan, . 338, 339, 343

V. Parry, .... 606

V. Stephens, . . .873

Moriarty v. Martin, . . . 950

Morley V. Bird, . . . .280

V. Cook, . . . .552

V. Morley, . 133, 881, 1057

V. Bennoldson, 206, 208,

214, 218
Mornington (Countess of) v. Keane,

424, 773

Morrell v. Wooten, . . . 777

Morres v. Hodges, .... 343

Morret v. Paske, .... 1056

Morrice v. Bank of England, 141, 623

V. Bishop of Durham, . 949

Morris, Louisa, in the goods of, . 673

V. Islip, .... 1075

V. Livie, .... 812

V. Timmins, . . . 475

V. Wright, . . . 893, 896

Morrison v. Barrow, . . . 509

V. Morrison, . . 251, 253

Be, .... 727

Morse v. Tucker, .... 126

Mortimer v. Mortimer, . . . 853

V. Picton, . . .891

Mortimore v. Mortimore, . . 895

Mortlock V. Buller, 511, 541, 547, 549

PAQB

Mortlock'a Trust, In re, . . . 961
Morton, Francis, in the goods of, . 673
Mosely v. Mosely, . . . 964, 971
Moses V. Levi, .... 910

Moss, In re, 589

V. Bainbridge, . . . 589

V.Hall, 986

Mostyn v. Brooke, .... 850
Moulson V. Moulson, . . . 389
Mounson v. Bourn, . . . 915

Mountford v. Scott, . . 67, 68, 69

Mouutfort, Ex parte, 682, 683, 685, 714

Mountstuart v. Mountstuart,

Mower's Trusts, In re,

Moyle V. Moyle,

Mucklow V. Fuller,

Muir V. Jolly, ....

MuUineux v. MuUineux,

Mullins V. Smith, 275, 277, 280, 283

311, 312
Munch V. CockereU,
Mundy v. Howe (Earl),

V. Mundy, .
Munt V. Shrewsbury and

BaUway Company,
Mure, Ex parte.
Murphy v. Glass, .
V. Taylor, .
Murray, In re,

V. Barlee, .
V. Elibank (Lord),
Murrell v. Goodyear,
Musprat v. Gordon,
Musson V. May,
Mutlow V. Mutlow,
Mutual Loan Fund Association v.

Sudlow, 1007

Myers v. The United Guarantee, etc.,

Society, .... 774, 813
Myerscough, Ex parte, . . . 682
Myler v. Fitzpatrick, . . . 873

. 108

882, 912

899, 901

. 64

. 438

. 912, 920
. 712, 713
. 482, 483
Chester

. 642
. 1002
. 644
. 1051
. 703, 710
. 136
. 709
. 530
. 772
• 121
119, 136

Nagle V. Baylor,
Nail V. Punter,
Nanfan v. Perkins,
Nanney v. Martin, .
V. Williams,
Nanny v. Edwards,
Nash V. Derby (Lord)

V. Nash,
Natal Land, etc., Co. v

Investment Co.,
National Patent Steam
Naylor v. South Devon

V. Winch, .
Neale, In re, .

V. M'Kenzie,

V. Neale,
Neap V. Abbott,
Neave v. Alderton,
Nedby v. Nedby, .
Neesom v. Clarkson,
Neill's case.
Nelson v. Booth,

. 507

920, 921

. 1061

. 786

. 589

1060, 1061

. 1086

. 783

. Good, . 51

In re, . . 812

Fuel Co., . 1112

EailwayCo., 1111

838, 841

. 714

548

839

. 498, 509

. 94

. 597

70, 618, 1078

. 1112

. 1076

511,

XXXIV

TABLE 01' CASES.

PAGE

Nelson v. Bridport, . . . 942

V. Carter, . . . .277

V. Stocker, .... 32

Nelthorpe v. Holgate, 62, 543, 547, 552

Neve V. Pennell, .... 48

Neville v. Portescue, . . . 341

V.Wilkinson, . . .235

Nevin V. Drysdale, . . . 389

New V. Jones, . . . 241, 252

Newbery, In re, . . . . 696

Newcastle (Duke of). In re, . . 135

Newington v. Levy, . . . 988

Newlands v. Painter, . . . 615

Newman, In re, . . . . 590

V. Bateson, . . . 314

V. Payne, . 561, 588, 589

V. Eogers, . . . 539

V. Selfe 1059

Newport v. Bury, .... 253

V. Kynaston, . 348, 350, 351

Newstead v. Searles, ... 65

Newton, Ex parte 242

V. Bennet, . . .124

V. Chorlton, . . . 1002

V. Marsden, . . . 215

V. Newton, . . 22, 23

NichoU V. Danvers, . . . 856

NichoUs, Ex parte, . . .682

V. Judson, . . . 407

Nichols V. Hawkes, . . . 284

Nicholson v. Hooper, . . 32, 618

V. Eevill, . 966, 1004, 1006

V. Squire, . . .704

•' V. Tutin, . . .253

Nickisson v. Cockill, . . . 104

Nickolson v. Knowles, . . . 873

Nicoll V. Chambers, . . . 551

Nisbet V. Smith, . 975, 976, 978, 985

Nixon V. Hamilton, ... 66

V. Robinson, ... 55

Noblett V. Litchfield, . . .395

Noel V. Eochfort, . . . .319

V. Walsingham (Lord), . . 394

Nokes V. Gibbon, . . 1102, 1109

V. Kilmorey (Lord), . . 538

Norbury v. Norbury, . ... 888

Norcott V. Gordon, . . .309

Norfolk [The Duke of) v. Worthy, 546

Norman v. Morrell, . . . 101

Norris, Ex parte ; In re Biddulph, 918

V. Chambres, . . . 943

V. Harrison, . . 277, 304

V. Le Neve, ... 65

V. Norris, . . . .293

Norrish v. Marahall, . . .812

North, Ee, 696

V. Gumey, . . . .803
V. Stratford (Earl and Count-
less of), . . . , 445
V.Wakefield, . . . 1006
North British Insurance Company v.

Lloyd, . ._ . . 980j 981

North Midland Eailway Company
V.Hudson, . . . . , 242

281,

PAGE

North Western Eailway Company v.

Whinray 992

Northern Assam Tea Company, In re, 814
Norton v. Eelly, . 562, 566, 580, 593
Norway v. Eowe, . . . . . 616
Norwood V. Norwood, , . . . 177
Nosotti V. Jefierson, . . . 123
Nott V. Eiccard, . . . .538
Nottidge V. Prince, . . . 581

Nugent V. Gifford, . . . .151
V. Vetzera, . . . 700

Nunn V. Barlow, . . . . 128
Nurse v. Yerworth, . . . 791
Nyssen v. Gretton, . . . 132

Oakden V. Pike, . . . .138
Oakeley v. Pasheller, . . 985, 1007
Oakford V. European and American

Steam Shipping Company,
Oakes v. Oakes,

V. Strachey, .
Obee V. Bishop,
O'Brien v. Lewis, .
O'Callaghan v. Cooper, .
O'Connors v. Bandon (Lord),
O'Fefrall, Ex parte,
Ofibrd V. Davies,
Ogilvie V. Jeafireson,
Oglander v. Baston,
0;Hara v. Strange, .
O'Keefe v. Casey, .
Oldfield V. Cobbett,
Oldham v. Hand, .
Olive, Ee,

Oliver v. Brickland,
V. Brighouse,
y. Oliver,
O'Malleys, Minors, In re,
Oneal v. Mead,
Onslow V. MicheU,

V. Wallis,
Crby V. Trigg,
Ord V. Blackett,
V. Noel, .
V. Smith, .
' V. White,
Orger v. Spark,
Oriental Commercial Bank, In re, . 96
Oriental Financial Corporation v.
Overend, Gumey & Co., 985, 992,

1007, 1008

Orme v. Smith, . . . 272, 295

V. Young, .... 1000

Ormerod v. Hardman, . . 503, 528

Ormsby, In re, . . . . 260

Orr V. Dickson, .... 49

V. Newton, . . . .880

Orrett y. Corser, . . . .918

Osbom V. Brown, .... 225

V. Lea, .... 33

V. Osbom, . . . 475, 481

Osborne v. Leeds (The Duke of), 355, 361

Osmond v. Fitzroy, . . 593, 921

bstell V. Le Page, . . . .634

985
298
. 342
. 916
. 588
. 225
. 26
. 783
. 993
10, 28, 70
. 785
. 439
682, 693
. 627
. 588
. 710
. 430
. 430
277
696
103
394
265
1048
682
511
1066
812
474

99,

1065,

TABLE 0¥ CASES,

XXXV

Oswald V. Berwick

(Mayor of),
Ottley V. Browne, .
Oulds V. Harrison, .
Ouseley v. Anstruther,
Overend v. Gurney,
Overend, Gurney & Co.,

parte Swan,
Overton v. Banister,
Ovey V. Leighton, .
Owen V. Davies,
V. Homan,
Owens V. Dickenson, .
Oxenham v. Clapp,
Oxford's (Earl of) case,
Offord V. Provand, .
Oxon (Comes) v. Neeth,
Oxwith V. Plumer, .

Pack V. Bathurst, .
Packer v. Wyndham,
Paddon v. Bichardsonj
Padwick v. Stanley,
Page, Ex parte,

V. Adam,

V. Bennett, .

V. Hayward,

V. Home,

upon ■

In re

v'. Leapingwell, 282, 306, 307, 308

V. Lever,
V. Page,
Paget V. Grenfellj .
V. Haywood,
V. Huish,
V. Bead,
Pain V. Coombs,
Paine v. Meller,
V. Byder,
Painter's case.
Painter v. Newby, .
Paley v. Field,
Palmer v. Bate,

v. Crauford,

V. Panby, .

V. Graves, .

V. Hendrie,

V. Mitchell,

V. Neave, .

V. Newell, .

V. Simmonds,
Palmerston (Lord) v. Turner,
Pankhurst v. Howell,
Pannell v. Hurley,
Panton v. Panton, .
Papillon V. Papillon,
Pardo V. Bingham,
Park, In re, .
Parker v. Bloxam,

V. Blythmore,

V. Clarke, .

V. Fearnley,

V. Frith

PAOE

Tweed
. 992
. 919
. 816
. 426
. 364
Ex
. 816
. 32
. 30
533, 534
980, 989
. 136
. 124
. 601
. 509
. 601
. 64

. 139

. 652
879, 887
. 1009
. 740
. 452
1107, 1108
. 228
593

635,

28

692

394

178, 207, 217

. 282

. 915

. 1118

528, 531

. 481

. 1112

. 548

. 991

. 817

288, 289

. 1063

. 131

1056, 1057

. 258

234

395, 400

950, 953

536

405

873
443
394
137
673
258, 888
13, 16
. 22
. 132
. 539

PAGB

Parker v. Marchant, . . • 131

V. Parker, .... 178

V. Bingham, . . . 625

V. TasweU, . . . .502"

V. Watkins, . . . 1078

V. Whyte, . . . .64

Parkes V. White, . . >.r .919,

Parkin v. Thorold, 512, 526, 532, 538, 539

Parkinson v. Hanbury, . . 1076, 1077

Parnell v. Lyon, . . . 221, 226

Parr v. Lovegrove, . . .531

Parre v. Tipelady 629

Parrot v. Worsfield, . . .281

Parson's (Clement) case, . . 608

Parsons v. Baker, .... 950

V. Coke, . . . .717

V. Middleton, . . .780

V. Parsons, . . 283, 723

Pateriche v. Powlet, . 424, 1016, 1018

Partridge v. Partridge, 272, 280, 295,

297, 298
V.Smith, . ■'; . 837

Pascoe V. Swan, .... 473
Patch V. Wild, .... 1075
^aterson V. Scott, . . 91,92,101
iPaton V. Brebner, .... 554
Pattison v. Pattison, . . . 298
Paul V. Compton, . . . . 950
Pawlet V. Attorney-GeneraJ, . 47, 1038
Pawlet's case, .... 271, 272'
■Pawlett (Lord W.), Ex parte, . 896
Pawson V. Pawson, . . 284, 285

Paxton V. Douglas, . . 624, 625

Payler v. Homersham, . . . 10.06 ,
Payne v. Compton, . . .18

v. Low, . . . ' . 714'

V. Mortimer, . . . 122
Peachy (Sir Harry) v. Somerset (Duke

V. Gerard,' 454, 459, 460, 461,

466, 468, 469, 470

of),
Peacock v. Burt,

V. Peacock,
V. Penson,
Pearce v. Crutchfield,

Vi Loman, .

V. Morris, .

V. Newlyn, .

V. Pearce, .
Pearl v. Deacon, • .
Pearmain v. Twiss,
iPears v, Laing,
{Pearse v. Green,
Pearson v. Morgan,
V. Pearson,
Pease v. Jackson, .
Peat V. Crane,
iPeckering v. Kempton,
Peckham v. Peckham,
iPedrotti's Will, Ee,
[Peel V. Tatlock,
(Peers v. Lambert, .
r V. Needhaim, .

V. Sneyd,
Pegg V. Wisden, . : '
Pegler v. White,

1082, 1095, 1112'
11, 811
. 140
509, 511, 548
701, 703
97, 212'
. 1064
■ . 76'
. 873
1000, 1002
99, 138
.1071 '
'. 254
. 33
. 312
6
884, 889 '
. .438
'. 682
'. 953
. 980, 995
. 544
472, 477
.- 530
538, 1049 '
■■■ . 512

XXXVl

TABLE OF CASES,

Peillon V. Brooking, . . .890
Pelly V. Wathen, .... 1078
Pelty V. Cooke, . . . .987
Pemberton v. Barnes, . . 480, 481
Pembroke v. Eyre, .... 31
Pendleton v. Eouth, . . . 1069
Penn v. Baltimore (Lord), 445, 923,

939, 943

Pennell v. Deffell, . . . .883

V. Boy, . . . .627

Pennington v. Beechey, ... 29

Penny v. Avison, .... 254

V. Turner, . . . 968, 971

V. Watts, . . 18, 60, 61, 62

Penticost v. Ley, .... 281

Penville v. Luscombe, . . . 1037

Peppin V. Lovewell, . . . 324

Percy v. Percy 286

Perfect v. Musgrave, . . . 1000

Perkins v. Bradley, . . 66, 69

V. Cooke, . . . .285

V. Ede, . . . ^ . 544

Perkyns v. Baynton, . . . 318

Perrin v. Lyon, .... 209

Perry v. Barker, .... 636

V. HoU, . . . .70

V. Knott, . . . .917

V. Marston, .... 1066

V. Medowcroft, . . . 1049

V. Perry, . . . .875

V. Phelips, . . . .624

V. Walker, . . . .639

V. Whitehead, . . .404

Perry Herrick v. Attwood, . . 53

Persse v. Persse, .... 842

Peterborough (Bishop of) v. Mortlock, 280

Peters v. Bacon, .... 480

Peterson v. Hickman, . . 603, 617

v. Peterson, . . .308

Peto V. Hammond, .... 54

V. Peto, . . . • . .849

Petre v. Bruen, . . . .137

(Lord^, Ex parte, . . 714, 715

(Lord) V. Eastern Counties

Kailway Company, . 262, 263

Petre^ . 139, 307, 308, 715

Pettiward t. Pettiward
Peyton v. Bladwell,

V. Bury,
Phayre v. Peree,
PhenS's Trust, In re,
Philanthropic Society v.
Philips V. Astling, .

V. Gary,

V. Hele,
Phillippo V. Munnings,
Phillips V. Beal,

V. Foxall, .

V. Gutteridge,

V. Homfrey,

V. MuUings,

V. Parry,

271

. 234

177, 224

47, 425

967

Kemp,

104

1002

272

1063

. 125, 916

315, 316, 625

980, 993, 995

. 287, 1059

553

'. 594, 596

. 138

V. Phillips, 5, 20, 23, 24, 25,

30, 287, 385, 884

Phillips V. Sargent,
V. Silvester,
V. Turner, .
V. Vaughan,
V. Worth, .

Phillipson v. Gatty,
V. Gibbon,
V. Kerry,

Philpot V. Briant, • .

Phiney v. Phiney, .

Phipps V. Anglesea (Lord)

Picard v. Mitchell,

Pickard v. Anderson,

Pickering

PAGB

. 343

. 536

. 295

. 1055

. 636

921

529, 531

. 597

986, 1007

. 418

. 310

. 287

. 887

Ilfracombe Eailway
Company, .
V. Pickering, 335, 340,

794.

407,

342, 837, 847

V. Stephenson, . . 843

Pickup V. Atkinson, . 338, 339, 342

Pidcock V. Bishop, . . . 980

V. Boultbee, . . .683

Pierce v. Brady, .... 799

V. Locke, .... 391

V. Snaveling, . . . . 273

V. Waring, .... 561

Pierpoint v. Cheney (Lord), . . 715

Pierse v. Waring, .... 586

Pierson v. Garnet, . . 319, 950, 957

Pieters v. Thompson, . . . 635

Piggot V. Morris, . . . 149, 153

Piggott V. Green, . . . .240

V. Morris, .... 149

V. Stratton, . . . 616

Pigot's case 168, 177

Pike V. Hoare, _ . . .445, 942
Pilcher v. Kawlins, . . . 5, 9
Pilling V. Armitage, . . 616, 618
Pimm V. Insall, .... 133
Pince V. Beattie,
Pinchin v. Simms, .
Pinchon's case,
Pincke v. Curteis, .
Pink V. De Thuisey,
Piunell V. Hallett, .
Pitcairn V. Ogbourne,
Pitcher v. Bigby, .
Pitt V. Camelford, .
V. Pidgeon,
V. Pitt, .
V. Eeynolds,
Plant V. Pearman, .
Piatt V. Piatt, .
Playford v. Playford,
Pledge V. Buss, . 980,
Plowden v. Hyde, .
Plumb V. Fluitt, .

V. Neild,
Plunket V. Lewis, .
V. Penson, .
Plymouth (Earl of) v. Lewis,
Pocock V. Lee,

V. Eeddington,
Pole V Somers (Lord)
Pollard, Ex parte, .

590
409
121

517, 528, 531
. 973
424, 425
495, 503
. 589
. 276
348, 350, 351
. 1017
. 1106
. 76
. 384
. 507
1000, 1002
. 1023
51, 53
. 304
408, 411, 413
124, 134, 141
. 701
. 1015
887, 888
389, 396
. 942

TABLE OF CASES.

XXXVU

1116

. 418,

425

215

. 536,

546

. 753,

758

. 985,

1007

56

508

. 952,

953

529

. 970

971

173

540

PAGE

Pollard V. Doyle, . . . 241, 243
Pollock V. Croft, . _ . . .223
Pomfret (Earl of) v.Windsor (Lord),

72, 659
Ponsonby v. Adams,
Poole, Ex parte,
V. Bott,
V. Shergold,
Poole's case, .
Pooley V. Harradine,
Pope V. Garland, .
V. Harris,
V. Pope,
V. Simpson, .
V. Whitcombe,
Popham V. Bamfield,

V. Eyre,
Portarlington, (The Earl of) v. Soul-

by, 30, 632, 633, 944

Porter v. Smith 301

Portlock V. Gardner, . . 258, 874

Portman v. Mill, . . .544, 546

Portmore (Lord) v. Morris, . 486, 488

Portsea Island Union v. Whillier, . 992

Pottv. Lomas, . . . .780

Potter, In re, . . . . . 711

V. Baker, . . . 283, 284

V. Edwards, . . . 1051

V. Sanders, .... 47

V.Waller, . . . .470

Potts v^ Norton, ... 675

V.Smith, . . . .310

V. Surr 583

Poulson, Ex parte, . . . 918, 919
Powdrell v. Jones, .... 423
Powel V. Cleaver, 324, 368, 369, 376,

377, 399, 404, 674, 676, 678, 680
Powell V. DiUon, .... 62
V. Evans, . . . 874, 884
V. Knowler, . . . 820

v. Martyr, . . . .534
V. Merrett, .... 266

V.Powell 626

V. Kobins, .... 132

V. South "Wales Eailway, . 544

V. Thomas, . . . 616, 877

Power V. Hayne, .... 289

Powys V. Mansfield, 377, 384, 386,

387, 401
Poyntz V. Fortune, .
Prance v. Sympson,
Pratt V. Barker,
Preece v. Scale,
Frees v. Coke,
Prendergast v. Devey,
V. Eyre,
V. Lushington,
V. Prendergast,
V. Turton, .
Presant v. Goodwin,
Preston v. Tubbin, .
Prevost V. Clarke, .
Price V. Barker,

1118
. 1068
. 595
. 228
. 1061
. 987
543, 545
. 878
333
. 1111
. 725
. 74
. 950
997, 1006

PAGB

Price V.Dyer, . . . 502, 503
V. Edmunds, . . . 986, 987
V. Kirkham, .... 1001
V. Ley, .... 498, 499
V. Macaulay, . . 505, 542, 552
V. North, . . . 131, 547
V. Perrie, .... 1048
V. Price, . . .29, 596
V. Salusbury, .... 509
V.Shaw, . . . .682
V. Worwood 1109

Priddy V. Rose, . 812, 817, 818, 917

Pride v. Fooks,

Priestley v. Lamb, .

Priestman v. Tindall,

Prince v. Hine,

V. Eowson, .

Pristwick v. Poley,

Pritchard v. Hitchcock,

Probert v. Clifford,

Procter v. Cowper, .
V. Robinson,

Professional Life Assurance Co., In
re 92

Prole V. Soady, . . 783, 787, 791

Proof V. Hines,

Prosser v. Edmonds,
V. Rice,

Prothero v. Phelps,

Protheroe v. Forman,

Prowse V. Abingdon,

Prudential Association
Thomas,

Public Works, Commissioners of, v,

V. Copner,

1065, 1066, 1067

703, 706
. 917

712, 720
. 129
. 850
. 98S

102, 103

73, 1065
. 855

561, 566, 588
. 820
6
. 623
. 621, 622
. 97
Company v.

640

805
. 836, 840
. 152, 172
. 276, 296

. 482

. 593

786, 788, 790

. 273, 280

. 84t
. 950, 953

. 992

Harby,

PuUen V. Reddy, .

Pulling V. Beddy, .

Pulsford V. Hunter,

Pulteney v. Warren,

Purcell V. M'Namara,

Purdewv. Jackson,

Purse V. Snaplin, .

Pusey I)esbouverie,

Pushman v. Filleter,

Pybus V. Gibb,

Pye, Ex parte, 290, 365, 383, 384, 401, 405

Pyke V. Northwood, . . . 615

Pym V. Blackburn, . . . 488

V. Bowreman, . . . 1063

V. Lockyer, . 375, 376, 383, 387

Quarrel v. Beckford, . . . 1076

Queen's College v. Sutton, . . 281

Queen, The, v. Clarke, Re Race, . 672

Quinton v. Frith, . . . . 873

Eaby v. Hidehalgh, . 888, 918, 920

Race, In re, 672

Rackham v. Siddall, . . .873
Radburn v. Jervis, .... 351
Radcliffe, In re, . . . . 1055
V. Warrington, . . 528
Radnor (Lady) v. Vaudebendy, 26, 1038
Raffety v. King, . . 1063, 1067

-XXXVlll

TABLE OF CASES.

Eaikes v. Boulton, .

V. Ward,
Bailton V. Matthews,
Eainy v. Ellis,
Eakestraw v. Brewer,

Eamage v. Great Western Eailway

1117

. 701

499, 503

618, 619

. 508

. 122

. 1063

30, 105

. 1064

163, 206, 209, 228

921

Company,
Eamsbotham v. Senior,
Eamsbottom v. Gosden,
Eamsden v. Dyson,
V. Hylton,
V. Jackson,
Ranald v. Eussell, .
Eanclifle (Lord) v. Parkyns,
Eand v. Cartwright,
' Eandal v: Payne, .
Eandall v. Errington

V. Eussell,
, Ean.dle v. Gould, .
Eanelaugh v. Hayes,
Eanken v. Harwood,
Eankin v. Lay,
Eann v. Hughes,
Eansorae v. Burgess,
Eaphael v. Boehm,
Eatcliff'e's case, . . 656,
Eatcliffe v. Davis, .

V. Winch,
Eaven v. Waite,
Eavenscroft v. Jones,
Eawbone's Bequest, In re,
Eawlins v. Powell,
V. Eawlins,
V. Wickham,
Eawson, Ex parte, .
Eay V. Stanhope, .
Eaymond v. Broadbelt,
Eaymond's (Lord) case,
Eayne v. Baker,
Eayner v.- Harford,
Eead v. Stedman, .

T. Strangeways,
Eeade v. Lowndes,
Beady v. Colson, .
Eede v. Oakes,
Eedman v. Eedman,
Eedmayne v. Foster,
Eeed v. Devaynes, .

V. Freer,
Eees V. Berrington,
V. Keith,
V. Williams, .
Eeeve v. Attorney-General,

V. Conyngham (Marquis of),
V. Hicks,
V. Richer,
V. Whitmore,
Eeeves v. Baker,
V. Heme,
Eeg. V. Eastern Archipelago Co.,
V. Fletcher,
V. Hassall,
Eegent's Canal Company v. Ware,

PAGB

139

724, 725
. 980
. 939
1066

Eehden v. Wesley,

315, 316

. 856

. 1008

. 624

. 1118

. 496

. 713

256, 318

666, 667

. 749

626, 880

. 314

386, 389

. 810

. 408

. 317

. 505

. 27

. 394

276, 280

653, 701

. 77

. 776

. 266

. 307

. 999

166, 180

. 511

. 235

. 1059

. 240

74

, 994

784

897

925

854

1029

783

773

952

208

628

922

922

534

974,

PAGE

Eeid V. Atkinson, .... 955

V. Eeid 964

Eennie v. Young, .... 618

Eeresby v. Farrer, .... 445

Eevell V. Eevell, . . . .121

Eeves v. Heme, .... 212

Eevett V. Harvey, . . . 584, 587

Bex V. Bayley, .... 1004

V. Coggan, .... 265

V. Scammonden, . . . 488

V. Simpson, .... 240

Eeyden v. Wesley, .... 912

Eeynell v. Sprye, . . . 504, 822

Beynish v. Martin, 97, 148, 151, 152,

153, 172, 173, 185, 186, 194, 197,

212, 213, 225
Eeynolds V. Messing, . . . 1037
V. Pitt, . . 1096, 1107

V. Tenham (Lady),

Ehodes v. Bate,

Eicards, Ex parte, .

Eiccard v. Prichard,

Eice V. Gordon,
V. Eice, .

Eich V. Jackson,

Eichards, In re,

V. Baker,

V. Chambers, .

V. Eichards, .

Eichardson v. Chapman,

V. Elphinstone,
V. Goodwin,
V. Greese,
V. Hamilton,
V. Horton,
V. Jenkins,
V. Merrifield,
V. Morton,
V. Smith,
V. Younge,

Eichman v. Morgan,

Eichmond's case, .

Eickard v. Barrett,

Eickards v. Gledstanes,

Eider v. Wager,

Eidges V. Morrison, 104,

. 659

597, 599
. 682
. 776
. 981
. 64

486, 502
. 314
. 218
. 791

276, 290
. 971
. 407
. 755

406, 409
. 937

125,

882, 912, 920

Eidgeway, Ex parte,
Eidgway v. Clare, .
V. Gray, .
V. Newstead,
Eidout V. Payne, .

V. Plymouth,
Eightson v. Overton,
Eiky V. Kemmis, .
Eishton v. Cobb,
Rittson V. Stordy, .
Eoach v. Garvan, .
Eoberdeau v. Rous,
Roberts v. Berry, .

V. Croft, .

V. Edwards,
Eoberls v. Lloyd, .

V. Massey, .

133

.■ 121

. 709

. 309

. 545

. 1069

. 390

. 1112

. 101

65, 805

99, 294, 295

351, 353,

354, 359

142,

143
554
1062
348
103
177
899
208
266

672, 693, 702, 715
. 942
526, 538
. 53
. 304
. 794
. 534

TABLE OF CASES.

XXXIX

^ PAGE

Eoberts v. Pocock, 276, 294, 311, 312

V. Eoberts, . 232, 233, 235

Kobertsou v. Armstrong, . . 874

V. Skelton, . . .535

Kobinson v. Addison, . . . 280

V. Briggs, . . 65, 70

V. Gee, . . 1016, 1018

V. Geldard, . . . 104

V. Governors of London

Hospital, . . .104
V. Hunt, . . .284

V. Macdonald, . . 772
V. Page, . . 502, 503

V. Pett, 238, 241, 254, 260, 897
V. Eobinson, 344, 880, 896,

897, 898
V. Smith, . ■. . 950
V. Tickell, . . .725
V. Tonge, 79, 81, 82, 85,

89, 1037
V. "Wall, . . .504

V. Whitley, . . .405
Eobison v. Killey, . . .720

Eobley v. Eobley, . . .351

Eoch V. CaUen, . . . 351, 353
Eochdale Canal Company v. King, 616
Eochford v. Hackman, . . . 700
Eodbourn v. Mold, ... 99
Eoddam v. Morley, . . . 1071
Eoddy V. Williams, ... 55
Eodger v. The Comptoir d'Escompte

de Paris, 814

Eodhouse V. Mold, . . .138
Eodick T. GandeU, 774, 776, 777, 778

Eodney v. Chambers,
Eoe d. Goatly v. Payne,

d. Parry v. Hodgson,
Eoebuck v. Chadebet,
Eoffey V. Shallcross,
Eogers, Ex parte, .

V. Acaster,

V. Clarke, .

V. Seale, .

v. Soutten,

V.Tudor, .

V. Waterhouse,
Eolfe V. Harris,

V. Peterson, .
Eolland v. Hart, .
Eolt V. White,
Eome V. Young, .
Eonalds v. Feltham,
Eoome v. Eoome, .
Eoper V. Bartholomew,
Eoper-Curzon v. Eoper-
Eorke's estates. In re,
Eoscarrick v. Barton,
Eose V. Clarke,
Eosewell v. Bennet,.
Eoskelley v. Godolphin,
EOss V. Borer, .
V. Bramsted, .
Eotheram V. Fanshawe,
Eotherham v. Eotherham,

855

. 1110

. 660

. 479

. 543

. 804

. 788

. 280

13, 14

. 317

. 1118

. 512

. 1105

1095, 1115

. 71

. 812

. 96, 533

. 131

387, 404, 405

. 1114

Curzon, . 711

65, 108

. 1052

. 781

399, 405

. 128

284, 285

. 748

. 628

99, 138

Eound V. Bell,
Eoundell v. Breary,
Eouse's estate. In re,
Eouse V. Barker, .

V. Jones,
Eow V. Dawson,

V. Eow, .
Eowe V. Eowe,
V. Teed,
V. Wood,
Eowel V. Whalley,
Eowland v. Exon (Dean of),
V. M'Donnel,
V. Witherden,
Eowley v. Adams,

V. Unwin, .
Eoxburgh v. FuUer,
Eoy V. Beaufort, (Duke of),

PA6B

. 1U72

. 773

. 314, 318

. 441

. 624

731, 774^ 818

138

339, 407, 409

. 30

. 1079

1024, 1028

. 1086

. 788

. 883

535, 875

. 921

351, 357

1095,

1116, 1117

. 636

318, 707

282, 301

Taylor

. 639
. 785
1024, 1027
. 802
. 624
. 1080
. 991

Eoyle T. Wynne, .
Eudge V. Winnall,
Eudstone v. Anderson,
EumboU, Ex parte ; In

and EumboU,
Eumsey v. George,
Euscombe v. Hare, 1021
Eusden v. Pope, .
Eush v. Higgs,
Eushbrook v. Lawrence,
Eushforth, Ex parte,
Eussell V. Clowes, .... 266
V. Dickson, 317, 351-, 352,

359, 360
V. Eussell, ... 54

Eutherford v. Maule, . . . 266
Eutland's (Countess of) case, . 830
Eutter V. Bartley, .... 31
EyaUv. Eolle, .... 734
V. Eowles, 733, 734, 796, 797,

803, 804
. 550
. 508
. 724
919, 921
. 728
. 784
. 141

Eyan's Estate, In re,
Eyan v. Daniell, .
V. Keogh, .
Eyder v. Bickerton,
V. Eyder, .
Eyland v. Smith, .
Eyves v. Eyves, .

Saddler v. Hobbs, . . 906, 910, 912

Sadler V. Turner 276

Sagitary v. Hyde, . . 84, 90, 94, 108
St. Albans (The Duke of) v. Beau-
clerk, . 347, 349, 351, 357, 360
St. John (Lord) v. Bonghton, 1068, 1071
-^ V. Wareham, . 1053
St. Luke's V. St. Leonard's, . 439, 440
Sainter v. Ferguson, . . . 1116
Sale V. Moore, . . . 951, 956
Salisbury v. Hatcher, . . . 529
V. Salisbury, . . .429
Salisbury's (Lord) case, . . 177
Salkeld v. Science, ... 29
Salles V. Savignon, . . 703, 704
Salmon v. Dean, .... 1056

xi

TABLE OF CASES.

PAGE

PAGE

Salomans v. Laing,

. 873

Semphill V. Bayly, 149, 152, 177, 178, _ __

Salter, Ex parte, .

. 682

203, W7

Salter's Trusts, In re, .

. 722

Sercombe v. Sanders,

. 598

Salusbury v. Denton,

. 968, 970

Seton V. Slade,

. 513

Salvin v. Weston, .

. 283

Severs v. Severs, .

. 282

Salway v. Salway, .

. 883

Sewell's Estate, In re, .

. 339

Samuel v. Rogers, .

. 945

Seymour v. Nosworthy, .

2

V. Ward, .

. 413

V. Seymour,

. 728

Samuell V. Howarth, 984, 986, 987, 1007

Schackleton v. Sutcliffe,

. 544

Sanders v. Deligne,

. . 6, 11

Shadbolt v. Vanderplank,

. 406

V. Pope, .

L103, 1104, 1105

Shaftesbury v. Marlborough,

. 363

V. Eodway,

. 854

Shaftsbury v. Shaftsbury, 292, 293,

Sandon v. Hooper,

1077, 1078, 1079

299, 661

Sankey Brook Coal Company, In re, 772

Shakels v. Eichardson, .

. 126

Saunders v. Dehew,

11, 47

Shakeshaft, Ex parte, 916, 917, 918, 919

V. Drake,

. 319

Shalcross v. Dixon,

. 74

V. Milsome,

. 122

Shallcross v. Finden,

130, 131

Saunderson v. Glasse,

. 589

V. Oldham,

. 246

Savage v. Foster, .

31, 32, 919

Shannon v. Bradstreet, .

. 616

Savile v. Blacket, .

. 282, 305

Sharman v. Eudd,

. 130

V. Savile,

. 394

Sharp V. Leach,

. 594

SaviU V. Savill, .

. 710

V. St. Sauveur,

. 266

Sawrey v. Eumney,

. 351

V.Wright, .

. 527

Saxon V. Blake,

. 509

Sharpe v. Foy,

. 32, 70, 77

Say V. Barwick,

. -.507

V. Scarborough, (Earl

of),. 136

Sayer v. Sayer,

. 275

Sharpies v. Adams,

. 11

Scales V. Collins, .

. 96

Shattock V. Shattock,

. 136

Scattergood v. Harrison

. 241

Shaw V. Borrer,

. 131

Scawin v. Blunt, .

. 783

V. Johnson, .

. 1072

Schlumberger v. Lister,

. 644

V. Lawless, . . 95

4, 957, 959

Scholefield v. Lockwooc

1020, 1075

V. Neale,

73, 590

V. Templer,

. 598, 999

V. Shaw,

. 660

Scholfield V. Heap,

. 388, 389

V. Thackray,

. 507

Schoole V. Sail, . i

, . .635

Sheddon v. Goodrich, .

. 306

Sciweiter v. Mayhew,

. 1058

Shee V. French,

. 119

Sclater v. Cottam, .

. 244

Sheffield v. Coventry, .

. 384

Scoones v. Morrell,

. 530

V. Orrery (Lord),

. 218, 229

Scott V. Bentley,

. 674

Sheldon v. Cox,

. 65

V. Forristall, .

. 104

Shelley v. Mason, .

. 1085

V. Hanson,

. ,506

V. Shelley,

. 962

V. Hastings, .

. 801

V. Westbrooke, .

. 686

V. Key, . . 7

24, 951, 960, 961

Shephard v. Elliott,

. 995

V. Nesbitt,

. . . 939

Shepherd v. Beecher, .

. 1000

V. Porcher, .

. 777

V. Churchill, .

. 474

V. Scholey, .

. 135

V. Elliott,

. 1074

V. Scott,

. 98, 235, 848

Shepherd v. Mouls,

. 897

V. Tyler, . 1

44, 213, 217, 218

V. Nottidge, .

. 951

Scottish Amicable Lif

3 Assurance

Sheppard v. Kent, ■ .

. 141

Society v. Fuller,

. 782

V. Sheppard, .

. 287

Scriven v. Sandon,

. 432

Sherly v. Fagg,

6

Scully V. Delany, .

. 902

Sherriff V. Axe, .

. 241

Sculthorpe v. Tipper,

. 878, 879

Sherrington v. Yates,

. 785

Scurfield v. Howes,

. 906

Sherwin v. Shakespeare,

535, 536

Seagrave v. Kirwan,

. 588

Sherwood, In re,

. 243, 250

V. Seagrave,

. 856

Shewell v. Dwarris,

. 237

Sealy v. Stawell, .

. 425

Shillito V. CoUett, .

. 692

Seaman v. Vaudrey,

. 543, 548

Shine v. Gough,

. 10

Searle v. Lane,

. 123

Shipbrook (Lord) v. Hinchin

Drook

Seaton v. Mapp, .

. 539

(Lord), . _ . . 7(

)2, 885, 907

Seed V. Bradford, .

. 411, 412

Shiphard v. Lutwidge, .

114, 124

Sefton (Lord) v. Salisbu

ry (Lord), 1113

Ship Warre, In re,

. 772

Selby, Ee,

. 805

Shirley v. Davis, .

518, 544

V. Bowie,

. 878

V. Ferrers,

139, 235

V. Selby, .

. 673

V. Stratton,

. 486, 506

TABLE OF CASES.

xli

PAGE

Shirt V. Westby 314

Shopland v. Kyoler, . . . 647

Short V. Taylor 617

Shovel (Sir Cloudesley) v. Began, 546
Shovelton v. Shovelton, . . 950

Shrewsbury and Birmingham Railway
Co. V. London and North Western
Eailway Co., , . . 511

Shrewsbury (Earl of) v. North Staf-
fordshire Eailway Co., . . 262
Shrewsbury v. Trappes, . . 613

Shudal V. Jekyll, 368, 369, 372, 373,

374, 377, 399, 404

280,

277

283

.' 31

. 777

6

. 529

. 295

. 290

631, 640

. 1061

111, 117

Shuttleworth v. Greayes,
Sibley v. Perry,
Sibson V. Fletcher,
Sichel V. Raphael,
Siddon v. Chamells,
Sidebotham v. Barrington,

V. Watson,

Sidney v. Vaughan,

Sieveking v. Behrens,

Silberschildt v. Schiott,

Silk V. Prime,

Silver V. Udall, . . . .480

Simmonds v. Bolland, . . . 626

Simmons v. Vallance, . . . 280

Simpson v. Chapman, . . . 260

V. Denison, . . 642, 643

V. Fogo, . . . .633

V. Howden (Lord), 261,

263, 621

V. Jones, . . . 710

V. Lamb, . . 821, 822

V. Manley, . . . 985

Simson's Trusts, Ee, . . . 891

Sinclair v. Jackson, . • 1074

Singleton v. Hopkins, . . . 476

Sirdefield v. Thacker, . . .723

Sisson V. Shaw, .... 712

Sitwell V. Bernard, . . . 318

Skapholme v. Hart, . . .820

SkUlett V. Fletcher, . . .992

Skinner, In re, . . . . 697

Skinner's Trusts, Ee, . . .290

Skinner v. Orde, .... 697

V. Warner, . . . 686

Skip V. Huey, . . . 975, 985

Skirving v. Williams, . . 339, 341

Slade's case, 759

Slade V. Barlow, . . . .470

v. Eigg, . • . . . 1062

Slatter v. Noton, . . . .301

V. Slatter, . . . 855, 856

Sleech v. Thorington, . . 276, 280

Sleeman v. Wilson, . . . 673

Slim V. Croucher, . . .33, 617
Sloman v. Walter, 1094, 1095, 1096

Small V. Cnrrie, . . . .991

•V. Dudley, 743, 745, 746, 754, 759

Smallman's Estate, In re,
Smart v. Hunt,
Smith, Ex parte.
Smith V. Adams,

Smith V. Baker,

V. Barnam, .
V. Bate,
V. Bruning, .
V. Burnam, .
V. Butler,
T. Capron, .
V. Chichester,
V. Cowdery,

PAQK

. 772

. 531

. 693

. 233

. 528

. 132

. 56

. 18

. 226

66

1066, 1074
. 996

. 482

V. Dolman (Sir Thomas), 531, 534

V. Etches 1023

V. Everett, . . ' . .776
V.Fitzgerald, . . .305
V. Green, .... 1064
V. Hayes, . . . .644
V. Kay, . . . 592, 598
V. Kempson, . . . 629
V. Knox, .... 986

v.Lay 247

V. Parkes, . . . .812
V. Pincombe, . . . 847
V. Eobinson, . . . 1059
V. Scotland (Bank of), 980,

994, 995
V. Selwyn, . . . .821
V. Simpson, . . . 1074

V. Smith, 408, 413, 653, 701,

702, 804, 915

V. Strong 387

V. Winter, . . . .989
Sneesby v. Thorne, . . . 511

Snow V. Booth 125

Soady v. Turnbull, . . 915, 916

Soames v. Eobinson, . . 126, 141

Soarv. Dalby 1077

Soilleux V. Herbst, . . . 855
Solicitors' and General Life Assur-
. ance Society v. Lamb, . . 106

Solley V. Gower 134

SoUey V. Forbes, .... 1008
Somerset (Duke of) v. Somerset

(Duchess of), . . 389
V. Cox, . . . .800
Somersetshire Canal Company v.

Harcourt, 616

Sorrell v. Carpenter, . . 74, 123
South, Ex parte, . . 775, 776, 779
South V. Bloxam, . . . .106
South Eastern Eailway Company,

Ex parte, . _ . . . .889
South Eastern Eailway Company v.

Brogden, 613

South Eastern Eailway Company

V. Knott, 529

Southampton Dock Company v. South-
ampton Harbor and Pier Board,

612, 613
Southcomb v. Exeter (Bishop of),

527, 533
Sowden v. Sowden, . . 419, 421
Sowerby v. Brooks, ... 72
Spackman v. Evans, . . .1112
v. Timbrell, . . .133
Spaight v. Cowne, .... 66

xlii

TABLE OF CASES.

PAGK

Spalding V. Buding, . . .816
Sparkes v. Cator, . . . 389, 390
V. The Company of the
Proprietors of the Liv-
erpool Waterworks, . 1110
Sparrow v. Friend, . . 459, 473
V. Jos^elyn, . . .280
Speer v. Crawter, 438, 439, 440, 442

Spencer, In re, . . . . 681
V. 'Chesterfield (Earl of), 693

292
65, 70
. 129
. 916 i

. 387, 405
. 351

. 98, 311

. 274 :
. 101 ;

. 953
. 179;
. 970'
. 820, 822
. 56, 541
1047, 1051, 1065 :
. 517, 529, 539
282, 317
. 482
. 438
. 771
. 980
912
22

V. Spencer,

V. Topham,
Spicer v. James,
Spickernell v. Hotham,
Spinks V. Kobins, .
Spire V. Smith,
Spong V. Spong,
Spooner's Trusts, In re,
Spoule V. Prior,
Sprange v. Barnard,
Sprigg V. Sprigg, .
Spring V. Biles,
Sprye v. Porter,
Spunner v. Walsh,
Spurgeon v. Collier,
Spurrier v. Hancock,
Spurway v. Glynn,
Spyer v. Hyatt,
V. Spyer,
Squib V. Wyn,
Squire v. Whitton,
Stacey v. Elph,

Stackhouse v. Jersey (Countess of),
Stackpole v. Beaumont, 150, 206,

207, 209, 212, 213, 228, 703, 706
Stackpoole v. Howell, . . . 240
Stafford v. Buckley,

V. Fiddon,

V. Selby, .
Stahlschmidt v. Lett,
Stainton v. Carron Iron Company

634, 850
Stamford, Spalding, etc., Banking

Company v. Ball, . . 789, 1015
Stammers v. Halliley, . . . 311
Stamper v. Barker, . . .787
Stanes v. Parker, . . . 243, 252
Stanhope's case, . . . . 1112
Stanhope v. Manners, . . . 1097
Stanley, Ex parte, . ... 772

Stanley v. Jones, . . . 820, 822

V. Potter, . 274, 277, 291, 294 i

V. Eobinson, . . . 504 i

V. Wrigley, . . .477

Stansfield v. Hallam, . . . 1023

V. Hobson, . 1068, 1069

StapUton V. Stapilton, 237, 584, 824, '

835, 836, 847, 848, 932

Stapleton v. Conway, . . . 318

V. Haymen, ... 49

State Fire Insurance Company, In

re, 93

Steadman v. Poole, . . .56
Steed V. Whitaker, . . 66, 68

283, 771
. 254
. 1074
130, 309, 625

Steele v. Stuart,

FAGS

. 945

Stelfox V. Sugden,

. 288

Stephens v. James,

. 699

V. Lawry,

. 723

V. Olive,

. 855

V. Praed,

. 621

V. Sole, 739,751,752,757,

763, 767

V. Venables,

. 33, 813

Stephenson, Ex parte.

. 108

V. Dowson,

. 281

V. Eoyce,

. 61

V. Wilson,

. 621

Sterne v. Beck,

. 1097

Stevens v. Bagwell,

. 819

V. Savage,

. 703, 706

Stevenson v. Eoche,

. 987

Steward, Ex parte,

. 776

Stewart, Ex parte. In re

Shelley, . 805

V. AUiston,

. 505, 544

V. Conyngham

(Marquis

of), .■

. 56,544

V. Great Western Bailway

837,

Co., .
V. Hoare, .
V. Sanderson,
V. Stewart,
Stickney v. Sewell,
Stiffe V. Everitt, .
Stikeman v. Dawson,
Stileman v. Ashdown,
Stiles V. Cowper, .

V. Guy, .
Stirling v. Forrester,
Stirling's case,
Stisted's case, .
Stocken v. Dawson,
V. Stooken,
Stockley v. Stockley,
Stocks V. Dobson, .
Stokes v., Cheek,
V. Heron,
Stone V. Compton, .
V. Godfrey, .
V. Grubham,
V. Lidderdale,
V. Stone,
v." Yea, .
Stonehewer v. Thompson,
Stonehouse v. Evelyn,

V. Stonehouse,
Storke v. Storke, .
Story V. Gape,

V. Johnson, .
V. Tonge,

V. Windsor (Lord)
Stott V. Hollingworth,
Stourton (Lord) v. Meers, (Sir Tho-
mas), .... 530
v. Stourton, . . .697
Strachan v. Brander, . . . 820
V. Brandon, . . . 588
Strange V. Fooks, . . 1002,1004

(Lord) v. Smith, . 222, 224

613, 622

. 251

. 889

842, 848

887, 893

. 788

. 32, 919

. 671

. 616

. 880, 901

. 1006

. 359

. 1047

. 241

. 410, 712

. 836, 847

798, 812, 1054

. 288

. 285

980

842

762

.' 817

. 916

. 820

. 1063

. 317

. 629

. 694

. 916

472, 473, 477

. 761

. 28,29,77

315

750,

TABLE OF CASES.

xliii

PAGE

236

98.

216
850
482
716
893
234
482
806
14

1038, 1039

. 703

. 986, 1008

. 351

. 108

260

874

Strathmore (Countess of) v. Bowes,
Stratton v. Grymes, 153, 191, 192,

198,
Straups V. Francis,
Streatfield v. Streatfield,
Stretch V. Watkins,
Stretton v. Ashmall,
Stribblehill v. Brett,
Strickland v. Strickland,
Stright, Ex parte ; in re EyleB,
Strode v. Blackburne, .

V. Kussel (Lady),
Strong, In re,
Strong V. Foster, .

V. Ingram, .
Stronge v. Hawkes,
Stroud V. Gwyer, ....
Stuart V. Marquis of Bute, 668, 674,

681, 694, 700

v. Cockerell, . . .800
Stuckvile T. Dolben, . . . 1061
Stukeley v. Butler, . . .758

Stump V. Gaby, . . . .600
Sturge V. Dimsdale, . . . 104

V. Starr, .... 27

V. Sturge, . . . .847
Sturtevant v. Ford, . . .816
Styan, Thomas and William, Ee, .
Styles V. Guy, ....
Sudlow V. The Dutch Ehenish Rail

way Company, .
Sugden v. Crossland,
Suggate v., Suggate,
Suisse V. Lowther, .
Sullivan v. Galbraith,

V. Jacob, .
Supple Y. Lowson, .
Surman v. Scot,
Surtees v. Parkin, .
Sutherland t. Cooke,
Sutton V. Jewke,

V. Jones,

V. Wilders, .
Sutter, Emily, Ee, .
Swaisland v. Dearsley,
Swallow V. Swallow,
Swan, Ex parte.
Swan V. Swan,
Swanton v. Biggs, .
Swayne v. Swayne,
Sweet V. Southeote,
Sweetapple v. Bindon,
Swift, Ex parte,

v. Nash,

V. Swift, . - — ,
Swinfe^ T. Chelmsford (Lord), . 850
■ V. Swinfen, . . 850, 882
Swinnock v. Crisp, . . . 721

Sykes v. Hastings,
Symons v. James, .

1111
258
728

350, 351, 389
284, 285
. 507
. 970
. 754
. 101
. 338
153, 206, 210
. 253
. 894
. 671
498, 509
286, 287
. 816
473, 474
. 1100
. 807
. 50
. 1040
714, 722
. 283
671, 672, 853

Taber v. Grover, .
Talbot y. Ford,

V. Kemshead,

253
132

1038

508

1062

PAGE

Talbot V. Marshfield, ... 74
V. Shrewsbury (Earl of), 379,
381, 406, 673, 693, 695, 696, 698

Tall V. Eyland,
Tanfield v. Davenport,
Tanner v. Florence,

V. Smith, .

V. Tanner, .
Tarbottom v. Earle,
Tarlton v. Hornby,
Tasburgh v. Echlin,
Tate V. Austin,
Taylor, In re,

V. Baker, .

V. Brown, .

V. Burgess, .

V. Cartwright,

V. Clarke, .

V. George, .
, V. Haygarth,

V. Hibbert, .

V. Knight, .

V. Martindale,

V. Portington,

V. Stibbert,

V. Taylor, .
Teague V. Eichards,
Tealiv. Watts,, .
Teasdale v. Sanderson,

V. Teasdale,
Tebbs V. Carpenter,

1015,

1095

628

56

552

304

287

917

1048

1016, 1018

243, 692

. 60

. 538

. 1007

386, 846

315, 344

. 950

265, 266

. 315

. 1101

. 283

. 509

56,61

300, 916

. 624

479, 480

. 473

33

254, 874, 877, 884

131

Telford v. Metropolitan Board of

Works, 641

Tempest v. Tempest, . . . 105

Tendril v. Smith, . . . .584

Tenham (Lord) v. Barrett, . . 659

Tennant v. Brail, . . . .236

Tennent v. Tennent, . . .847

Tennison v. Sweeny, ... 75

TerreU V. Higgs, . . . .623

v. Matthews, . . .902

Terry v. Terry, . . . .887

Terry's Will, In re, . . . 956

Teynham (Lady) v. Lennard, 659, 682

Thacker v. Key, . . . .426

Thackeray v. Parker, . . 476, 477

Thayer v. Lister, . . . .779

Thelluson V. Woodford, . . 399

Thomas V. Attorney-General, . 317

V. Bennet, . . .408

V. Britnell, . . .131

V. Daivies, ... 62

V. Dering, ^. 552, 553, 555

V. Gyles, . ^ . . 474

V. Porter 1086

V. Roberts, . . .688
V. Thomas, 279, 280, 281,

1019, 1020
Thomond (Lord) v. Suffolk (Earl of),

269, 272, 295, 296

Thompson v. Blackstone, . . 511

V. Bowyer, . . . 1068

V. Cartwright, . 70, 71

V.Cohen, ■_ . . .773

xliv

TABLE OF CASES.

PAGE

Thompson v. Cooper, . . . 129

V. Derham, . . . 638

V. Finch, . 903, 904, 921

V. Grant, . . .128

V. Griffin, . . 712, 713

V. Hudson, . 521, 1076, 1097

V. Lack, . . . 1006

V. Simpson, . 32, 49, 776

V. Spiers, . 774, 803, 805

V. Thompson, . 122, 128

V. Tomkins, . . 806, 809

V. Towue, . . .139

Thorn v. Newman, . . . 791

Thornber v. Sheard, . . . 586

Thornborough v. Baker, 1030, 1046

Thornbrough v. Baker, 1030, 1046, '

1053, 1081

Thorndike v. Hunt, ... 11

Thorne v. Thome, .... 1064

Thorneycroft v. Crockett, 1075, 1979

Thornhill v. Evans, . . . 1045

V. Manning, . . . 1059

V. Neats, . . . 1115

Thornton v. Bamsden, . . 565, 620

Thorp V. Owens, .... 724

Thorpe V. Eyre, . . . .785

V. H'oldsworth, ... 23

Thring v. Edgar, .... 29

Thurston v. Essington, . . . 723

Thwaites v. Foreman, . . . 309

Thynne (Lady) v. Glengall (Earl

of), . . 388, 390, 397, 406, 408
Tibbitts V. George, . . .779

V. Tibbetts, . . .950
Tichener, Ee, .... 804

Ticker v. Smith, . . . .874
Tidd V. Lister, . . .92, 105
Tiffin V. Longman, . . .971
Tildesley v. Clarkson, . . . 509
V. Lodge, . . 10, 60
Tillett V. Charing Cross Bridge Co.,

504, 509
Tilley V. Thomas, . . . 539,""
Timson v. Ramsbottom,
Tinney v. Tinney,
Tipping V. Power,

V. Tipping,
Tirell v. Bennet, .
Todd V. Beilby, .

V. Wilson,
Toft V. Stephenson,
Toker v. Toker,
Toleman v. Portbury,
Toller V. Carteret, .
Tolson V. Collins, .
Tombs V. Rooh, 92, 97, 98.

Tomlinson, Ee,
Tompson v. Judge,
Took V. Ely (Bishop of),
Tooke V. Hartley, .
Toombes v. Elers, .
Tooth V. Hallett, .
Toplis V. Hurrell, .

540
.' 804
. 494
96, 128
81, 98, 102
. 785
. 310
241, 243
125, 1071
581, 596
. 1105
. 940
. 410
102,
138, 312
. 692
. 588
. 1061
. 636
. 702
. 813
. 911

Tottenham's estate. In re,
Toulmin v. Steere,
TourviUe v. Naish,
Tovey v. Young, .
Townend v. Townend, .
Townley v. Sherborne, 858, 873,

Townsend v. Barber,
V. Martin,
Townshend v. Mostyn,

PAGE

509

65

77

621

260

), 903
909
281
352

351,
(Marquis of) v. Stangroom,
486, 495, 498, 500,

502, 546
V. Windham, . .139
Traffi)rd V. Boehm, . _. 889,917
Transatlantic Company v. Pietroni, 621
Trefusis v. Clinton (Lord), . . 535
Tremain's case, . . . . 694
Trench v. Harrison, . . . 422
Trevanian v. Mosse, ... 28
Treves v. Townshend, . . . 318
Tricker v. Kingsbury, . . 215, 216
Trident, The, . . . .110

Trigge v. Lavallee, . . .837
Trimleston (Lord) v. Hamill, 1076, 1078
Trimmer v. Bayne, 368, 369, 373,

384, 400, 405
V. Danby, ... 290
Trinder v. Trinder, . . .278
Troughton v. Troughton, . . 139
Trower v. Newcome, . . . 506
Trueloek v. Eobey, . 1068, 1074

Trutchv.Lamprell, . . 886,910
Tubbs V. Broadwood, . . .422
Tucker v. Henzill, ... 65

v. Laing, .... 986
Tuckey v. Henderson, . . . 357
Tuckfield v. BuUer, . . . .474
Tuckley v. Thompson, ... 96
TuUoch V. Hartley, . . 445, 943
Tunstall v. Boothby, . . .818
v. Trappes, ... 65

Turner, Ee 122

Ex parte, . . .918

V. Collins, . 583, 598, 600

V. Cox 128

V. Harvey, . . . 511
V. Maule, . . . .897
V. Morgan, 454, 458, 460,

470, 473

V. Turner, 283, 317, 717, 719

V. Wardle, . . .121

Turton v. Benson, . 234, 811, 812

Tweddell V. Tweddell, . . .715

Tweedale's Settlement, Ee,
Tweedale v. Tweedale, .
Twining v. Morrice,

V. Powell,
Twisden v. Twisden,

V. Wise, .
Twiss V. Noblett, .
Twopenny v. Young,
Twycross v. Moore,
Twyford v. Wareup,

. 703

. 65

510, 542

315, 388, 400, 405

394

783

820

1001

65

546

TABLE OF CASES,

xlv

PAGB

736, 749, 756, 759, 796

Twyne's case, .
Tylee v. Webb,
Tyler v. BeU,

V. Thomas,
Tyntv. Tynt, . . . ,

Tyrconnell v. Ancaster (Duke of),
Tyrell v. TyreU,
Tyson v. Cox,

V. Jackson

915
75
82
425
317
988
823

Underwood v. Hatton, . . . 916
V. Hitchcox, . . 504
V. Morris, 149, 150, 172, 173,
185, 186, 197, 198,

207 213
V. Stevens, 885, 909, 919^ 920
V. Stewardson, . .__ 480
Union Bank of Manchester, Ex

parte ; Ee Jackson, . . . 804
Union Bank of Manchester v.

Beech, .... 988, 996

Upperton v. Nickolson, 528, 543, 547

Upton V. Prince, .... 386

V. Vanner, .... 287

Vachell v. Roberts, . . .339
Valentine v. Middleton, . .470
Vane v. Corpe, ... 56, 503
Vancouvre v. Bliss, . . . 543
Vandebende v. Levingston, . . 919
Vandergucht v. De Blaquiere, . 855
Van Sandau, Ex parte, . . . 636
Vane (Earl) v. Eigden, . . 124

Vansittart v. Vansittart, 671, 672,

852, 853

Varley v. Winn, .... 313

Vaugermain (H^ritiers de la Dame de)

T. Les Keligieuses du Saint Sac-

rement, ..... 581

Vaughan, Ex parte, . . .1106

V. Buck, . . .342

V. Magill, ... 56

V. Vanderstegen, 32, 140, 916

V.Welsh, . . .635

Vauxhall Bridge Company (The)

V. Spencer (Earl of),
Venning v. Lloyd,
Vernon v. Thellusson,
V. Turley,
V. Vaudrey,
V. Vernon,
Versturme v. Gardiner,
Vickers v. Hand, .
V. Oliver, .
V. Pound,
Vickery v. Evans,
Vidler v. Parrott, .
Vignolles v. Bowen,
Vigrass v. Binfield,
Villareal v. Mellish,
Villiers v. Beaumont,
Vincent v. Godson,

v. Newcombe/
Vintner v. Pix,

235
. 634

. 624, 625
. 986
. 125

. 664, 702

. 888

. 535

. 97

275

.' 893, 896
. 891

. 56, 541

. 887

672, 673, 682

. 562, 581

. 122, 624
. 277
. 177

Vivian v. Mortlock,
Volans V. CaTr,
Vorley v. Cooke, .
Vouillon V. States,
Vyse V. Foster,

W. V. B.,

Wace V. Bickerton,

Wade V. Hopkinson,

V. Ward,
Wadham v. Kigg,
Wadman v. Calcraft,
Wafer v. Mocato, .
Wagstaffv. Bead,

V. Wagstaff,
Wainwright v. Waterman,
Waite V. Webb,
Waithman, Ex parte
Wake V. Conyers,
V. Harrop,
Wakley v. Froggatt,
Waldron v. Sloper,
Waldrond v. Waldrond,
Walker, Ee, .

(Anne), Re,

V. Armstrong,

V. Childs,

V. Denne,

V. Hardman

V. Jeffreys,

V. Jones, .

V. Laxton,

V. Meager,

V. Mioklethwait,

V. Shore, .

V. Smallwood

V. Smith,

V. Symonds, 887, 904, 906,

917, 919, 920, 921

V. Walker, 486, 491, 973, 1051

V. Wetherell, . . 720, 721

Wall V.Hall, . . . .892

V. Eogers, .... 851

V. Tomlinson, . . .784

V. Wall, . . . .318

Wallace v. Donegal (Lord), . . 31

V. Pomfret, . . .414

Waller v. Barrett, . . . -916

V. WUdridge, . . .807

Wallis V. Brightwell, . . .319

V. Littell, . . . .494

V. Portland (Duke of), . 821

V. Sarel, .... 535

Wallop V. Hewett, . 348, 350, 351

Walmesley v. Booth, . . . 588

Walpole V. Apthorp, . . . 307

Walrond v. Walrond, . . 672, 920

Walsh V. Acton, . . . .961

v. Gladstone, . . . 360

V. Wallinger, . . .969

V. Walsh, . . . 351, 722

Walter v. Maunde, . . 56, 971

Walwyn v. Lee, 14, 16, 17, 18, 22, 24

Warburton V. Hill, . . .807

PAGE

. 307

. 727

. 22

. 498

. 258

. 599
. 425
. 709
. 1063
. 922
1100, 1109
. 1109
. 28
. 278
. 964
. 104
. 806

433, 440, 443, 444
644, 1007
. 644
. 803
852, 853
. 703
. 707
. 1023
. 104
. 265
. 980

527, 532, 538, 539

635, 1055

. 283

114, 137

. 636

714, 920

. 74

. 588

xlvi

TABLE OF CASES.

PAGE

PAQB

Ward, Ee, . . .

. 33

Webb V. Direct London and Ports-

V. Cartter, .

. 1071

mouth Eailway

Co.,.

. 508

V. Grey,

. 283

V. Grace,

206, 218

V. Jeftery, .

. 528, 531

V. Hewitt, .

989

996, 998

V. Society of Attorneys, . 642

V. Hughes, .

. 538

539, 540

V. St. Paul, .

. 682

V. Shaftesbury ( Earl of)

, 247, 260

V. Ward, .

. 812

V. Wools,

725, 951

V. Wolverhampton

Water-

Webber V. Hunt, .

. 1076

works Co., .

. 1049

, V. Smith, .

. 1103

Warde, In re,

. 890

Webster v. Alsop, .

. 101

V. Dickson,

. 504

V. Cecil, .

. 498

V. Jeffrey, .

. 528, 531

V.Hale, .

275, 280

V. Warde, .

424, 688, 690

V. Webster,

799, 856

Ware v. Egmont (Lord),
V. Grand Junction

52, 59

Wedderbum v. Wedderburn,

258, 632

Water-

635, 922

works Company,

. 642

Wedgewood v. Adams,

. 507

V. Horwood,

. 621

Weeks V. Gore, ' .

. 128

Waring v. Hotham,

. 440

Weir V. Chamley, .

138, 311

V. Manchester, Sheffield and

Weiss V. Dill, .

. 252

Lincolnshire

Kailway

Welby V. Kockliffe,

. 282

Co., . .

. 512

Welles V. Middleton,

. 588

V. Waring,

. 875, 893

Wellesley v. Beaufort (

Duke

of).

Warington v. Wheatstone,

.640

671, 680,

681,

6S4,

Warmstrey v. Tanfield (Lady),' 729, 732

688, 690,

691,

700,

Warner v. Baynes, 454

458,470, 472

701, 714

V. Wainford,

. .128

V. Wellesley,

.

418. 773

Ex parte,

. 686

Wellesley's (Mr. Long)

case,

.' 706

Warre, Ship, In re,

. 772

Wells V. Malbon, .

. 791

Warren v. Davies,

. 132

V. Maxwell, .

538,

539, 540

V. Postlethwait,

. 282

V. Price,

. 707

V. Warren,

. 390

West V. Jones,

33, 902

V. Wright,

. 284

V. Kerr,

220, 228

Warrick v. Warrick,

66, 68

V. Lawday, .

99, 138

Warter v. Yorke, .

. 703

; V. Eeid,.

. 59

Warwick v. Hawkins, .

. 363

Westby-v. Westby,.

. 836

Wasse V. Heslington, .

. 132

Western v. Eussell,

. 548

Watercourse (The case of the), . 617

Westley v. Clarke,

905, 906

Waterhouse v. Stansfleld,

. 942

Westmeath's ( Lord ) cas

e,

. 686

Waterlow v. Bacon,

. 622, 623

WestmeatH v. Salisbury,

. 855

Waters v. Shaftesbury (Fa,rl of), . ' 247

V. Westmeat

h, 851, 853,

Wathen v. Smith, .

. 409, 410

855, 856

Watkins, Ex parte,

. 806

Weston V. Berkeley,

. 29

Watkins v. Williams,

. 469 '

Westzynthus, In re.

. 110

Watson, Ex parte,

. 918

Wethered v. Wethered,

. 772

V. AUcock,

. 986

Wetherell v. Wetherell,

. 725

V. Dennis,

. 787

Whaley v. Dawson,

444, 475

Y. Lincoln (Earl

of), 374, 387

Whalley v. Whalley,

. 617

v. Marston,

. 498, 509

Wharton v. Durham ( L

3rd)/

. 413

Watson V. Northumberland ( Duke

v. May, V

. 632

of), . .

. 471, 477- ■

jWhateley v. Slade,

. 548

V. Eeid, . 351,

532, 533, 538

Whatton v. Cradock,
Wheatley v. Bastow,

. 1060

V. Saul, .

. . 916

. 1003

V. Watson,

. 384, 389

V. Lane, . ■ .

. 915

Watts V. Cresswell,

. / 32

Wheeler v. Bingham, 14

5, 165, 173,

V. Girdlestone,

. 887, 898

■ j 178, 17i

), 208,

216, 217

V. HailsweU,

. . 32

V. Warner,

. 221

V. Porter,

. 794

Ex parte, .

. 682

T. Shuttleworth, .

. . 981

Whieldon v. Whieldon, .

. 728

Waugh V. WychC) .

. .887

Whishall V. Short, .
Whistler v. Forster,

. 1061

Way's Trusts, Ee, . .

. 794

. 816

Wayne v. Hanham,

. 1062

; V. Newman, .

. 920

Weall V. Eice,

. 390, 400

Whitbread v. Jordan, .

54, 58

Wearing v. Wearing,

. .341

V. Smith,

. 1022

Weaver, In the matter of,

. 637

Whitoher v. Hall, .

. 991

TABLE OF CASES.

xlvii

■.TT, . , FAQS

White's case, 508

Trusts, Re, . . 968, 971
White V. Baugh, . . . .883
V. Blake, . . . .986
V. Briggs, . . . .961
V. Cuddon, . . . .510
T. Ewer, . . . .1065
V. Grane, . . . 713, 973

V. Herrick 709

V. Wakefield, ... 64

V. Wakley, . . . .618

V. Warner, .... 1107

V.White, . . . .970

Whitehead, Ex parte, . . .717

V. Bennett, . . . 1102

V. Lynes, . . . 636

Whitfield V. Hales,

V. Hodges,
Whiting V. White,
Whitmore v. Byan,
Whitney v. Smith,.
Whittaker v. Whittaker,
Whittemore v. Whittemore,
Whittingstall v. Grover,
Whittle V. Henning,
Whorwood v. Simpson,

V. Whorwood,
Whyte V. Meade, .
Wichalse v. Short,
Wickenden v. Eayson,
Wickham v. Nicholson,
Wicks V. ScrivenSj .
Widdowson v. Duck,
Widmore v. Woodroflfe,
Wigg V. Nicholl, .
Wigg V. Wigg,
Wightwick V. Lord,
Wilbraham v. Livesey, .
Wilcocks V. Wilcocks, 415, 418,

421, 422
Wilcox V. Drake, .
Wild V. Hillas, .
V. Lockhart, .
V. Wells,
Wilday v. Barnett,
V. Sandys, .
Wilde V. Gibson, .
Wildes V. Davies, .
Wildgoose V. Wayland,
Wildman v. Wildman,
wiles V. Greshani, .
Wllke's Charity, In re,
Wilkes V. Bodington,
V. Steward,
V. Wilkes, .
Wilkins, Ini re,

V. Hogg, .
V. Sibley,
Wilkinson, Ex parte,

In re, .
Wilkinson's Estate, In re,
Wilkinson V. Bewick,, .
V. Charlesworth,
V.Duncan, .

. 987
. 1066
. 945
244, 896
. 533
. 551
. 143
. 790
. 529
. 424
. 581
. 1061
. 96
. 1059
. 1064
. 888
. 967
. 104
47, 77
. 333
56, 62

685

622

1063

483

274

342

69

240

51

783

875, 880, 897

. 973

. 72

. 887

. 424

. 481

. 913

. 812

. 806

: 274

. 892

. 882

. 788

345, 879

Wilkinson v. Fowkes,
V. Gibson,
V. Hartley,
V. Parry,
V. Wilkinson,

Wilks V. Groom, .

Willan V. Lancaster,
V. Willan, .

Willes V. Greenhilll,

Willett V. Blandford,
V. Winnell,

Williams, Ex parte,
V. Allen,
V. Armstrong,
V. Baily, .
V. Bayley,
V. Chitty,
V. Corbet,
V. Edwards,
V. Everett,
V. Glenton,
V. Hughes,

PAQK

. 593
787, 791
. 530
919, 921
. 251
. 882
. 132
. 510
804, 805, 813
. 258
. 1048
713, 715
. 917
. 307
. 854
. 597
130, 132
. 954
538, 548, 552
774
536
275, 305

V. Jersey (Earl of), 617, 1117
V. Kershaw, . . . 104
V. Lambe, 13, 16, 19, 23,

24, 25
V.Lee, . . . .622
V. Lomas, . . . 139
V. Londsdale ( Lord ), . 265

V. Nixon,
V. Owen,
V. Piggott, ,
V. Powell,
V. Price, .
V. Protheroe,
V. Sorrell,
V. Springfield,
v^ Williams,

(Lady) v. Wray,
Williamson v. Gihon, .
Williamson v. Wooton, .
Willis V. Kibble, .

V.Willis,' .
Willonghby v. WiUoughby,
Willox V. Ehodes, .
WUls V. Slade,
Wilmot V. Pike, .
Willmott V. Jenkins,
Wilflon, Ex, parte, .

V. Brownsmith, .

V. Cluer,

V. Fielding,
' V. Hart,

V. Keating,

V. Knubley,

V. Maddison,

V. Major, .

V. Metcalfe,

V. Muschell,

V. O'Leary,

V, Short, .

V. Wetherhead,

V. WiUiama,

869, 899, 909
. 1049
. 589
. 258
. 986, 1002
. 820
. 1054
. 1055
476, 837,
838, 951, 956
. 1038
. 233
. 509
239, 248

. 10

282, 305

, 469, 474

. 811

. 308

996, 1074

. 280

1075, 1076

. 94

. . . 64

. 64

. ". 126

284, 285, 314, 317

. 953

1075, 1076

. 856

. 350, 351

. 821

. 635

. 647

xlviii

TABLE OF CASES.

Wilson V. Wilson, 772, 802, 803,

852, 853, 854, 855

Wiltshire v. Eabbits, . . .811

Winch V. Brutton, . . . .952

V.James, . . . 703, 707

V. Keely, . . . .780

V. Winchester, . 497, 499, 546

Windham v. Windham, . 348, 359

Wing V. Harvey 1106

Wintield V. Whaley, . . .522
Wing V. Fenwick, . . . 969, 971
Winscomb, Ee, . . . . 692
Winter v. Anson ( Lord ), 66, 67, 69
V. Blades, . . . .534
V. Easum, . . . .789
Wintle V. Carpenter, . . 438, 441
Wisden v. Wisden, . . .132
Wise V.Wise, . . . .804
Wiseman v. Forster, . . . 172
Withingtonv. Tate, .... 1054
Withy v. Mangles, . . . .971
Witts V. Boddington, . . .971
Witty V. Marshall, . . . .697
Wolestoncroft v. Long, . . 113, 133
WoUaston v. Tribe, . . 594, 600
Wolstan V. Aston, .... 1051
Wood V. Bernal, .... 531
V. Briant, . . . 318, 411
V. Copper Miners' Co., . 644

V. Cox, . . . .961
V. Downes, . 588, 589, 820, 821
V.Griffith, . . . .820
V. Hardisty, . . . 131

V. Machu, .... 532
V. Ordish, . . . .141
V. Patteson, .... 727
V. Penoyre, . . . 312, 313
V. Kichardson, . . . 611
Wood V. Scarth, . . . 498, 500
V. Wood, . . . 429, 1023
Woodcock V. Oxford and Worces-
ter railway Company, . . 993
Woodcock V. Kennock, . . . 969
Woodhouse v. Shepley, . 229, 230
V. Woodhouse, . . 916
Woodin, Ex parte, . . . 918
Woodman v. Higgens, . . . 1077
Woodmeston v. Walker, . . 288
Woods V. Woods, . . . .725
Woodward v. Darcy (Lord), . . 128
V. Gyles, . . . 1116
Woodyatt v. Gresley, . . . 917
Woolam V. Hearn, . . . 484
WooUaston's case, .... 1111
Woolridge v. Norris, . . . 1008
Woolscombe, In re, . . .681
Woosnam v. Price, . . . 1008
Wormald v. Maitland, . . 48, 53
Worrall v. Harford, . 263, 264, 912
V. Jacob, . . . 851, 855
Worsley v. Scarborough (Earl of),

561, 563,

Wortham v. Pemberton,
Worthington v. Evans,
V. M'Craer,
V. Morgan,
Wray v. Field,
Wren v. Bradley, .
V. Kirtou, .
Wride v. Clark,
Wright V. Atkyns, 949, 950,

V. Callender,
V. Hall, .
V. Howard,
V. Naylor,
V. Proud,
V. Sandars,
V. Simpson,
V. Snowe, .
V. Tuckett,
V. Vanderplank
V. Warren,
V. Weston,
V. Wright,

Wring V. Wright,

Wroe V. Seed,

Wroughton v. Colquhoun

Wulf V. Jay, .

Wyatt V. Barwell, .

Wych V. Packington,

Wyche, In re,

Wycherley v. Wycherley

Wyke V. Rogers,

Wyllie V. Pollen,

Wynch V. Grant, .
V. Wynch, .

Wyndham v. Ennismore

Wynn v. Morgan, .

Wynne v. Hawkins,
V. Hughes,

Wythe V. Henniker,

Wythes v. Labouchere,

66, 74

Yalden, In re.
Yard v. Ellard,
Yates V. Aston,

V. Maddan, .

V. Yates,
Yeates v. Grooves, .
Yelverton v. Newport,
Yockney v. Hansard,
York V. Brown,
York (Mayor of).

PAGB

703, 711

222, 224

721

54

351

236

883

141

956,

957, 972

. 285

. 179

539, 542

. 693

, 592, 593

991

984,' 1000

32, 920

. 304

583, 600

. 302

. 307

. 771

. 281

. 878

282, 310

. 1002

. 48

. 587

. 249

. 842

. 989

. 70

. 122

. 318

. 699

517, 529

. 953

. 945

99, 101

. 981

. 961

. 775

. 122

283, 284, 319

288, 289, 315

. 774

. 177

. 359

. 244

V. Pilkington,
440, 444,
and North Midland Railway
Co. V. Hudson, ,
Young V. Clerk,

V. Hassard,
V. Peachy,
V. Young,
Younge v. Furse,

637

242

. 506, 586

. 98, 138

. 583, 1051

6, 7, 429, 473, 481

. 209, 214, 227

Zambaco v. Cassavetti,

640

INDEX

CASES CITED IS" THE AMEEICAN NOTES.

THE lOJMBEKS EEFBB TO THE PAGES 01' THE AMERICAN EDITION.

PA&Ii

Abbott V. Converse, . . . 1516

V. Goodwin, . . . 1615

V. Hanson, .... 2006

V. Steam Packet Co., . . 572

V. Wilmot, .... 1728

Abeel v. Eadcliff, .... 1029

Abel V. Alexander, . 1912, 1913

Aberorombife v. Knox, . . . 1898

Abernethey v. Boardman, . . 1631

Abila V. Burnett, . . . .599

Ableman v. Booth, . 1389, 1402

Acer V. "Westcott, . . . .190

Ackerman v. Emott, 1801, 1802, 1803

V. Vreeland, . . .699

Ackla V. Ackla, .... 2008

Ackston V. Raymond, . . . 2047

Ackworth v. Ackworth, . . 849

Acton V. BlundeU, 264

V. Woodgate, . 1657, 1659

Adair v. Adair, .... 1285

V. Winchester, . . .1670

Adam v. Adam, .... 1625

Adams' Appeal, .... 562

Adams v. Ames Co., . . 898, 901

V. Brackett, . 340, 349, 350

V. Latham, .... 581

V. Leavens, .... 1666

V. Lindsell, . . . 1080

V. Meyrick, . . . 332

V. Robertson, . . . 982

V. Eobinson, . . . 1646

V. Sage, .... 1732

V. Sturgis, .... 418

V. Way, .... 1910

V. Weare, . . 1032, 1038

V. Westbrook, . . .590

V. Wardley, . . .946

Adams Bank v. Anthony, 1899, 1900

Aday v. Echols, .... 1028

VOL. II. — D

Addison v. Bowie, .

PAQK
1500

Adey v. Echols,

1028',

1155

Adle V. Prudhomme,

1735

JEtna Ins. Co. v. Wires,

'. 281

, 282

JEtna National Bank v. Fourth

National Bank, .

1653

Agee V. Steele,

1913

Agnew V. Pettterman, .

383

V. Johnston,

61

V. Merritt, .

1918

Agricultural Bank v. Fallen,

291

Agron V. Bonn,

1368

Aiken v. Cole,

304

Aiman v. Stout,

1242

Ainstie v. Boynton,

1672

Akerly v. Vilas,

1404

Alabama Bank, v. CoUins,

589

Alam V. Jourdan, .

103

Albany Co. v. Devendorf,

1907

Albert v. Perry, . 1493,

1494,'

1495

V. Saving Bank, .

61

Alcock V. Hill, 1899, 1900,

"l909,'

1910

Aldersou v. Ames, .

38

V. Ayres,

204

Ex parte.

1643

Aldrich v. Campbell,

1347

V. Cooper, 190, 192, 207

1897,

1898

1S04

Aldridge v. Eshelman, .

1030

1031

Alexander v. Adams,

1659

V. Ames,

48

V. Ghiselin, .

1645

V. M' Murray,

383

V. Pendleton,

33, 65

V. Wallace, .

104

V. Worthington,

. 652

Alger V. Scott,

'l645

, 1646

Allaire v. Hartshorne, .

84, 86

Allard v. Laumade,

. 1640

TABLE OF AMEEICAN CASES.

PAGE

Allen V. Administrator, . . 1284

V. Allen 676

V. Arme, .... 1258
V. Bryant, .... 1093
V. Burke, .... 1026
V. Centre Valley Co., . 396, 403
V. Clark, . . . 293, 304
V. Davis, .... 1230
T. Gaillard, .... 1801
V. Hamilton, . . . 1335
V. Hopson, .... 1333
V. Inhabitants of Cooper, . 1106
V. M'Eaie, .... 1990
V. Martin, . . . .589
V. Moss, . . . .206
V. Pink, . . . .947
V. Eanney, .... 1388
V. Smith, .... 1636
V. Wells, 418, 421, 423, 428,

429, 1411
Allerton v. Johnson, . . .1117
AUey V. Deschamps, . 1114, 1138
Allis V. Billings, . 1704, 1710, 1733
V. Jewell, .... 1671
Almony v. Hicks, . . .904

Alsop's Appeal, . . . 647, 663
Alston v. Lee, ..... 1859
V. Mumford, . 255, 328, 329
Alstone v. Alstone, . . . 1487

Alton Ins. Co. v. Buckmaster, . 860
Ambrose v. Keller, . . . 1142

Ames V. Myers,
Amicable Life jns. Co.

1403, 1409
Sedgwick,

1909, 1916
Amistead v. Wallace, . . . 1909
Ammant v. Turnpike Road Co., . 1412
Ammons v. Whitehead, . . 19 JO

Amory v. Francis, .... 323
V. Hicks, . . . .904
Amos V. Horner, .... 507
Ancaster v. Mayer, 323, 332, 340,

341, 350
Anderson v. Anderson, . . 588, 592
V. Baumgarten, 1667, 1673
V. Berry, . . .569
T. Fry, .... 1136
V. Maltby, . . .401
V. Mannon, . 1899, 1913

V. Miller, . . . 1669
V. Roberts, 1356, 1358,

1373, 1378, 1380, 1381

V. Tydings,
Anding v. Davis, .
Andrews, In r.e,

V. Andrews,
V. Beeker,
V.Bell, .
V. Bishop,
V. Brown,
V. Carpenter,

989, 990

. 1991

. 1499

. 554, 596

1624, 1669

1129, 1138, 1140

. 346

. 1153

. 1899

Andrews v. Merrett,

V. Winkler,
Angel V. M'Clellan,
Anketel v. Converse,
Anonymous,

V. Gelpcke,
Anspach v. Bash, .
Anthony v. Anthony, .

V. Dunlap,

v. Leftwich,

V. Smith,

V. Wilson,
Antrobus v. Davidson, .

V. Smith,
Apgar V. Hiler,
Apperson v. Cross,
Appleton V. Parker,
Archer v. Bank of England,
Case of,
v. Dunn,
V. Hudson, .
V. Preston, .
Arden v. Patterson,
Ardglass v. Muachamp, .
Argenbright v. Campbell,
Arglasse v. Pitt,
Armas, Succession of.

PA OB

306, 1915
. 1729
. 1492

73, 84, 217
. 2006

1725, 1795
. 974
. 1983

1389, 1392
1018, 1039, 1140
. 669
. 951
. 1345
. 1645
. 1916

1906, 1908

1915, 1916
. 53
. 1827
. 1342
. 1270

1826, 1827
1223, 1364, 1365
. 1263
. 182
. 1827
. 592

V. Essex Fire and Marine

Insurance Co., . 981
V. Fenter, . . . 1333
V. M'Cey, . . . 1672

1391, 1392
. 578
. 994
. 1353
419, 427
90, 94
. 306
. 578
. 46
. 916
1917

1914,

Armistead v. Ward, 1361, 1913, 1916
Armstrong's Appeal, 324, 326, 652,

654, 655
Estate of, 552, 555, 562
v.. Pearson, . . 1124
v., Stone, 1488, 1511,

1517, 1524
Arndt v. Williams,
Arnold v. Byars,

V. Cessna, .

V. Guines, .

v.Hamer, .

v.. Patrick, .

Arnott V. Woodburn,

Arrington v. Coleman,

Arrison v. Harmistead,

Arsdale v. Drake, .

Artcher v. Douglass,

Arthur v. Arthur, .... 1734

Artz V. Glover, 1989, 1990, 1995, 1999

Asay V. Hoover, .... 1986

Ash V. Daggy, .... 1000

V. Livingston, ... 90

Ashbee v. Pidduck, . . . 1916

Ashe V. Johnson, . . 1414, 1415

Ashley v. Cunningham, . 195, 201

Ashton's Appeal, . 83, 84, 99, 1674

V. Ashton, . . 657, 661

Estate of, . . . ; 562

Ashurst V. Ashurst, . . . 588

Ashwell V. Loomis,, 1230, 1275, 1283

Astley v.Reynolds, . . . 1249

V. Weldon, 2052, 2054, 2065

Aston V. Pye, . . . .831

Astor V. Hoyt, .... 2006

V. Milloy 2007

Astor V. Wells, . . . 168, 206

TABLE

OF

AMERICAN CASES.

h

PAGE

PAGE

Atckison v. Robertson,

582, 1800

Bailey v. Adams, .

1906, 1911

Athy V. M' Henry, .

1001

V. Bailey, .

. 993

Atkins V. Barwick,

. 1659

V. Claxk, .

. 312

V. Chilson, .

. 2044

V. Ekins,

. 387

V. Hill, .

. 586

V. Gould, .

. 2008

V. Kinnier,

2052, 2064

V. James, .

1149, 1151

Atkinson v. Brooks,

. 87

V. Kichardson,

. 180

V. Leonard,

1361, 1369

V. Ryder, .

. 1823

V. Webb,

. 823

V. Sisson, .

. 906, 918

Atlantic De Laine Co. v. Trediok, 1354

V. White, .

. 180

Atlas Bank v. Brownell,

. 1899

V. Wilson, 101,

213, 1707,

V. Jsahant Bank

382,

1725, 1727

390, 2048

Baillio V. Baillio, .

. 592

Attorney-Gen. V. Baliol College, . 2013

Baily v. Brownfield,

. 279, 280, 312

V. Deerfield Bridge

Bainbridge v. Wade,

. 674

Proprietors,

. 1153

Baine v. Williams,

. 314

V. Gower,

1148

Baird v. FoUiver, .

2044, 2067

v. Moore,

570-

Bakeman v. Montgomery, . . 195

V. Parkin,

665

Baker's Appeal, 396, 39"

', 398, 399,

V. Sitwell,

997

402, 403, 413

V. Sothon,

1

955

Baker v. Batt,

. 1286

V. TyndaU,

260

V. Bliss,

. 162

Atwood V. Mansfield,

1217

V. Briggs, .

1901, 1913

V. Vincent, . 27

2, 283, 303

V. Fordyce, .

. 1901

Aubry v. Middleton,

. 351

V. Glass,

1028, 1031

Augur V. New York Belting

' Co.,

V. Hilt,

. 1084

1628, 1649

V. Mather, .

. 37, 189

Austin V. Dorwin, 1906, 1907,

1911, 1913

V. Morton, .

. 9(5, 1247

V. Tawney, .

. 1129

V. Spencer, .

. 1733

Y. Winston,

1235, 1246

V. 'Iresher, .

. 2002

Averall v. Wade, .

. 270

V. Walker, .

. 1916

Averell v. Loucks, . 262, 28

2, 390, 421

V. Whiting, .

. 1623

Averill v. Taylor, .

. 2006

T. Whitney,

. 1636

Ayers v. Baumgarten, .

. 1035

V. Wimpel, .

. 421, 423

Aymar v. Roff,

. 1517

Balch V. Hatch,

. 702

Ayres v. Dapree, .

. 224

V. Hulbert, .

. 702

V. Depsey, .

. 38

Baldwin v. Carlton,

. 592

V. Husted, . 273,

1938, 1939

V. Jenkins,

1986, 1988

v. Pease,

. 2070

V. Johnson,

. 180

V. Lord, .

. 400

Babcock, In re.

1336, 1898

V. Matson,

. 1363

V. Bridge,

. 205

V. Phillips, .

1265, 1281

V. Hawkins, .

. 1728

V. Van Vorst,

1119, 2050

V. Hubbard, .

. 1797

V. Western Res

srve Bank,

V. Jordan,

. 84

1905, 1910

V. Kennedy, .

. 2007

Baldy v. Brady,

. 383

V. M'Commant,

. 1363

Ball V. Brown,

. 583

V. Wyman,

. 1987

Ballage v. Southee,

1226, 1230, 1233

Bach V. SlideU, .

. 1704

Ballard v. Burgett,

. . 62

Backenstross v. Stabler,

. 974

V. Walker,

. 1116

Backhouse v. Patton,

383, 388

Ballards v-. M'Carty,

. 45

Backus' Appeal,

. 999

Balliett's Appeal, .

. 655

V. Byron, .

. 1639

BallLn v. Loomis, .

. 1373

V. Murphy,. 403, 40

5, 411, 414

Ballinger v. Tarhill, .

. 1375

Bacon v. Brown, .

. 1991

Balsh V. Hyarm, .

. 344

V. Cottrell, .

. 2011

Baltimore and Ohio R.

R. Co. V.

Baden v. Pembroke,

. 1084

Wheeling, .

. 1415

Badger v. Boardman,

. 2049

Bane's APPS3,1,

. 1213

Bagarly v. Gaither, 37, 47,

48, 84, 85

Bane v. Beekwith, .

. 347

Bagley v. Buzzell, .

. 1911

Bangs V. Mosher, .

. 1915

V. Peddle, 2052, 2054,

2063,

V. Strong, 1906,

1908, 1910, 1915

2064, 2068

Bank v. Bridge Co.,

• . . 2006

Bagley v. Wallace, .

. 2007

V. Burke,

. 202

Bagot Y. Doughton, .

345

V. Burns,

. 1939

lii

TABLE OF AMERICAN CASES,

PAGB

Bank t. Campbell, ... 90

V. Colcord, .... 1902
V. Daniel, . . . 982, 1735
V. Dundas, . . . .293
V. Flagg, . . . 180, 188
T. Godfrey, . 84, 85i 99, 184, 188

V. Gourdin 90

V. Hastings, . . . 1642, 1673
V. Hoge, . . .1914,1917
T. Howard, . . . .293
V. James, .... 1918
V. Janney, .... 1657
V. Jones, .... 62
V. Leavitt, .... 1914
Y. Martin, .... 574
V. Matson, .... 1901
V. Monmouth, . . . 1916
T. Pearce, . . . .1912
V. Pindall, .... 1645
V. Eudy, . . 280, 287, 288
V. Smith, .... 1906
V. Tinsdell, .... 1907
v. Upmann, .... 2008
V. "Whyte, . . 1988, 1990

V. Wilkins, . . . .410
V. Willard, .
_of Alabama v. Godden,
of Alexandria v. Lyman,

V. Lynn,
of Bellows Falls v. B. K. Co.,
1350, 1351, 1355,1365,
of Columbia v. Hagner,
of Commerce's Appeal,
of England v. Tarleton,
of Ireland v. Beresford,
of Kentucky v. Eeizer, 417,

423, 426

of Louisville v. Curren, . 155

of Michigan v. Carpenter, . 93

of Mobile v. James; 1906, 1917

V. Planters' Bank,

1668, 2009
V.Steele, . . 168
of Montgomery v. Walker,

1917, 1918
of New Milford v. Town of

NewMilford, . . .177
of Niagara, In re, . 543, 545, 547
. of Republic v. Millard, . 1653
of Salina v. Abbott, . .278
of South CaroliBa v. Camp-
bell, 94

of Steubenville V. Hoge, .1921

of United States v. Daniels, . 1731

V. Davis,

168, 169, 170, 174

v. Hatch, . 1907

V. Hirst, . 595

V. Peabody, 312

of Utica V. Ives, . 1909, 1916

V. Mersereau, . . 102

V. Smalley, . . 1664

of Whitehall v. Pettes, . . 1731

Banks v. Ammon, .... 205

670
1898
1039
1139

1389, 1400
1105
1665
2009
1918

Banks v. Wilkes, .
Banuerman v. Weaver,
Barbadoes Toll Bridge v.
Barber v. Bank,
Barbone v. Brent,
Barclay's Estate,
Barclay v. Eainer,
Bardswell v. Bardswell,

Bardwell v Perry.

Baring v. Nash,

v. Shippen,

Barker v. Barker, 900,
V. Bradley,
v. Elkens, .
V. Goodair,
V. MoClure,
V. Kainer, .
V. Eaynor, .
V. Eiehardson,

Barkley's Estate, .

Barlow v. Ocean Ins, Co,

Barnard v. Campbell,
V. Eaton, .
V. Jennison,
V. Lee,

PAGE

1792, 1793
. 506
Vreeland, 1116
. 409
. 1374
. 338, 339
. 668
332, 654, 1863

1633,

403, 418, 423, 427

906, 919

. 963

1636, 1640
. 947

1332, 1373
. 425
. 1909
. 672
. 653
. 1669
327, 654

1704, 1705
. 43
. 1612
. 2011

1078, 1089, 1094,
1124i 1129, 1131, 1132

Barnes i

541,

895
. 168
95, 146
. 146
. 1906
. 1366
. 207
. 972
. 344
. 37
. 1264
. 1665
558, 590
■. 1672
. 539
1710, 1711
408

V. Pope, .
'. McChristie,
V. McCljnton,
V. Mylipgton,
V. Pilgrim,
Barnesty v. Po^weU,
Barnet v. Barnet, .
V. Dougherty,
V. Lynch, .
V. Wilston, .
Barnett v. Spratt, .
Barney v. Douglass,
V. Griffin, .
V. Grover, .
V. Saunders, .
Barnum v. Barnum,
Barnwell v. Springfield,

V. ThreadgiU, 1723, 1727, 1731
Baron v. Porter, .... 1666

Barr v. Hatch 89

V. Keller, . . . .352
v. Tod, . . . 2057, 2058
Barrell V. Joy, . . . . 565
Barrett v. Passumpsic Turnpike

Co., . . . 2047
V. Union Mut. Ins., Co.,

954, 958, 959
Barron v. Miller, .

V. Sollibellos,
Barrow, Ex parte, .
V. Henson,
Barry v. Adams, .
V. Butler,
V. Coombe, .
Ex parte,
Barstow v. Gray, .
Bartlett v. Glascock,
V. Pearson,

. 403

1707, 1725

. 399

. 1984

. 1631

1289, 1290

. . 1030

. 1529

. 1093

. 146iil54

. 1669

TABLE OS AMERICAN CASES.

liii

Barton's Estate,
Barton v. Schaffer,
V. Wiley, .
Bashore v. Whisler,
Basley v. Myrick, .
Bass V. Gilleland, ,
Basse v. Galleger, .
Basset v. Avery, .
Basye v. Ambrose,
Bateman v. Allen, .
V. Porter,
V. Willoe,

Bates V. Bates,

V. Delavan, .
V. Norcross, .
V. Todd,
V. Vary,
Batterman v. Perie,
Battus V. Sellers, .
Baudon v. Beecher,
Bauer v. Roth,
Baugh V. Rowland,
Baugher v. Merryman, 1983,
Baum V. Dubois, .
Bavington v. Clark,
Baxter v. Bush,

V. Lansing,,
V. Wiley, .
Bay V. Coddington,
V. Tallmadge, .
Bayard v. Farmers' and Mech
Bank, .
V. M'Lane,
Bayley v. Greenleaf,
Bayliss y. Williams,

V. Young,
Baylor

PAOB

. 559, 1803
1032, 1035, 1039
. 1335
. 1109
. 2006
. 1147
. 2050
. 178
. 2064
. 1103

1077, 1103
1360, 1361,

1378,

1283,

955,

1380

1284

1711

208

1704

588

947

975

1393

961

2053

1984, 1995

. 1116

. 919

. 1619

2047, 2048

1988

86

1914

anics'

. 1665
. 1640
52, 88, 89
. 1194
. 37

Commonwealth, 1605,

1606, 1607, 1610
Baynard v. Norris, . 65, 180, 221

Baynham v. Guy's Hospital, . . 1123
Beal V. Gordon, .... 38
V. Vallee, .... 1032
V. Warren, .... 204
Beale v. Brown, . . 1344, 1346

Beales v. Ditrey 1344

Beall v. Greenwade, . . . 1014
Bean v. Burbank, .... 1081
V. Simpson, .... 1671
Beans v. Bullitt, .... 1657
Bfearcroft v. Beaver, . . .404
Beard v. Linthicum, . . . 993
Beardsley v. Knight, . . .993
Bearley v. Darcy, .... 1343
Beasley v. Phelps, . . • 1989

Beattie v. Beattie, . . • .188

Beatty v. Smith 103

Beauohamp v. Huntley, . . 1393

Beauford v. Beatty, . . • 1499
Beaumont, V. Fell, . . . .676
Beavan v. Lord Oxford, . . 1667

v.. Monroe, . . . 1333
Beaver v. Beaver, .... 1345
Becht V. Martin, .... 1804

PAGE

Beck V. McGillis, . . 648,668,671

V. Ulrich, . ,. 36,79,82,551

Becker v. Kehr, .... 347

Beckford v. Kemble, . . . 1393

Beckham v. Drake, . 1625, 1628

Beokley v. Newman, . . . 1607

Beckwith v. Cheever, . . . 1079

V. Union Bank, . . 1666

Bedford's Appeal, . . . 707

Beebe v. Bank of New York, . 1672

V.Young, . . . .980

Beebee v. Dowd, . . . .1117

V. Griffin, . . . .897

Beed v. Kemp, .... 206

Beeker v. Elkens, .... 1330

V. Kehr, . . . .349

Beekman v. Frost, . . 32, 34, 35, 45

V.Hudson, . . .509

Beers v. Beers, .... 946

Beeson v. Beeson, . . 2013, 2014

Belchier v. Butler, . . 47, 48, 71, 96

Belden v. Davies 961

Beldin v. Meeker, . . . . 1667

Belknap V. Belknap, . . . 565

Bell's Appeal, . . 1116,1117

BeU V. Bell, . . . . .341

V. Bruen, . . . 947,1028

V. Cunningham, . . . 1368

Estate of, ... 552, 560

V. Evans, . . . . 92, 224

V. Fleming, . . 205, 258, 323

V. Gamble, .... 1354

V. Howard, .... 1022

V. Hughe."!, .... 652

V. King 1804

V. Mayor of New York, 2006,

2007, 2010

V. Morse,

V. Newman,

V. Twilight,

V. Williams, .
Bellage v. Southee,
Bellamie v. Bagsdale,
Bellamy v. Woodson,
Bellas V. Hays, 1136, 1139,

2008

417, 423, 424, 426

180, 181, 192

. 1370

. 1193

. 1135

1.369, 1373

1708,

1715, 1732
. 192

V. Lloyd, .

V. McCarthy, 48, 68, 69, 70,

162, 204

V. Stone, . . . .979
BeUeieau v. Kotts, . . . 1797

Bellow V. Muhell, .... 1360
Bellows, In re, . . . . 2007
V.Stone, . .993,1027,1082
Bellups V. Sears, .... 1386
Belmayer v. Ketts, . . . 1130

Belote V. Morrison, . . . 1990
Belshaw V. Bush, . . . 287,289
Beltzhcever v. Darragh, . 1798, 1800
Bench v. Biles, . . . .350
Bend v. Susquehanna Bridge Co., . 1990
Bendall v. Bendall, . . .588
Benedict v. Gilman, . ■ . . 2011
V. Lynch, 1091, 1097, 1119, 1123

UV TABLE OF AMERICAN CASES.

PAGE

PAGE

Benedict V. Stewart,

. 1641

Bingham v. Bingham, .

1708, 1717

Benford v. Daniels,

. 587

V. Thompson,

. 1991

Bengal v. Walker,

. 799

V. Wentworth,

. 1907

Benham v. Eowe,

. 1985

Binnock v. Whipple,

. 1987

Benjamin v. Hilliard, .

. 1902

Binsse v. Paige,

. 547

Bennet v. Paine, .

1704, 1706

Bird V. Bird,

. 1804

Bennett v. Byrne,

1494, 1496

V. Dennison,

. 39

V. Le Eoy,

. 1392

Estate of.

555, 556

V. Eobinson,

. 509

Birds V. Askey^

. 341

V. Wade, .

. 954, 1261

Birkey v. Vattier, .

. 1638

V. Welch,

1116, 1136

Birnhart v. Greenshields,

188, 189

Benson v. Bruce, .

. 584

Biscoe V. State,

. 594

V. Ela, 393, 394, 404, 407, 422 |

Bishop V. Dean,

. 1329

V. Le Eoy, .

. 382

V. Duncan,

. 1378

V. Eemington,

. 1149

V. Garcia, .

. 1665

Bentinck v. Franklin, .

. 1641

V. Holcomb,

. 1666

Bentley v. Phelps,

. 1998

V. Keed, . 1358,

1722, 1723

V. Whittemore,

. 982

T. Williams,

1989, 1995

Bently v. Dillard, .

1358, 1373

Bispham v. Price, .

. 1710

V. DoUard, .

. 1382

Bissell V. Nooney, .

. 224

Benton v. Burgott,

. 146, 213

Bivins v. Vanzant, .

. 212

V. Le Eoy, .

. 385

Black's Appeal,

. 426

T. Shreeve,

. 1035

Black V. Black,

. 403

Beremkott v. Trephagen

2050, 2056

V. Blakely, .

. 584

Bergen v. Bennett, .

1654, 1985

V. Bush,

. 404

V. Udall, 1192, 1195, 1196,

V. Cord,

1032, 1237

1204,

1205, 1263, 1288

Black Eiver Bank v. Edwards, . 302

Bsrhydt v. Ellis, .

. 1902

V. Page,

306, 1906

Berrien v. M'Lane,

. 1638

Blacket v. Langland,

. 63

V. M'Lean,

1223, 1224

Blackstone v. Blackstone, 647

663,

Berry v. Adams, .

1631, 1632

668, 794, 795

V. Church, .

. 309, 1668

Blackstone Bank v. Hill,

1899,

V. Coombe, .

. 1102

1910, 1911

V. Mutual Insurance Co., . 204

Blackwell v. Child,

. 667

V. Van Winkle,

. 1153

Blackwilder v. Loveless,

. 999

V. Wisdom, .

2060, 2063

Blades v. Blades, .

. 214

Berryhill's Appeal,

. 551, 552

Blagden v. Bradbear,

. 1029

Berthold v. Berthold,

. 280, 291

Blair v. Bass,

. 1667

V. Goldsmith,

. 400

V. M'Donnell,

. 979

Besley v. Lawrence,

. 262, 314, 318

V. Owles,

73, 168

Bessell V. Beckworth,

. 1354

V.Ward, . . 29

3, 310, 311

Best V. Stow, . 994

998, 1017, 1146

Blaisdell v. Stevens,

. 154

Bethea v. M'CoU, .

. 1500

Blake v. Bigelow, .

. 202

Bethlehem v. Anniss,

1630, 1993

V. Blake,

. 668

Bethune v. Dozier,

. 1908

V. Buchanan,

. 1669

V. Kennedy,

. 335, 651

V. Graham, .

. 208, 209

Betiz V. Hubner,

. 2008

V. Heyward,

. 44, 201

Bickley v. Newland,

. 1606

V. Peck,

. 1733

Bicknell v. Field, 1371,

1375, 1400, 1401

V. Pegram, . 565, 5b

6, 567, 568

Biddle V. Bayard, .

. . . 55

Blakely, Succession of, .

. 592, 593

V. Carraway,

337, 352, 353

Blakesley v. Blakesley, 971,

1011, 1014

Bidden v. De Witt,

. 272

Blanchard v. Cooledge, .

1409, 1411

Bierne v. Mann, .

1372, 1384

V. Dedham Gas C

0., . 1664

Bigelow, In re.

. 322

V. Nestle,

1242, 1282

Biggins V. Brockman,

. 1381

V. Selden,

. 1659

Biggleston v. Grubb,

. 794, 815

Blaney v. Bearce,

1987, 2006

Biglow V. Topliflf, .

. 1988

V. Blaney,

. 330

Billinghurst v. Walker,

. 343,345

Blank v. German, .

. 344

Billings V. Billings,

. 946

Blatchley v. Osborn, 146, 14

3, 149

V. O'Brien,

. 1630

155, 162

V. Sprague,

. 280

Blauvelt v. Ackerman, .

. 570, 1805

Billingslea v. Henry,

. 574

Bleakley's Appeal,

. 999

Billington v. Wagoner,

. 1913

In re, .

. 1638

V. Welsh,

181

Blight V. Banks, .

33, 65, 73

TABLE OF AMERICAN CASES.

Iv

PAGE

Blight V. Bond 73

Blin V. Pierce, 1642, 1645, 1647, 1668

1729
963
977
1009
849
206
1990
1986
93, 215, 216
. 184
. 578
. 1671
652, 654
. 1909
. 1671
. 1102
1638, 1639
. 585
. 1023
1125, 2070
. 1801
155, 186, 190, 223
74,79

1104,

Bliss V. Swartz,

V. Thompson,
Blodget V. Hildreth,
Blodgett v. Hobart,
Blois V. Blois,
Blood V. Blood,
Bloodgett V. Bloodgett,
Bloodgood V. Zailly,
Bloom V. Noggle, .
Bloomer V. Henderson,
Blount V. Hawkins,
Blunt V. Boyd,

V. Hopkins,
Board of Police v. Covington,
Boardman v. Payne,
V. Spooner,
V. Thompson,
Bobo V. Poole,
Bobsford v. Burr, .
Bodlue V. Glading, 1077,
Bodley V. McKipney,
Boggs V. Varner, .

V. Warner, .
Bohlen v. Cleveland,
Estate of, .
Boling V. Ewing, .
BoUin V. Connelly,
Boiling V. Carter, .
Bollo V. Navarro, .
Bolton V. Butler, .

V. Johns,

V. Lunday, .
Bomier v. Caldwell,
Bona V. Davant,
Bonafois v. Eeylat,
Bond, Ex parte,

V. Lockwood,

V. Turner, .
Boney v. Hollingsworth
Bonner v. Ware, .
Bonney v. Bonney,
V. Morrell,
Bonsall's Appeal, .
Book V. Mclntyre,
Boone v. Barnes, .

V. Chilles, 31, 32, 33, 36, 37,

, 46, 65, 67. 72, 100, 101
Booten v. Schaffer, 1128,' 1136,

1139, 1142
Booth v. Blundell,

v. Lycester,

V. Smith,

V. Stamper, .
Boragh v. Archer, .
Borland v. Marshall,
Boschert v. Bixon,
V. Brown,
Bosley v. McKim,
Bossard v. White, .
Bostick V. Elliott, .
Boston and Maine B. E. v. Bart-
lett, . . . 1078,1079,1080

1213,
306,

1666

1804
149
195
196
903
425
106

1906

1112
585

2050
419
597
578

1231
190

1908
946

1504
408
75, 83, 84

335
1393
1500
1368

916
1632
1908
1915
1707

205
1797

PAGE

Boston Water Power Co. v. Gray,

1093, 1388

Bostwick, In re, . . 1501, 1503

Bothea v. McCall, . . . 587, 588

Boucher v. Van Buskirk, 1090, 1094

Boughton V. Bank of Orleans, . 1915

V. Boughton, . . . 1258

V. Phelps, . . . 1338

Bourland v. Peoria, . . . 1156

Bournan V.Cabot, . . 1643,1671

Bouser v. Cox, . . . .419

Boush V. Mosely, . ' . . . 1670

Bowditch Vi Green, . . .278

Bowen v. Bowen, . . 2044, 2045

V. Evans, .... 71

V. Thrall, .

V. Vickers, .

V. Waters, .

Bower v. Tiermann,

Bowers v. Bell,

V. Tallmadge,
Bowes V. Seegerj .
Bowie V. Berry,
V. Brahe,
V. Stonestreet,
Bowling V. Cobb, .
Bowman v. Bittenbender,
Bowser v. Cramer,
Boyce v. Grundy, .

V. McCullough,
V. Waller, .
V. Williams,
Boyd V. Beck,

V. Boyd, 577,- 1193,
1195, 1196, 1210,
1226, 1227, 1265,
1274, 1275, 1276,
1284, 1285, 1286,
V. Dunlap, .
V. Ely, :_ .
V. Hawkins, .
V. McLean, .
V. Oglesby, .
V. Smith,
Boyer v. Cockerill,
Boyle V. Boyle,
Boylen v. Leonard,
Boynton v. Hazleboom,
V. Hubbard,
V. Phelps,
V. Eees, .
Boys V. Williams, .
Boyse v. Eossborough,
Brace v. Marlborough, 31, 47,
Bracken v. Bently,
V. Miller,
Bracket v. Blake, .
Brackett v. Winslow,
Bradbury v. White,
Bradford v. Boudinot,
V. Forbes,
V. Union Bank of Ten-
nessee, 979, 980, 988,

1026, 1028

. 1343
. 1711
. 1017
. 1910
. 946
. 1391
. 1795
. 1108
. 1631
. 1155
. 595
. 993
. 1024

1361, 1372
1021, 1023, 1024
. 42
. 180
. 33

1194,

1211,

1267,

1283,

1795, 1797
1260
1284
538, 579, 1263
. 992
. 575
. 1274
. 195
. 568
. 1629

1017, 1018
512,963
. 1906
33,40
.. 675
. 1269

, 53, 90, 91
. 699
33, 170

1628, 1630
. 290
. 999
. 552
. 323

m TABLE OF AMBEICAN CASES.

PAGE

PAGE

Bradley v. Angeel,

1346, 1347

Brinton's Estate, . 552

, 555, 706, 707

V. George, ,

. 293

Brinton v.Seevres,

. 206

V. Eichardson, .

. 1369

Brittain's Appeal, 38,. 98,

214, 215

V. Root, .

. 55, 1672

223, 224, 226

Brady's Appeal, .

999, 1285, 1286

Brittain v. Quill, . 1338, 1345, 1347

Brady v. Cubitt, .

. 809

Britten v. Darker, .

. 1908

V. Dilley, .

. 572

Broad v. Broad,

. 1941

V. Miller, .

. 573

Broadway Bank v. Elrath, . . 1664

V. Parker, .

. 993

Broadwell v. Broadwell,

335, 988,

Bragg V. Massie, .

. 2006

1734, 2051

V. Paulk, .

. 72

Brook V. Barnes, 1195, 1216, 1230

V. Shain,

1901, 1907

V. Headen, .

. 208

Brainard v. Cowdrey, .

. 647, 652

V. Heddy, .

. 1112

Brainerd v. Brainerd, .

. 1988

Brocket v. Blake, .

. 1630

Braman v. Howk, .

. 1905

Brockfleld x. Williams, .

. 911

Brampton v. Banker,

. 63

Brockway v. Clark,

2045, 2055

Branch Bank of Mobile

V. James,

Broderick v. Smith,

. 2052

1906, 1917

Brogden v. Walker, 1215, 1233,

Branch Bank v. Steele, .

. 168

1236, 1238, 1239

Brandon v. Green,

1330, 1373

Bromagham v. Clapp, .

. 897

V. Medley,,

. 1735

Bromley v. Branton,

. 1653

Brant's Will, .

. 324, 327

V. HoUand, 1361, 1363,

Brantley v. West, .

. 1989

1365, 1627, 1654

Brashear v. West, .

1671, 1672

Brook V. Berry, 1035, 1192, 1213,

Brashier v. Gratz, 1114,

1118, 1126,

1216, 1227, 1228

1129, 1135, 1139

V. Spooner, .

. 1646

Brazier v. Clark, .

1797, 1800

Brookbank v. Brookbank, . . 1258

Breckenridge v. Brooks,

. 594

Brooke v. Garrod, .

1129, 1130

V. Klincke

nbeard, . 1143

V. Mostyn, .

1732, 1735

V. Waters,

. 1704

Brooks V. Dent,

. 339

Breokinbridge v. Hull,

. 1988

v.-GiUies, .

. 1415

Bredin v. Kingland,

. 551

V. Hatch, . 1642, 1649, 1654

Breed v. Pratt,

. 1276

V. Martin, .

. 1195

Brend v. Brend,

. 1941

V. Wheelock, 996, 999, 1021, 1025

'. 5rennan's Estate, .

. 551

V. Whitson,

. 1368

'. Jrewer v. Connecticut,

. 1119

V. Wright, .

. 1915

V. Dew,

1626, 1627

Broom v. Batchelor,

. 1030

V. Franklin Mill

s, . . 306

Brotherson v. Consalus,

. 1638

V. Hibberd,

. 1110

Brotherton v. Livingston, . 204, 205

Brewster v. Edgerly,

2052, 2060, 2063

Broughton v. Coffer, 946

, 963, 964,

V. Hewitt,

. 409

1014, 1020

Brice T. Brice, 182, 1

206, 1208,

V. Duval,

. 1900

1210, 1235

Brower v. Herbert,

. 1141

V. Stokes, .

1795, 1802

Brown's Appeal, .

400, 1363

Brickner v. Lawrence,

. 1631

Brown v. Anderson,

. 221

Bridge v. McCuUough,

. 418

V. Brown, ,

849, 979

Bridgeman v. Green,

1262, 1289

V. Budd, .

32, 205

Bridges v. McKeenan,

. 1409

V. CliflFord, .

. 1986

Briggs V. Dorr,

1624, 1669

V. Cram,

. 2006

V. French, .

. 1398

V. Dawson, .

823, 848

V. Holcombe,

. 584

V. Dean,

. 207

V. Morris, .

. 1990

V. Derloch, .

. 1492

V. Planters' Ban

k, 259,262,317

V. Desmond,

. 1823

V. Withey, .

. 1733

V. Dewey, .

990,

1992, 1995

Brigham v. Brigham,

. 986

V. Eastman,

. 189

V. Eogers,

. 945

V. Edsall, .

. 1414

Bright V. Eynon, .

. 1379

V. Green,

. 1388

V. Nagle,

. 965

V. Haff, .

. 1117

V. Rowland,

. 2044

V. Harris, .

. 1138

Brights' Trusts, .

. 158

V. Haskins,

. 1412

Briley v. Sugg,

. 278

V. Home, .

. 1358

Brind v. Hampshire,

. 1657

V. Hutchison,

. 1281

Brinely v. Whiting,

. 1632

V. James, . 32

2, 333, 336, 654

Brinkerhoff v. Marvin,

. 259, 319

V. Kelsey, .

. 561

TABLE OP AMERICAN CASES.

Ivii

Brown v. Lampton,
v. Lunt,

V. Lutheran Church,
V. Lynch, "
T. M'Gaffney,
V. Maulsly,
V. Middleton,
V. Nickle, .
V. Peabody,
V. Peck,
V. Pierce, .
V. Post,
V. Eiggins,
V. Simmons, 190,

V. Simpson,

V. Sloan,

V. Swann, 1358,

V. Torrey, .

V. Tuthall, .

V. Walker,

V. Welsh, .

V. WUmerding,

V. Wood,

V. Wright, .
Browne v. Molliston,
V. Preston,
V. Eogers,
Brownell v. Brownell,
Browscale v. Bosworth,
Brubaker v. Okeson,
Bruce v. Edwards,

V. Strickland,
Bruen v. Marquand,
Brumfield v. Palmer,
Brundell v. Boughton,
Bruner's Appeal, .
Brunswick E. E. C!o. v.
Brush V. Ware,
Bruton v. Eutland,
Bryan v. Cowart, .

V. Foy,

V. Eead,
Bryant v. Crosby,

V. Dana,

V. Hunter,

V. Proctor,
■ V. Puckett,

V. Eudesell,
Buchan v. Sumner,
Buchanan v. Atwell,

V. Lorman,
Buck V. Blanchard,
Y. Coldbath,
V. Holloway,
V. Smith,
Buckalew v. Smith,
Buckhouse v. Crosby,
Buckingham v. Hanna,
BuckeU V. Mitchell,
Buckley v. Buckley,
Buckmaster v. Grundy,

V. Thompson,
Buckner v. Smith,

PAGE

. 1001

. 206

. 910

. 1012

1246, 1984

. 2052

. 1281

2002, 2003, 2005

. 61

. 504, 505, 511

. 90, 1247

. 1227

. 1901

, 293, 295,

297, 299, 305, 308

204, 206

. 1703

1362, 1373, 1374

1266, 1281

. 93

. 593

75, 101, 104

. 62

. 67

1802, 1804

1272, 1273, 1278

. 574

. 572

.. 895, 897

. 1670

. 1911

. 1905

. 1804

. 1910

. 1116

. 350

262, 270, 271

Hughes, 1904

. 190

. 901

. 1991

. 1729

. 1143

. 2006

. 1668

827, 848

1728, 1733

. 594

. 1914

89, 402

. 1143

. 1143

291

1402, 1403

. 182

1103, 1104

1898, 1905

. 1092

. 210

. 1022

347, 348, 352

1333, 1373

1028, 1091

. 1673

Buckworth v. Buckworth,
Budd V. Shinn,
Buel V. Miller,
BueU V. Buckingham, .
Buffalo V. Kortwright,
Buffalow V. Buffalow,
Butfington v. Gerrish,
Bugdon V. Bignold,
Bulkley v. Laudon
Bull V. AUen
V. Bull,

PAGE

1505, 1506

. 288

. 1022

1228, 1229

1661, 1673

1222, 1235, 1236

43, 84

. 164

. 1669

1900, 1905, 1917, 1921

. 382, 383

Bullitt V. Methodist Church, 396,

397 399
BuUock V. Adams, . 1123, 1124, 1136

Bulon V. Scott 1366

Bumberger v. Clippinger, . . 1118
BumpasB v. Eeams, . . . 1357
Bumpus V. Platner, ... 33
Bunting v. Eicks, . . . 154, 159
Bunyard v. M'Elroy, . . . 1280
Burchv. Burch, .... 1238
Burd V. Pratt, .... 1213
Burden v. Thayer, . . . 2007

Burdett v. Clay 1667

Burdsall v. EusseU, . . .161
Burge V. Koop, .... 1729
Burger v. Eice, .... 1630
Burgess v. Lovengood, . . . 1382
V. Smith, .... 1400
Burgher v. Duphom, . . . 1901
Burhans v. Burhans, . 895, 897, 898
Burk's Appeal, .... 1150
Burk V. Chrisman, . . 303, 306
Burke, Lire, 1500

V. Burke, .

V. Cruzer, .

T. Louisville E. E. Co.
Burkhalter v. Ector,
Burlace v. Cook,
Burlingame v. Burlingame,
Burn V. Carvalho, .

Bume V. Lester, .
Bumeg V. Spear, .
Burnett v. Lester,
V. Pratt,
V. Willston,
Bumette v. Paine,
Burney, Ex parte,

V. Little,
Bumham v. Chandler,
v. Dunn,
V. Floury,
Bumson v. King, .
Burr V. Boyer,

V. M'Ewen, .
V. Todd,
Burrell v. BurreU,
Burrill Y. Shell, .
Burriss v. Eouelhac,
Burrough v. Martin,
Burrows v. Alter, .
Burt V. Burt, .
T. Caferty,
V.

1901,
2057

. 1633
. 1918
,, . 1489
. 221
. 64
. 1491
1645, 1647
. 697
587
698, 702, 707
950, 1238
. 71
. 1719
. 585
. 206
. 205
. 1710
. 1336
. 1860
1902, 1903
552, 555
2058, 2068
910
1803
189
163
961
1794
224
S9, 182

ivill TABLE OF AMERICAN CASES.

PAGE

PAQE

Burt V. Herron,

1859, 1860, 1864

Calhoun v. Hays, .

. 1725

Burtch V. Hogge, .

. 1032

Calkins v. Lockwood,

1612, 1613

Burthoiise v. Crosly,

1022, 1023

Call V. Ewing,

. 1792

Burtis V. Dodge, .

. 544, 548

Callaghan v. Callaghan,

. 1034

Bnrton v. Hynson,

. 1363

V. Hall, . . 552, 561, 562

V. Wiley, .

. 1382

Callender v. Keystone Co.,

. 552

Burtus V. Tisdeil, .

. 401, 403

V. Marsh,

. 265

Busby Y. Conoway,

. 1719

Callisher v. Bischoffsheim,

. 1714

Bush V. Bush, . 6.

5, 73, 1521, 1523

Callow V. Lawrence,

. 287

V. Golden, . ] 81, 186, 226, 227

Calloway v. M'Elroy, .

. 1361

V. Lathrop, .

55, 57, 1672

V. Witherspoon,

. 1037

V. M'Comb, .

. 571, 572

Calmady v. Calmady,

. 919

Bushell V. Bushell,

. 202

Calverly v. Williams, . 979

991, 1017

Bushnell v. Harford,

. 1354

Calvert v. Bradley,

. 2006

Butcher v. Stapely,

. 152

V. Gordon, 1078,

1089, 1093

V. Yocum,

. 148

London Dock, .

. 1901

Butler V. Birkey, .

. 280

Cambridge "Valley Bank v. Delano,

V. Durham,

. 990

161, 163

V. Haskell, 1216,

1228, 1234,

Camden & Amboy E. E. Co. v.

1237,

1238, 1244, 1246

Stewart,

. 1350

V. Jennings,

. 582

Cameron v. Cameron,

. 598

V. Maury, .

. 224

V. Justices,

. 1792

V. O'Hear, .

. 1118

Cammack v. Johnson, .

400, 410

V. Page,

. 2007

Camp V. Grant, . 391, 418, 423, 424

V. Eailroad,

. 1626

Campbell's Appeal, 44, 54,

1673, 1727

V. Stevens, . 1

17, 180, 185, 222

Campbell v. Booth,

. 1910

V. Triplett,

. 1704

V. Brackenridge,

47, 71

Butlin V. Barry,

. 1290

V. Day, .

1665, 1671

Butterfield v. Ashley,

. 1507

X. Dearborn, 1983,

1989, 1991

Button V. Drenkler,

. 1907

V. M'Clenachan,

967, 968

Buttrick v. Holden,

. 158

V. Miller,

. 1804

Butwiok V. Franklin,

. 1632

V. Mullett, .

. 398

Bydon v. Morong, .

. 568

V. Eoach,

. 189

Byers v. Donley,. .

. 895

V. Shaw,

. 1087

V. Surget,

. 1035

V. Shrum,

344, 1117

Byrne v. Byrne, . 8

20, 821, 822, 824

V. Spencer, 1032,

1038, 1244

V. Godfrey,

. 831

Can V. Can, .

1709, 1715

V. Love, .

1489, 1510

Canal Bank v. Bank of Albai

ly, . 1729

V. Van Hoesen,

1487, 1488

Canedy v. Marcy, . 985,

1001, 1007

Byxbie v. Wood, .

. 1626

Canfield v. Bostwick, 348, 34

9, 568, 569

v. Monger,

. 1645

Cabanness v. Matthew^

. 1337

Cannon v. Norton, .

. 104

Cabe V. Ballerd, .

. 2005

Canoy v. Troutman,

. 961

Cabeen v. Breckenride,

. 180

Canterbury Aqueduct Co. v.

F,ns-

Cabell V. Cabell. .

. 595

worth,

. 999

Cabot V. Hoskins, .

985, 1719, 1721

Cantey v. Blair,

. 1386

Cadbury v. Duval, .

. . ! 383

Canton Co. v. Eailroad Co.,

. 1028

Cadwalader's Appeal,

. 1137

Capehart v. Mhoon,

. 1414

Cady V. Potter,

. 989

Capel V. Butler, 309, 313, 314

1336, 1901

V. Westcott, .

. 710

v.M'MiEan,

. 1488

Cage V. Cassiday, .

1396, 1400

Carberry v. Tannehill, .

. 1212

Cahill V. Lawrence,

. 2068

Cardwell v. Farrell,

. 1368

Cairns v. Chaubert, 54

4, 547, 699, 702

Carl V. Wonder,

. 562

Calder v. Chapman, 55

96, 98,

Carlyon v. Lanning,

1990, 2005

205, 210

, 211, 212, 1610

Carmichael v. Beck, . .

. 61

Caldwell v. Ball, .

. 1663

Carpenter v. Catlin,

. 2049

V. Carrington,

. 1823

V. Devon,

. 1901

V. Hartupee,

1644, 1647

V. Groff,

. 1731

V. Head, .

. 214

V. Keating, .

. 1391

V. Eichard,

. 821

V. King, 1913,

1915, 1917

V. Walters,

. 1371

V. Koons,

. 304

Calhoun v. Cozzeng,

. 1409

V. Lockhart, .

2051, 2063

V. Ferguson,

. 697, 703,

V. Longan,

53, 56, 58

710, 711, 712

V. Snelling, .

. 1992

TABLE

OF

AMERICAN CASES.

lix

Carpenter v. Westcott, .

PAGE

. 2044

PAGE

Central Bank v. Copeland, 1248, 1733

V. Whiteman,

. 1489

Chaires v. Brady, .... 1990

Carr v. Acraman, .

. 1617

Chamberlain v. Begley, 2052, 2057, 2058

V. Callaghan, .

. 99, 198

V. M'Clurg, . . 1703

v. Carr, . . 1522,

1986, 2007

V. Thompson, 980, 993,

V. Duval,

. 1029

1009

V. Howard, . 1899,

1905, 1914

V. Williamson, . 1625

v. Passaic Land Co.,

. 1030

Chambers v. Livermore, . . 999

V. Eising,

1993, 1995

V. Michin,

. 1795

V. Waugh, .

. 1668

Champion v. Brown,

. 953, 1623

Carrigan v. Noble,

. 1908

V. Miller,

. 1333

Carrington v. Brent,

. 1823

Champlin v. Layton, . 145, 987, 988

V. Goddin, .

. 1632

Y. Parrish,

. 1102

V. Holabird,

. 1368

V. Williams, .

. 291

V. Manning, .

. 384

Chandler v. Ferris,

. 1274

Carroll v. Johnston,

37, 47, 48

Ohandron v. Magee,

. 195

V. Moore, .

. 587

Chanland v. Boerum,

. 2006

V. Norton, .

. 1273

Cliapin V. Marvin,

. 506

Carron Iron Co. v. Maclaren

. 1398

Chaplin v. Holmes,

. 895

Caraou V. Carson, .

1857, 1859

Chapman v. Beardsley,

. 303

Carter v. Allen,

32 99,

V. Coats,

. 95

V. Balfour, .

. 347

V. Emery,

. 59

V. Bank,

. 192, 195

V. Hamilton, .

. 260

V. Black, .

. 287

V. Mad Eiver E. E.

. 1155

V. Carter, .

. 34, 1987

V. Salt, .

. 799

V. Champion,

. 97, 206

V. Shattuck, . 1642, 1668

V. Cutting, .

. 576

V. Weimer, . 1612, 1618

V. Hamilton,

. 944, 945

V. West, 195, 198, 293,

V. Jones,

1899, 1907

297, 299, 305

V. Leeper, .

. 104

V. White, . . . 1653

V. Eolland, .

.

1501

Charlton V. Wright, . . .388

V. Taylor, .

,

904

Chase v.AUen, .... 2059

V. United States Ins.

Co.,

1670

V. Chase, .... 1859

V. Williams,

1996

V. Lockerman, 255, 257, 324,

Carteret v. Carteret,

665

328, 513, 648, 649, 673

Cartledge v. Cutliff,

586

V. Peck, . . 1394,2007

Cartwright v. Pultney, .

.' 895, 904

V. Plummer, . . .1865

Caruthers v. Dean,

1899, 1900

V. Woodbury, 293, 297, 298, 305

V. Hall, . . 303, 308, 311

Chateau v. Jones, . . .206

Carvalho v. Bum, .

. 1647

Chaworth v. Beech, . . 653, 666

Carver v. Bolles, .

. 790

Cheddick v. Marsh, . 2063, 2067

Gary v. White,

37, 83

Cheesebrough v. Millard, 260, 279,

Casamajor v. Strode,

. 1145

306, 308, 311

Casborne v. Barham,

. 1192

Chegary, Ex parte, . . .1529

Case V. Boughton,

. 963

Chemy v. Bowser, . . . .1984

V. Case, 1233, 1239,

1251,

Cherry v. Jarratt, . . . .590

1285, 1286

V. Monroe, . 280, 281, 282

Casey v. Holmes, .

. 999

Chester v. Kingston, . . .1989

Cason V. Eound,

. 101

Chesterfield v. Jansen, . 1237, 1372

Cassel, Ex parte, .

. 538, 550

Chesterman v. Gardner, . . 182

Cassey's Estate,

. 551

Chestnut Hill Eeservoir Go. v.

Cassiday v. Jackson,

1632, 1641

Chase, 952

Gassinger v. Welsh,

. 1632

Chetwood v. Brittan, 979, 1412, 1414

Casde, Case of Elizabeth,

. 502

Chew V. Barnet, . . 47, 67, 1610

Gastleman v. Veitch,

. 906

V. Gillespie, . . .971, 979

Caswell V. Keith, .

. 1990

Chicago Dock Co. v. Foster, . . 43

Cathcart's Appeal,

. 1902

Chicago Mutual Insurance Company

Cathcart v. Bobinson, 988, 999, 1032, 1035

v. Stanford, .... 1653

Cavendish v. Fleming, .

. 576

Chichester v. Mason, . . .1909

V. Mercer, .

. 1502

Chick V. Willetts, .... 2008

Cavode v. M'Kelvey, 1703,

1708, 1737

Chickasaw Co. v. Pitcher, 306,

Gawsey v. Driver, .

. 1631

1906, 1915, 1916

Cecil V. Cecil,

. 808, 809

Chiokering v. Hatch, . . . 1989

Center v. Bank, . 39,

93, 9

J, 105

GhildeiB v. Childers,

. 977

Ix

TABLE OF AMERICAN CASES.

' _ PAGK

Childerston v. Hammond, . . 1339
Ofailton V. Bobbins, . . . 1908
Chinowith v. Williamson, . .104
Chorpenning's Appeal^ . . . 1213
Chremont v. Tasburgh, . . 1018

Chrisman v. Miller, . . . 1125
Christ V. Diffenbach, . 966, 968, 993
Christian v. Ellis, . . . 393, 408
Ex parte, . . . 1375
Christie v. Bishop, ... 82

Christman t. Cabell, 1117, 1119, 1142
Christmas v. Griswold, . 1644, 1645
V. Mitchell, . . .189
V. KusseU, . . . 1644
Christner v. Brown, . . . 1912
Christy, Ex parte, . . . 1406-

V. Home 1906

Church V. Church, . . 33, 34

V. Cole, .... 1983

V. Wachter, . . .348

Churcher v. Guernsey, . . . 146

Churchill v. Morse, ... 92

Chustner v. Brown, . . . 1906

Chute V. Pattee, .... 1906

Cicotte V. Gagnier, ... 58

Cincinnati E. E. v. Pearce, . . 973

City Bank v. Bernard, . . . 171

V. Smith, . . . 2047

City Council v. Page, 33, 147, 195, 222

City of London v. Nash, . . 1038

of Maquoketa v. Willey, . 1901

of Providence v. St. John's

Lodge, .... 1031

aadfelter v. Cox, .... 1666

Claggett V. Salmon, . . . 1910

Claghorn v. Bank, . . 418, 421

Clairborne v. Bank, . 1909, 1911

Claphan v. White, .... 1413

Clapp V. Bromaghan, . . . 898

V. Ely, .... 1333

V. Fullerton, 1266, 1267,

1273, 1276, 1278

V. Tyrrell, . . . .108

Claremont Bank v. Wood, . . 1917

Clarendon v. Hornby,
Clark's Appeal,
Clark V. Blount, .
V. Bogardus,
V. Bosworth,
V. Brown,
V. Clark,
V. Coit,
v. Condit, .
V. Depew, .
Estate of,
V. Fisher,
V. Flint,
V. Fuller,
V. Garfield,

915

' 1794, 1796

. 579

826, 829, 832

39

'. 651, 672

1791, 1793

. 1338

1984, 1993

. 106, 108

. 559

1265, 1281, 1282, 1283

62, 84, 86, 87, 88

. 169

. 701,1802

V. Grant, 998, 1000, 1007, 1012

V. Henry, 1984, 1986, 1992, 1997

V. Hill, .... 1904

V. Jones, . . 2070, 2071

V. Lyon, . . 1133, 1993

Clark V. Mauran, .
V. Oakley, .
V. Partridge, i
Y. Piatt, ■ .
V. Pullen, .
V. Eeiras, 1040,
V. Eemisdyk,
V. Eussell, .
V. Seirer,
V. Sewell,
V. Smith,
V. Tappin, .
V. Taylor, .
V. Thompson,
V. Van Surlay,
Clarke v. Burdick,
V. Bargoyne,
V. Calcot, .
T. Davis,
V. Brake, .
V. Hawkins,
V. Henshaw,
V. Jenkins,
V. Jetton, .
V. Ormonde,

FAaB

. lU46
. 104
970, 971, 993
. 568
. 314

1146, 1147, 1149
103, 104
. 1079

1145, 1149, 1150
■ . 790
. 2010
. 946
. 1335
. 1671
. 1505
. 707
. 804
. 1623
. 1273

2045, 2047, 2048

. 1347

322, 323, 340

. 1792

. 797

. 700, 1393

V. Eochester E. E. Co., !

1038

V. Sawyer, . . 1282, 1283

V. White, . . . .104

Clarkson v. Morgan, . . 198, 199

Clary V. Marshall, . . . .199

Clason v. Bailey, . - . 1093, 1097

V. Clason, .... 916

Y. Morris, ._ . . 103, 287

Clavering v. Clavering, . . . 1258

Clay v. Fry, 1361

Claycomb v. Claycomb, . . . 577

Clayton v. Ashdown, . . . 1101

v. Fawcett, . . . 1654

Y. Freed, . . . 982, 985

V. Lord Nugent, . 676, 816

Clearwater v. Keinber, . . . 1240

Cleary v. Babcoek, . . . 980

Cleland V. Hedley, . . .1388

Clement v. Cash, 2054, 2058, 2061,

2063, 2064
V. Clement, . . . 1990

v. Eich 99

dements v. Eeid 1082

Clemson v. Davidson, 61, 1642, 1648, 1661
Olendenning v. Clymer, 785, 795,

796, 797, 812

331, 347, 352

. 1823

. 707

327

'l036, 1037

. 1517

998, 1006, 1007

. 547

: 323, 330

. 1492

1908, 1910,1921

103?, 1035

Clery's Appeal,
Cleveland v. Burrill,
Clevenstine's Appeal,
Clifton V. Burt,

V. Davis, .

In re, .
Clinan v. Cooke, 996,
Clinch V. Ecford, .
Cliuefelter v. Ayres,
Clinton v. Eowland,
Clippinger v. Creps,
ClitheraU v. Ogilvie,

TABLE 01 AMERICAN GASES.

Ixi

FAOE

Clopper V. Union Bank of Mary-
land, . . . . . . 1917

Clopton V. Martin, . . 983, 993
Cloud V. Clickerbeard, . . .821
Qoudas V. Adams, . . . 388

Clough V. Bond 1799

Clowes V. Dickinson, 292, 294, 303, 314

V. Higginson, . 1007, 1027

Clum V. Brewer, .... 1414

Clute V. Robinson, .... 56

Clyde V. Simpson, .... 347

Coates' Appeal, . . 1859, 1864

V. Gerlach, . . . 1154

Cobb V. Taylor, .... 1804

V. Wallace, . . . .946

Cochran v. Collins, . . . 1628

V. Green, .... 1670

V. Van Surlay, . . 1505

Cock V. Eavie, .... 1345

Cockell V. Taylor, ... 53, 55

Cockey v. Milne, . . . .206

Cocking V. Pratt, . . 1708, 1716

Coekrill v. McCurdy, . . . 1906

Coddiugton v. Paleologo, 1105, 1107

Codman v. Pinkman, . . . 915

Codwan v. Harmer, . . . 1018

Codwise v. Gekton, . 382, 389, 390

Coffee V. Euffin, . . 594, 1228, 1229

Coffin V. Coffin, .... 1290

V. Bay, . . 93, 97, 225

Coffing V. Taylor, . . . 982, 1667

Cogan V. Stewart, .... 1723

Cogdell V. Widow, . . .655

Coger V. Magee, . . 952, 968, 988

Coggill V. Hartford and New Haven

K. E. Co., 61

Coggshall V. American Ins. Co., . 1708
Cogshell's Executors, In re, . . 649
Cohen v. Commissioners of the

Sinking Fund, . . . 321, 1904

Colah, In re, . . . . . 540

Colby V. Kinniston, . . . 221

Colcock V. Butler, .... 1139

Coldecott V. Coldecott, . . .717

Cole V. Litfield, .... 1859

V. Turner, .... 350

Coleman's Appeal, . . . 1825

Coleman v. Barklew, . . . 180

V. Coleman, 665, 666, 908, 912

V. Cooke, . 36, 43, 90

V. Grubb, . . .908

V. Eobertson, . . . 1276

V. Upcott, . . . 1092

Coles V. Boune, .... 1102

V. Trecothic, 1029, 1034, 1229

College V. Willingham, 581, 683, 585

Collier v. Munn, .... 547

V. Slaughter, . . 505, 509

Collins V. Baumgardner, . . 971

V. Blautern, . S61, 966, 1861

V. Butler, . . . . 1329

V. Carlisle, .... 1865

V. Collins, . . . .699

V. Heath, .... 42

FAQB

Collins V. Hood, . . . 401, 403

V. Hoxie, .... 548

V. Jones, .... 13'77

v. Eoberts, .... 578

V. Tillon, . . . 946, 1012

V. Westbury, . 1245, 1249

CoUis V. Bobbins, . . 330

CoUoway v. Jones, . . . 1415

Colomer v. Morgan, . . . 205

Colsom V. Maztin, .... 579

Colaon V. Thompson, . . . 1029

Colt V. Come, . . . .948

V. Selden, . . 1087, 1088

Colwell V. Lawrence, . 2059, 2061

V. Woods, 1991, 1998, 2002, 2003

Colyer v. Finch, . 31, 45, 54, 55

Comegys v. Booth, 1908, 1910, 1921

V. Vasse, . . . 1624

Commercial Bank v. French, . 1899

V. Kartright, . 1664

V. Western Ee-

serve Bank, . 293
V. Wnkins, 395, 411
Commonwealth v. Addicks, 1490,

1513, 1522, 1523

V. Anderson, . 1489

V. Briggs, 1506,

1515, 1522

V. Downs, . . 1403

V. Eagle Ins. Co., . 1793

V. Fee, . . . 1489

V. Fox, . . . 1403

V. Grant, . . 1403

V.Haas, 1901, 1902

Y. Hamilton, 1489, 1490

V. Hammond, . 1511

V. M'Alister, 1794, 1805

V. MUler, 1901,

1902, 1915

V. Murray, . . 1489

V. Nutt, . . 1517

V. Olmstead, . . 1522

V. Phcenix Bank, . 1339

V. Ehodes, . . 205

V. Shelby, 327, 328, 331

v.Stauffer,501,502,

506, 508

v.Watmough, . 1661

Compton V. Barnes, . . .573

V. Jones, . . . 1671

Comstock V. Comstock, 1206, 1227, 1235

V. Hadlyme, . . .568

Conantv. Jackson, 1192, 1215, 1237,

1238, 1242, 1244, 1276

V. Seneca City Bank, . .1661

V. Smith, . . . .909

Conaid's Appeal, .
Condict V. King, .

. 560

. 708

Condit V. Blackwell,

1227, 1228

Congreve v. Evetts,
Cornell V. Pierson,

1616, 1618

. 2005

Conklin v. Conklin,

. 916, 917

Connaday v. Shepard,

. 1645

Connecticut v. Bradish, 33, 40, 41, 60, 212

Ixii

TABLE OP AMERICAN CASES.

PAGE

Connell v. Merrick, . . . 1673

Conner v. Tuck, .... 103

Conover v. Cutting, . . . 1624

V. Mayor of New York, . 1405

V. Van Mater, ... 37

V. Warden, . . . 1002

Conrad v. Atlantic Ins. Co., 57, 84,

90, 1663, 2006
V. Foy,
V. Harrison,
Constant y. Matteson,
Converse v. Blumrich

V. M'Kee,
Conway v. Alexander,
V. Cutting,
. V. Ellison,

V. Kinsworthy,
Cook V. Claypoole,

1113,
1990,

V. Colyer,
V. Eaton,
V. Ellington, .
V. Farrington,
V. Fincii,
V. Gudger,
V. Husbands,
V. Travis,
V. Wright,
Cooke V. Bel),

V. Clayworth,
V. Lamotte,

1^05
263, 293,^96

1713,

V. Oxley,

v. United States,
Cookes V. Mascall,
Cooley V. Brayton, .
Coon V. Jones,
Cooper's Appeal, .
Cooper V. Barclay,
V. Bigly,

597

1125, 1135

410

1993, 1996

. 1646

. 1373

. 1137

. 1037

. 1236

. 1990

. 1860

322, 323

. 2064

. 1991

. 985

. 208

1714, 1724

204

103

1226, 1252,
1257, 1259, 1261
1078, 1089
1908

293, 297, 303

1082
195

1371
409

1724

V. Brown, .
V. Cooper, .
V. Farmers' Ins.
V. Parker, .
V. Pena,
V. Phibbs, .
V. Kemsen,
v. Smith, .
V. Ullman,
V. Whitney,
V. Wilcox, .
Coover's Appeal, 393,

Co.,

1103

394,

Cope V. Cope,
V. Smith,
Copeland v. Copeland,
V. Yoakum,
Copis V. Middleton,
Copland v. Bosquet,
Copley V. Copley, .
Copper V. Wells, .
Coquillard v. Bearss,
Corbin v. Mills,

V. Wilson, .

310, 311

1117, 1139

697

981

1728

1140

1734

511

863

2009

1986

1901

410,

411,

413

.' 343

. 1905

. 213

. 1993

278, 279

61, 62

. 849

. 1153

. 1635

647, 649, 659, 672

1500, 1502

Corbit V. Smith,
Corbitt V. Corbitt, .
Cordevant v. Hunt,
Corless v. Corless, .
Corn V. Sims,
Cornelius v. Post, .
Cornell v. Hall,

V. Lovat, .
Corning v. Troy Factory,

V. White,

Cornish v. Tanner,

V. Wilson,

PAGE

1990

1914
214
226
1415
1995, 1999
508, 509
. 1631
. 202
. 1334
317, 322, 323
340, 381, 384, 652
Cornwallis' Case, . . . .152
Cornwithe v. Griffing, . . . 1375
Correy v. Caxton, . . 68, 70, 214
Corser v. Craig, .... 1647
Corson v. Mulvauy, 1038, 1040,

1078, 1079, 1083, 1086, 1088, 1089
Corwine v. Corwine, . . . 350
Coslake v. Till, .... 1123
Costa V. Monroe Man. Co., . . 1343
Costar V. Brush, .... 1711
Coster v. Bank of Georgia, . . 92

eater's Case 288

Cotheal V. Talmadge, 2064, 2065, 2068
Cotton V. Cotton, .... 1941

v. Ward, 1117

Cottrell's Appeal, . . . .279
Cottrell V. Hughes, ... 47
V. Long, .... 1988
Couch V. Delapaine, . . . 1630
V. Ulster Turnpike Co., . 1412
Cougenhour v. Suhre, . . . 944
Coughrey v. Smith, . . . 1507
Coulter V. Morgan, . . . 1914
Count Arglasse v. Musohamp, . 1827
Countess of Gainsborough v. Gif-

ford, .... 1378, 1385

County V. Copley, .... 951
County of Armstrong v. Brinton, . 1328
Courrier v. Graham, . . . 1149
Courts V. Hibner, . . . .916
Coutts V. Ackworth, 1192, 1213,

1227, 1253, 1257
Covel V. Tradesman's Bank, . . 1672
Covenhoven v. Shuler, 698, 699, 702, 715

Cover V. Black,

90, 91

Covington v. Leak,

. 578

Cowan's Appeal, .

1212, 1725

Cowden's Estate, .

293, 295, 296

Cowing V. Howard,

. 540, 543

Cowles V. Brown, .

. 1012

V. Carter, .

K . 1412

V. Kidder, .

. 1630

Cowls V. Cowls,

. 1517

Cowperthwaite v. Sheffiel

d, 1645,

1650, 1653

Cox V. Cleft, .

. 1355

V. Corkendall,

. 351

V. Mayor,

. 1413

V. Milner,

. 147, 224

V. Mobile Co., .

. 1906

V. Osbum,

. 72

TABLE

OF AMERICAN CASES.

Ixui

PAQK 1

PAGE

Cox V. Smith, . 900, 903, 904, 905 |

Cromelien V. Manger, .

. 1671

V. Sprigg,

. 1645

Crompton v. Baldwin, .

. 1356

V. Wheeler, .

283, 285

Cromwell v. Benjamin, .

. 1491

Coy V. Stucker,

. 1736

Orooker v. Crooker, . 395

, 402, 408

Coziae V. Graham

. 979

Croome v. Lediard,

. 1000

Cozzens v. Stevenson, .

. 972

Cropper v. Coburn, 410, ]

L402, 1409

Oraddock v. Cabiness, .

. 1242

Crosbie v. Tooke, .

. 1040

Cradle v. Meen,

255, 257

Crosby v. M'Doual,

. 1082

Cradlebaugh v. Cradlebaugh,

. 919

■ V. Wyatt, 1910, 1911,

1912, 1921

Craft V. Beale,

,

. 1670

Cross V. Eglin,

. 1107

V. BuUard, .

. 1990

V. Hipner, . .

. 1988

V. Thompson,

. 1388

V. Mayor, . .

. 1408

Crafts V. Dexter, .

. 1370

V. Smith,

. 1791

Craig V. City of Vicksburgh,

. 51

Crotzer v. Bussel, .

. 944

V. Henderson,

. 1341

Croughton v. Duval,

. 1905

V. Kittredge,

993, 1009

Crow V. Ballard, .

. 1263

V. Leslie,.

. 1084

V. Vance,

. 1667

V. McGrehee,

. 589

Crowder v. Shackelford,

. 591

V. Marsh,

. 62

Crowell V. Woodbury, .

894, 908

V. Martin,

. 1116

Crowningsfield V. Crowningsfield, . 1281

V. Parkes,

. 1667

Cruger v. Burke, .

. 1916

Craige v. Craige, .

. 1027

V. Douglass,

1707, 1725

Grain v. Pain,

. 1642

V. Heyward,

. 1500

Cram v. Mitchell, .

. 34

Cruise v. Christopher, 1233,

1238,

Crane v. Buchanan,

1988, 2005

1242'

1246, 1247

V. Bunnell, . 1351,

1991, 1998

Crump V. Eead,

. 1860

V. Conklin, .

1037, 1244

Cruse V. M'Kee,

. 1865

V. French, .

. 395

Crutchfield v. Danilly, .

. 1413

V. Cough, .

. 1641

Cud V. Eutter,

. 1154

V. Library Co.,

. 947, 948

'Cutfv. Penn, .

1021, 1025

V. March,

. 1667

Culb V. Ives, .

. 1664

Crary v. Goodman,

. 1631

Cullen V. Erwin, .

. 2009

V. WiUiams,

. 832

V. Ferguson,

. 1140

Crassen v. Swoneland, .

. 1989

Cullum V. Erwin, .

. 1668

Cravener v. Bowser,

1021, 1023

Culver V. Benedict,

. 84

Crawford v. Bertholf, .

70, 1108

Cumberland v. Codrington,

341, 345

V. Fisher,

. 1393

Cumberland Co. v. Sherman,

. 1263

v. Gaveden,

. 1911

Cumming's Appeal,

. 421

T. Thurmond, .

. 1364

V. Arnold, .

. 1021

Creath v. Sims, 1236, 1330,

1362,

V. Gumming, 27

1, 293, 295

1899,

1909, 1911

V. Fullam, .

. 1671

Creed v. Creed,

. 331

V. Little, .

. 1902

Creery v. Holly,

. 963

V. Norris,

. 1340

Creightou v. Pringle,

. 1804

Cunningham v. Hawkins,

1988, 2007

Cresson v. Miller, .

. 73

V. Knight,

. 2006

Crews V. ThreadgiU,

. 1996

V. Sharp, .

1143, 1145

Cribbins v. Markwood, .

. 1032

V. Spickler,

. 741

Crider's Appeal, . 324, 3

33, 337, 338

Curan v. Colbert, .

. 1901

Cripps V. Jee,

1014, 1016

Gureton v. Watson,

. 1804

■ Crisp, Ex parte.

. 261

Currens v. Hurt, .

. 148

Crispell V. Dubois, 1194, 1275

1285,

Currie v. Steele,

. 1732

1288,

1289, 1290

Curriga v. State,

. 572

Crist T. Brindle,

. 1341

Currin v. Spraull, .

. 898, 900

Crittenden v. Drury,

. 1112

Curry v. Davis,

. 1710

Crockat v. Crockat,

. 675

V. Larer, 2054,

2061,

2066, 2067

Crocker v. Higgins,

. 1012

Curtis V. Auber,

1614, 1615

V. Pierce, .

1228, 1229

V. Blair,

. 158

V. Whitney,

1646, 1671

V. Brewer, .

2052, 2068

V. Young,

. 1032

V. Curtis,

. 1510

Crockett v. Crane, .

. 409

V. Kitchen, .

. 290

V. Maguire,

. 208

V. Lanier, .

. 33

Croft V. Day, .

. 1286

V. Leavett, .

. 85

V. Luxley,

. 1729

V. Mundy, . 97, 14

7, 148, 149

V. Moore,

. 279

V. Murphy, .

•

. 222

Ixiv

TABLE OP AMERICAN CASES.

Curtis v. Kippon, .

T. Smallbridge,
V. Tyler, .
Gushing v. Ayer, .
V. Drew, .
V. Hurd, .
Custard v., Custard,
Custis V. Taylor, .
Cuthbert v. Cuthbert,
V. Peacock,
Cutler v. Bank,
Cutts V. Perkins, .
Cuxon V. Chadley,
Cuyler v. Ernsworth,,

961,

DSibney v. Gre^n, .
Paggitt Y. Lane,
Dahlgreen v. Duncan,
Dakin v. Williams,
Daking v. Demming,
Dale V. Cooke,

v. Kempton, .
V. Koosevelt, .
Dalzell V. Crawford,
Damon v. Damon, .
V. Phillips,
Dan V. M'Knight, .
Dana v. Hancock, .
V. Hewhill, .
Dandridge v. Minge,
Dane v. Carduan, .
Danforth v. Dart, .
V. Streeter,
Daniel v. Hollingshead,
V. Leitch, .
V. Mitchell,
Daniels v. Davidson,
V. George,
V. Peterson,
V. Sorrells,
Dankel v. Hunter, .
Danklessen v. Braynard,
Danzeisen's Appeal,
Darling v. Loveland,
Darlington's Appropriation,
Darnell v. Darnell,
T. Rowland
Darwin v. Kippey,
Daubenspeck v. Piatt,
Daubney v. Cockbum,
Davenport v. Gentry,

V. Lawrence,
Davey v. Littlejohn,

V. Prendergrass,

David V. Malone, .

V. Tileson, .

Davidson v. Gowen,

V. Little,

PAGE

. 18(i3

. 1378

. 1908

204, 293

2053, 2067

. 225

. 987

. 1667

647, 664

. 823

. 101

. 1646

. 1670

. 279

. 1990

. 1230

423, 424, 426

2052, 2054, 2063

540, 543

. 1342

. 1666

1354, 1829
. 999
. 1035
. 418
. 32
. 1021
. 33
. 323
. 1905
. 154

1625, 1638
46, 67
. 1117
. 103
187, 1085
. 1337

1899, 1900
98, 99
. 1101
. 1647
. 1983
. 1290
. 1725
. 1211

1211, 1242
. 1906

1989, 1999
. 1261
. 1630
. 593
96, 97
. 1914
. 1912
. 1368

1624,

101,

93, 97

1032, 1033,

1237, 1238, 1239

V. Russell, . . . 1262

V. Thompson, . . 916

Davies v. Austen, .... 1672

V. Fitton, .... 1007

V. Penton, . 2044, 2063, 2068

PAGB

Davies v. Stainbank, 1898, 1917, 1918
V. Stonehart, . . . 1989

Davis' Appeal, .... 1797
V. Bank of United States, . 177
V. Barr, .... 55
V. Bradley, ... 61, 62
V. Cain, . 646, 647, 659, 660
V. Calvert, 953, 1262, 1265,

1266, 1267, 1272, 1280
V. Earl of Strathmore, . 213

V. Gardiner,
V. Graham,
V. Harkness,
V. Harman,
V. Headley,
V. Hopkins,
V. Jones,
v. Maynard,
V. Milbum,
v. Ownsby, .
V. Parker, .
V. People, .
V. Roberts, .
V. Rogers, .
V. Sharon, .
V. Shields, .
V. Stevens, .
V. Tileston, .
Daws V. M'Michael,
Dawson v. Bank, .

V. Coles, .

Ex parte, .

V. Jay,

V. Real Estate Bank,
Day V. Clark,

V. Cummlngs,

350

1899, 1911, 1912

. 1503

. 1804

. 1830

180, 1987

948, 949

. 670

. 1341

93, 94, 225

. 1823

1908, 1921

1503, 1504

571, 1285

1638, 1639

1097, 1103

. 1122

1385, 1386

. 106

. 1369

1641, 1669

1496, 1497

. 1497

. 1899

41, 42, 213

1333, 1362

1092,

V. Dunham, 38, 207, 218, 220, 1986
V. Everett, .... 1491
V. Insurance Co., . . . 2005
Succession of, . . 592, 593

V. Wetherby 393

D' Arras v. Keyser, 1090, 1091,

1112, 1129, 1130, 1131
D'Arunda v. Houston, . . . 962
De Camp v. Crane, . . . 1992
V. Peay, 1110, 1113, 1129,

1133, 1134
De Cordova v. Smith, . . . 1136
De Hautville's case^ . . . 1527
D'lvernois v. Leabitt, . . . 1830
De Klyn v. Watkins, . 1824, 1830

De Manneville v. De Manneville, 1510
De Medina v. Grove, . . . 1376
De Montmorency v. Devereux, . 1220
De Nottebeck v. Astor, . . 647, 661
De Peyster's Case, . . . 541, 544
De Peyster v. Clendenning, . ' . 706
V. Hasbrook, 982, 988, 1009
De Rutte v. Muldrone, . . . 1090
De Buyter v. Trustees of St. Peter's, 226
De Vendal v. Malone, . 100, 106, 214
De Vendel v. Hamilton, . 95, 96
De Witt's Appeal, . . . 1673

De Witt y. Moulton, . . .206

TABLE OF AMERICAN CASES.

Ixv

De Wolf V.Gardiner, .

1605, 1606

De Wolf V. Strader,

. 1989

Deaderick v. Cantrell, .

. 1794

V. Smith,

. 1389

Deal V. Bogue, . 408, 409, 410, 411

V. Cochran, .

1899, 1909

Dean v. Fuller, . 1210,

1211, 1231

V. Gates,

. 43

V. Negley, 1194, 1210,

1265,

1267, 1268,

1272,

1277, 1279

V. O'Meara, .

. 916

V. Phillips, .

. 403

V. Walker, .

. 1233

Dean of Ely v. Stewart,

. 1038

Deane v. Test,

. 653

Deanes v. Scriba, .

. 575

Dearborn v. Taylor,

. 2008

Dearie v. Hall,

. 52

Dearmond v. Brooking,

. 1632

Deas V. Span,

. 583

Death v. Bank of Pittsburg,

. 1396

Deaver v. Erwin, .

. 1382

Debell v. Foxworthy,

199, 201

Deberry v. Adams,

1914, 1917

Debeze v. Mann,

790, 813

Decan v. Shipper, .

. 43

Deck's Appeal,

. 999

Decker v. Eisenhauer, .

. 1673

V. Judson, .

. 1394

V. Leonard,

. 2008

Deckert v. Filbert,

. 413

Dederick v. Hoysradt, .

. 1392

Dedham v. Natick,

. 1488

Deery v. M'Clintock,

. 901

Deforest v. Bates, .

.. 2045

Degv. Deg, .

. 386

Dehon v. Foster, . 1396,

1397, 1832

Delafield v. Illinois,

. 51, 1354

V. Parrish, 1216,

1242,

1281, 1282, 1283,

1284,

1285, 1286,

1288, 1289

Delahoy v. McConnell, .

. 1987

Delaney v. Walker,

. 915

Delano v. Moore, .

. 224

Delavan v. Duncan,

1116, 1137

Delaware and Hudson Cana

Co.'s

Appeal,

. 265, 266

Delaware Ins. Co. v. Hogan,

. 981

Delger v. Johnson,

. 1414

Deloraine v. Brown,

. 1263

Demarest v. Wyncoop, .

J2, 33, 1940

Demond v. Insurance Co.

. 987

Dempsey v. Bush, . . 2'

J9, 280, 281

Den y. Dimon,

. 58

V. Geiger,

. 1631

V. Gibbons, 1265, 1267

1281, 1282

V. Bickman, .

. 94

V. Shotwell, .

. 1631

V. Vancleave,

. 1282

Denney v. Bullock,

. 1504

Dennis v. Cummins,

. 2061

V. McCagg,

. 1228

V. Kider, .

1905, 1921

VOL. II. — E

PA OB

Dennis v. Turnbull, . . . 1642
Denniston v. Coquillard, . . 1129
Denny v. Allen, . . . 565, 567
Denslow v. Moore, .... 1272
Dent V. Bennett, .... 501
Denton v. Franklin, . 1267, 1274

V. Stewart, . 1153, 1154

Depeyster v. Graves, . . . 1416
Y. Hildreth, . . 262, 267
Derby v. Derby, . . . .347
Deronge v. Elliott, . . . 1646

Derr v. Kichman 225

Deshazo v. Lewis, .... 965

Despard v. Walbridge,

Detrichs v.. Spain, ,

Deveau v. Fowler, .-

Devers v. Boss,

Devlin v. Little,

Dewey v. Littlejohn,

Dewitt V. Ackerman,

V. Yeates, .
Dey V. Dey, .

V. Williams, .
Diamond v. Lawrence Co. Bank,
Dick V. Mawry, .
Dickerson v. Canfield,

1394, 1990

. 1349

399j 402, 405, 406

. 1914

1021, 1026

224

900, 903

. 736

350, 351

821

196

1667

._, . . . 571

V. Commissioners, 1363,

1376, 1914, 1917

V. Talbot, . . . 1610

Dickerson v. TiUinghast, 32, 33, 37, 86

Dickey's Appeal, .... 1726

Dickey v. Lyon, .... 188

V. Thompson, . . . 303

Dickinson v. Amy, . . . 1154

V. Braden, . . .221

V. Hoomes, . 1823, 1826

V. Marrow, . 1646, 1649.

, v. Masson, . . . 1645

Dickson v. Campbell, . . .149

V. Richardson, . . 1358

Diehl V. Page, . . . .180

Dietrich's Appeal, .... 554

Dietrick v. Dietrick, . 1273, 1284

Diffenderffer v. Winter, . . 573

Diggs V. Wolcott, .... 1390

Digman v. McCullum, . . . 203
Dike V. Greene, . . 1031, 2070

Dill V. Shahan, . . . 983, 1736
Dillard v. Crocker, ... 66
Dilly V. Barnard, . 1333, 1358, 1373
Dilworth v. Sinderling, . . . 2013
Dimon v. Hazard, . . . 405, 407
Dimond v. Providence E. E. Com-
pany, ...... 981

Dinkle v. Marshall, . . .968
Disbrow v. Jones, . . . .180

Distilled Spirits, Case o^ . . 176

Dix T, Cobb, 1666

Dixon V. Dixon, . . 1215, 1245

V. Doe, . . 99, 182, 224
V. Ewing, .... 1901
V. Homer, .... 566
V. Eolards, .... 61
Doan V. Mauzey, . . 1152, 1154

Ixvi

TABLE OF AMERICAJT CASES.

Dobell V. Hutchinson, .

PAGE

. 1028.

Dobson V. Pearce, 1377, 1394, 1395,

1398, 1400, 1406

v. Eacey, .
Dockerry v. McDowell,

. 1985

. 689

Dookery v. McBonnell, .

. 1804

Doe V. Alsop,

. 214

V. Bell, .

. 1488

V. Bennett,

. 952

y. Hiscoeks, .

674, 675, 676

V. McLoskey, .

. 2007

V. Martin,

. 674

V. Meux,

. 166

V. Oliver,

: 1609

V. Perkins,

. 163

V. Postmaster-General, . . 1899

V. Eeed, .

. 213

Doggett V. Hart, .

. 861, 1670

Dohie V. Gardner, .

. 208

Doloret v. Kothschild, .

. 1128

Donahue v. Prentiss,

. 1333

V. Woodbury, ,

. 1728

Donaldson v. Benton,

. 961

V. Eaborg, .

. 574

V. State Bank

, . . 85

Donelson v. Posey,

. 590, 1036

Doner v. Stauffer, 393,

396, 398,

409, 411, 4l3, 414, 416

Donley v. Hays, 56, 57,

58, 1667,

1668, 2008, 2009

Donnell v. King, .

. 99, 102

V. Mateer,

. 900

Donnellan t. Lennox,

. 511

Dooley V. Watson,

. 2070

V. Wolcott,

. 223

Dorkray v. Noble,

. 2008

J)ornin v. Smith, .

. 1633

Dorr V. Harrahan,

. 2049

V. Munsell, .

951, 961, 962

V. Shaw,

273, 275, 276

Dorsay v. Eeese, .

1339, 1361, 1363

Dorsey v. Dorsey, .

. 573, 574

Doswell V. Buchanan, 7

3, 75, 202,

203, 210, 226

Doty V. Eussell,

. .43

Doub V. Barnes,

. 317

Doughady v. Crowell,

. 916

Dougherty v. Colgan, 1

984, 1995,

1999, 2010

V. Crady,

. 1988

Doughty V. Doughty, 1

213, 1214,

1231, 1239, 1242

T. Stillwell,

649, 668,

671, 672, 673

Douglas' Appeal, .

. 286

Douglass V. Keynolds,

. 313

V. Eussell,

1613, 1614

V. Satterlee,

. 1792

V. Spears,

1092, 1093

V. Whiting,

. 1085

V. Winslow,

. 395, 409, 411

Dow V. Carter,

. .983

V. Chamberlin,

. 1992

Dowell V. Dowell, .

. 1640

Dowlej In re, .
Downer v. Bank, .
V. Church,
V. Dana, .
Downing V. Marshall,
V. Murphy,
V. Eisley,
V. Smith,
Downman v. Eust,
Doyle V. Donnelly,
V. Dixon,
V. O'DonneU,
V. Teas, 38, 146, 147

PAGE

. 1508
50, 51
. 1723
. 1341

548, 549
. 1290
. 1108
. 100
. 349
. 1703
. 973
. 1723
156,

204, 221
. 1917
. 279
. 547

214, 255

. nm

1899, 1911

. 1913

1112, 1118

1381, 1382

291

550, 551

. 1087

1137, 1139

. 1330

1793, 1796

. 1129

. 1278

540, 547

1938, 1940

79, 206

328, 339, 798

. 169

Dozier v. Lea,

V. Lewis,

Drake v. Price, ;

Draper v. Bryson, .

V. Owsley, .

V. Eomeyn,

V. Trescote,

Dresel v. Jordan, .

Drew V. Hague, . 1369

V. Eust,
Drysdale's Appeal,
Dubbs V. Finley, .
Dubois T. Baum, . 1136
Duckworth v. Duckworth,
Ducommon's Appeal,
Duffey V. O'DonoTan,
Duffield T. Eobeson,
Duffy V. Duncaii, .

V. Insurance Co., .
Dufphey v. Frenaye,
Dugan V. Hollins, .
Duke V. Balme,
Duke of Beaufort v. Berty, . . 1521
Cadeval v. Collins, . . 1724
Dumain v. Gwynne, . . . 1515
Dumas v. Smith, .... 1638
Dumpoi's Case, .... 2049
Dunbar v. Mize, .... 1941
V. Woodcock, . . . 1646
Duncan v. Cook, . . 1492, 1493

V. Darst 1402

V. Fowler, . . .393

T. Johnson, ... 73
V. Lyon, 1340, 1357, 1363,

1373, 1374, 1382
Duncklee v. Greenfield Mill Com-
pany, ...... 1668

Dundas v. Sterling, . . . 1906
Dunham v. Day, .... 670

V. Gates, . . . .103

V. Hanna, . 397, 403, 420

V. Murdock, . . 395, 411

Dunkin T. Wilkins, . . .1623

Dunkler v. Adams, . . . 2047

Dunlap T. Barnet, . . . .89

V. Clements, . . .316
V. Dunlap, . . .333

V. Eobinson, . 1265, 1268
T. Sisson, .... 1395

V. Wilson, . . . 171, 176

TABLE OF AMERICAN CASES,

Ixvii

1710,

Dunn V. Chambers, 1192, 1213,

1214, 1231, 1238, 1239, 1240
V. Qark, . -

V. Fish,
V. Olney,
V. Snell,
Dunnage v. White,
Dupont V. Johnson,
Dupost, Ex parte, .
Dupree v. Thompson,
Durant v. Bacot,
Duren v. Gretschell,
Durham v. Dey,

V. Rhodes,
V. Wadlington,
V. Williams,
Durken v. Hess,
Durst V. Swift,
Dustin V. Newcomer,
Dutch Church v. West,
Dntil V. Packers, .
Duval's Appeal,
Duval V. M'Loskey,
V. Meyers, .
V. Wilson, .
Duvall V. Seeles, .
Dvren v. Blake,
Dwight V. Newell, .
V. Pomeroy,
Dwinel v. Brown, .
Dyche V. Patton, .
Dyckman v. Kemocher,
J^er V. Armstrong,
V. Dorsey,
V. Dyer,
V. Hargreaves,
V, Pearson, .
Dykers v. Lieather M. Bank,
Dyotf s Estate,

1403
1373

270, 271, 272, 273
1641, 1642
. 1213
. 1500
. 805
. 983
. 980
. 1388
. 146
. 341
1722,1735
. 322
. 1491
. 2052
. 1155
. 1117
. 1356
. 558
. 1667
1077, 1094
. 1645
. 1368
. 1996
. 92
963, 996
2062, 2064
1382
1391
1408
2068
978
1145
61
1653
551

Eadie v. Sleeman, 1230, 1246, 1250, 1733

Eame v. Creditors, . . . 565

Eames, Ex parte, .... 1406

EarlofBelvidere V. Eochefort, . 343
of March v. Pigot, 1708, 1710

of Newberry v. Wren, . . 1393
of Oxford's case, . . . 1832
of Portarlington v. Soulby, . 102

Earle v. Dresser, .
V. Hopwood,

Early v. Garland, .

Earn v. Snyder,

Earp's Appeal,

East India Co. v. Donald,

Eastburn v. Kirk, .

Eastman v. Foster,

Easton V. Easton, .

Eaton V. Benton, .

Eaves v. GiUispie, .

Eberhardt's Appeal,

Eberley v. Groff, .

Eberts v. Eberts, .

Ebner v. Goundie,

Eby's Appeal,

1497
. 1638
. 1631
. 1281
. 721
. 103
. 141i
. 1908
. 1703
825, 826
. 62
270, 271, 272, 273
. 104
1212, 1726
40, 81
. 1825

822,

PAGK

Eckert v. Cameron, . . . 164
v. Flowry, 1194, 1196, 1273,

1277, 1278, 1279, 1280
Eckford v. D'Kay, . . . 1504

Eddy V. Herrin 1249

V. Travers, . . . .283
Edelen v. Dent, . . . .821
V. Edelen, . . . 573, 574
Eden v. Smith, . . . 831, 832
Edgar v. Boies, .... 1106
Edgerly v. Emerson, . . . 279
Edgerton v. Peckham, 1112, 1133, 1135
Edmiston v. Lyde, .... 202
Edmonds v. Crenshaw, 582, 583,

584, 1794
Edmondson v. Jones, . . . 1412
Edrington v. Harper, . . . 1991
Edwards v. Baugh, 1711, 1712, 1713, 1723

V. Blanksmith,
V. Brown,
V. Drinker,
V. Ela, .
• , V. Meyrick,

V. Parkhurst,
V. Poy, .
V. Eanier,
V. Tumbull,
y. Variok,
Edwin V. Parham,
Effinger v. Richards,
Egbert v. Brooks, .
V. Woods, .
Egerton v. Egerton,

V. Matthews,
Eichelberger v. Bamitz,

V. Murdock,
Elam V. Keen,

950,

195

952, 953

93, 99*

. 567, 568

. 1220

. 1624

. 1631

. 740

207, 224, 1993

. 1335

. 1237

. 591

. 571

392, 393, 418

. 571

. 1093

. 707, 709

1642, 1643

1646

Elder v. Elder, . 995, 997, 1007, 1011

Eldredge v. Heard,

Eldridge v. Hill, .
V. Jenkins,
V. Lippincott,

Elkenhead's Case, .

Elkins V. Page,

Elkinton v. Newman,

EUicott V. EUicott,

Elliott V. Callan,

1866
1337, 1350
1987, 2005
. 1493
. 793
. 1388
. 287
. 288
1673

V. Carter, 324^ 325, 328, 330,

340, 349, 352

V. Elliott, .
V. M'Clelland,
V. Maxwell,
V. Sleeper, .
V. Stevens, .
ElUs V. Burden,
V. Deadman,
V. Ellis, _ .
V. Kreutzinger,
V. Missouri, .
V. Paige,
V. Townsley^
Ellison V. Daniels,
V. Ellison,
V. Pecare, .

565,

1212

1638, 1640

. 1990

. 670

. 399

. 999

. 1029

1859, 1860

. 53

. 1671

. 330

89,90

2007, 2008

990, 1035

297, 302

Ixviii

TABLE OF AMBKICAN CASES.

PAGE

EUmaker v. Franklin Ins. Co., . 1344

Elmer v. Loper,

. 570

Elwes V. Mawe,

. 1616

Elwood V. Diefendorf, .

1916, 1918

Ely V. Beaumont, .

. 1112

V. M'Kay, . 1136

1137, 1139

y. Wilcox, . . 41,

42, 180, 212

Elyaville Man. Co. v. Okisko Man.

Co., ....

. 946

Emanuel v. Byrd, .

. 418

Embury v. Conner,

. 208, 1399

Emerson v. Atwater, 1988

, 1989, 2008

V.Hall, . .

. 1630

V. Hills, .

. 1093

V. Littlefield, .

. 96

V. Udall, 1330, 133£

, 1372, 1389

Emery v. Lanman,

. 1628

Emmanuel v. Hunt,

1667, 2008

Emmons v. Bradley,

. 317

Enders v. Enders, .

. 648, 654

.Engel V. Scheuerman, .

1396, 1398

England v. Jackson,

. 1022

Engle V. Haines, .

. 303

English V. Lane, .

. 965, 1988

V. Miller, .

. 1402

. 1381

V. Suback, .

. 1392

V. Waples,

. 57

Enos V. Sutherland,

1993, 2005

Ensign v. Kellogg,

1105, 1623

Episcopal Church v. Wiley,

. 1823

Epiey V. Witherow, 146, 147, 153, 163

Eppes V. Eandolph,

. 89, 279

Eppinger v. M'Greal,

1116, 1137

Erb's Appeal,

. 285

Erickson v. Willard,

. 1857

Erie Bank v. Gibson, .

. 1905

Erie E. K. Co. V. Eamsey,

1392,

1395, 1396

Erland v. Eadford,

. 1998

Erskine v. Decker,

. 43

V. Towrisend, .

. 2007

Erwin v. Meyers, .

1147, 1156

V. Saunders,

. 944

V. Seigling,

. 581

Eschelberger v. Erskine,

. 1657

Eshleman's Appeal,

. 555, 558

Esling V. Zantzinger,

1642, 1670

Esmay v. Gordon, . . 979,

1093, 1094

Espey V. Anderson,

1000, 1024

Essex County v. Berry, .

. 1381

Estes V. Furlong, .

1092, 1129

Evans' Appeal,

. .832

V. Battle, .

. 1155

V. Bicknell,

. 54, 103

V. Duncan, .

. 314

V. Edmonds,

962, 964

V. Ellis,

. 1216

Estate of Mary, .

1791, 1793

V. Huey, .
V. Iglehart,

. 1248

. 700

V. Kingsberry, .

1147, 1149

v. McGlasson, .

. 224

V. Pearoe, .

. 1487

PAGE

Evarts v. Mason, .... 564
Everett v. Everett, . . . 1256

V. Saltus, .... 61
V. Stone, .... 89
Everitt V. Lane, 335, 648, 655, 656, 657
Everly v. Eice, . . 307, 1415, 1902
Eversfield v. Eversfield, . . 573
Everson v. Fry, .... 1344
Everstou v. Everston, . . 86, 1672
Everts v. Agnes, . .• . .75
Evertson v. Booth, 259, 262, 314,

318, 321
Ewan V. Hobbs, .... 57
Ewart V. Walling, . 1983, 1999'

Ewer V. Hobbs, .... 2006
Ewing V. Beauchamp, . . . 1140
V. Crouse, .... 1112
V. Gordon, 1078, 1089, 1105,

1131, 1135
Eyre v. Eyre, .... 1137

V. Potter, 1032, 1231, 1237,

1239, 1240, 1243, 1263

Fair v. Stewart,

. 222

Fairbairn v. Fisher,

. 579

Fairchild v. Jordan,

. 212

Fairlee v. Duuton,

. 1670

Fairman's Appeal.

. 569

Falk V. Turn,

1257, 1258

Fall V. Simons,

. 586

Fall Eiver Co. v. Borden,

416, 429

Fallaes v. Pierce, .

. 40

Fallet V. Burger, .

. 1672

Fallon V. Burnet, .

. 155

V. Kennerly,

1112, 1124

Falls V. Carpenter,

1111, 1139

V. Robinson, 1375, 1383

1385, 1387

Fanning v. Dunham, 1335,

1362,

1365, 1371

Farley v. Goocher,

. 1991

V. Shippen,

1823, 1829

Farmer v. Bean, .

. 1989

V. Gross, .

1988, 1989

Farmers' Bank v. Bronson,

. 37

V. Fordy,

. 1667

V. Luther,

. 1391

V. Payne,

170, 171

V. Rathbone,

1917, 1918

V. Reynolds,

1899,

1900, 1901

Farmers' Loan Co. v. Hen(

irick-

son,

. 1616

V. Maltl

Dy, 75, 210

Parmington v. Jones,

.1491

Farnam v. Brooks,

1242, 1264

Farneyhough v. Dickereon,

576, 577

Farnham v. Campbell, .

. 202

Farnsworth v. Childs, .

145, 213

Ex parte, .

. 322

V. Jackson,

. 1628

V. Richardson, .

. 1510

Farnum V. Boutelle,

. 257

Farquharson v. Gechelberger,

. 204

Farr v. Thompson,

1267, 1268

TABLE OF AMERICAN CASES.

Ixix

1725,

Farris v. Farris,
Farwell v. Lowther,
Fash V. Eavesies, .
Fass V. Haines,
Fassett v. Fraber, .
Fatman v. Lobach,
Faulkner v. Davis,

V. Harwood,
V. Leith,
Faunce v. Bark,
Faust V. Birner,
Fearus v. Young, .
Feay v. De Camp, .
Felder v. Murphy, .
Fell, Ex parte,
Fellows V. Prentiss,
Fells V. Carpenter,
Felton V. Pitman, .
Fennimore v. Fennimore,
Fenno v. Seger,
Fenton v. Folger, .
Fentress v. Eobbins,
Fentum v. Pocock,
Fen wick v. Chapman

V, Macey,
Feret v. Hill,
Ferguson v. Fisk,
V. Frick,
V. Turner,
Ferriday v. Selcer,
Ferris v. Crawford,
Ferson v. Monroe,
Feticomb y. Thomas,
Fetrow v. Merriweather,
Petterman v. Muijphy,
Feversham v. Watson,
Fiedler v. Darrin,
Field, Ex parte,

V. Hearns, .

V. Hitchcock,

V. Mayor of New York, 1607,

1628, 1643, 1644, 1670

PABB

. 2050
1028, 1094, 1100

48, 93, 95
. 1154
. 262
. 1664
. 1865
. 1373
. 108

2046, 2052

1735, 1737

. 717

. 1112

. 321

399

1908^ 1915
. 1623
. 209

1792, 1796
. 208
. 412
. 1382
. 1917
324, 331
198, 2007
. 962

. 1356
. 1354
. 1901
. 1335
283, 303
396, 401
. 1642
. 1632
. 42
1143
2007
264
90
707

1996.

V. Schieffelen,
V. Stearns, .

Fields V. Arrowsmith,

Fife V. Clayton,

Filby V. Miller,

Filkins v. Whyland,

Pilley V. Phelps, .

Finch: v. Colyer, .
V. Finch,
V. Eayland,
V. Winchelsea,

Findlay v

85

43

1229

1028

33

947

427

55

849, 1491

. 578

89, 91, 390

Bank of the United

,a914

259, 322

. 1804

. 593

. 56

. 980

1030

1264

2070

304

Findley v. Hosnier,
Finger v. Finger, , .
Fink, Succession of,
Finney v. Brown, .
Firmstone v. De Camp, .
Fish V. Hubbard, .

V. Miller, 106, 1212,
Fisher v. Barrett, ..

v.'Olyde,. . ....

1263,

Fisher v. Dubert, .

V. Essex Bank,

V. Fisher, .

V. Kay,

V. Knox,

V. May,

V. Otis,

V. Shaw,

V. Skillman,

V. Smart,

V. Worrall, .
Fishmongers' Co.,

54, 55,
1703,

Eobertaoii,

PAGI!

., 971
1664
547
1153
1660
1735
2008
1014
1794
597
1017

1079, 1096, 1097, 1099, 1100, 1101

Fisk V. Cobb, . . . 708, 709

V. Gray, .... 2064

Fissler's Appeal, .... 1129

Fitch V. Boyd, . 1125, 1136, 1137

V. Cotheal, . . 1938, 1939

V. Fitch, .... 1727

V. Polk, . . 1385, 1387

Fitzgerald v. Jones, . . . 575

V. Stewart, . . .. 1648'

V. Vestal, . 1606, 1607

Fitzimmons v. Ogden, . . 47, 48

Pitzpatrick v. Beatty, . . . 999

V. Cottingham, . . 2061

Flack V. Charron, . . 396, 401, 415

Mann, 47, 67, 70, 72,

73, 75, 79, 101, 103, 106,

151, 169, 187, 188; 218,

1154, 1091, 1992, 1993,

1995,

V. Mauter, .

V. Munger, .

Flagler v. Pleiss, .

Flanders v. Samphear,

Pleischman v. Young,

Fleming v. Beaver,

V. Burgin,
V. Gilbert,
V. Eamsey,
V. Wilson,
Fletcher v. Dyke, .
V. Gamble,
V. Morey,
V. Peck, .
V. Warren,
Fleury v. Slocum, . .
Flight V. Bolland, .
Florence v. Hopkins,
Florey v. Florey, .
Flower's Case,
Flowers V. Franklin,
Floyd V. Floyd,
V. Jayne,
Foersch v. Blackwell
Fogerties v. Bank,
Foley V. Burnell, .
V. Crow,
V. Egan,
V. MKeegan,
V. M'Keou, .
V. M'Kilgore,,
Foliott V. Ogden, .

, 1999

. 70

. 2047

. 1009

. 1630

1413, 1414

. 279

215, 218, 222

. 1914

.1704

595, 596

2052,, 2068

' . 1909

. 1615

33, 42

1335, 1372

.1351

. 1100

897, 898

1259, 1262

,. 814

. 711

595, 1265, 1267, 1273

1372, 1384

. 1729

, . 1653

699, 706

. 1144

540, 544

2060, 2063, 2069
, 1146

2061, 2067, 2068
. 320

Ixx TABLE OF AMERICAN CASES.

PAGE

PAGE

Follmer's Appeal, .

. 1726

Frazer v. Western,

. 43

Foltz' Appeal,

. 560

Frazier v. Vaux, .

. 584

Fonda v. Van Horn,

. 1487

Freanor v. Tingling,

1899, 1901

Fontaine v. Tyler, .

. 650, 672

Freeland v. Reynolds,

. 1408

Fonte V. Horton,

1793, 1798

Freeman v. Baldwin,

1990, 1996

Foot V. Ketchum, .

. 1673

V. Curtis,

. 1734

V. Webb,

. 1028

V, Deming,

80, 82

Forbes v. Smith, .

. 1900

V.Hill, .

. 94

Ford V. Adams,

. 1671

V. Howard,

. 1403

Ford's Case, .

. 1663

V. Howe,

1402, 1403

Ford V. Ford,

. 669

V. M'Gaw,

. 2008

V. Gardner, .

. 1644

V. Mebane,

. 94

V. Harrington,

. 1236

V. Sedgwick,

. 1236

V. Irwin,

. 1996

V. Stuart,

. 423, 426

V. Rigby,

. 1408

Freeman's Bank v. Rollins

. 1910

V. Stuart,

. 1641

Freemantle v. Banks,

. 796, 797

Fords V. Vance,

. . 226

Freemoult v. Dedire,

. 386, 390

Foreman v. Boutelle,

. 823

Fremiess v. Dettlon,

. 1259

Forman v. Proctor,

. 1613

French v. Burns, .

. 1983

Forrester v. Wilson,

. 1368

V. Carver, .

. 1381

Forshall, Succession of, .

. 1490

V. Garner, .

1335, 1373, 1378

Forshaw v. Welsby,

1253, 1257

V. Hatch,

704,

706, 710, 713

Forsyth v. Clark, .

. 1027

V. Lovejoy,

392, 393, 394

Forsythe v. M'Creight, .

. 1332

V. Loyal Co.,

192, 198, 201

Fort V. Burch,

. 37, 223

V. Shoemaker,

1704, 1707, 1733

Forward v. Forward,

. 568

V. Sturdervant,

. 1995

Foshay v. Ferguson,

1245, 1248

Frere v. Moore,

31, 36

Fosnacht v. Winkelman^

. 1907

Freto V. Brown,

. 1489

Foss V. Hildreth, .

1724, 1733

Fretwell v. Stacy, .

. 557

Foster's Appeal, .

44, 212

Frewin v. Lewis, .

. 1408

Foster v. Alston, 1497, 15

11, 1527, 1528

Frey v. Demorest, .

. 570, 571

V. Bank,

. 1356

Freytag v. Holland,

. 2010

V. Boston, .

. 1079

Friedley v. Hamilton,

95, 207, 1993

V. Davis,

. 1791

Fripp V. Fripp,

1032, 1034, 1035

T. Dawber, .

. 1020

Frisby v. Ballance,

. 999

Ex parte.

. 1406

Frith V. Campbell,

. 549

V. Lowell, .

. 1645

V. Eoe, .

. 1335

V. Matt,

. 1496

Frost V. Beekman,

36,

75, 79, 80, 82

V. Mix,

. 1666

V. Raymond,

. 194

V. Mott,

. 1510

Frothingham v. McKusick

, . . 2007

V. Wood, .

1329, 1373

V. Stacker,

. 222

Foteanx v. Lepage,

. 597

Frow's Estate, 277,

282,

405, 406, 423

Foulke, Succession of, .

. 592

Fry V. Fry, .

. 1216

Fountleroy v. Leyle,

. 595

V. Porter,

. 152

Fournier v. Ingraham, .

. 562

Fryer v. Morris, .

. 666, 673

Foust V. Moorman,

. 903

Fuller V. Emerson,

1654, 1657

Fowke V. Woodward,

. 213

v. Fuller, .

. 1240

Fowler v. Alexander,

. 1917

V. Paush, .

. 1989

V. Barksdale,

. 316, 321

Fnlmer v. Seitz, .

1898, 1908

V. Brooks, .

1906, 1916

Fulton V. Davidson,

." 594, 1792, 1801

V. Colt,

. 571

Estate of, .

. 87

V. Fowler, .

. 848, 980

V. Hood, 946, 970, 972, 1014, 1245

y. Eoe,

. 1382

V. Matthews,

,

. 1899

V. Willoughby, .

, 653

V. Wood, .

. 1014

Fraine v. Brown, .

. 1038

Fulton Bank v. Benedict,

. 168

Fraley's Appeal, .

1660, 1673

V. New

York and

France v. France, .

. 1100

Sharon

Canal Co.,

Franchot v. Leach,

. 961

168,

171, 172, 177

Frank v. Peters, .

. 397, 401

Funk V. Mehaffy, .

,

. 281

Franklin v. Green,

1353, 1354

Fumell V. Nisbit, .

,

. 1347

V. Roberts, . 9

35, 1017, 1991

Fury's A.ppeal,

. 349

Franklin Academy v. Hal]

, . . 595

Frantz v. Brown, .

. 1672

Gable's Appeal,

,

. 552, 555

Frazer v. Jordan, .

1907, 1909

Gadberry v. McClure,

.

. 321

TABLE OF AMERICAN CASES.

Ixxi

Gadsden v. Brown,
Gahn v. Neimcewicz,

Gaither v. Caldwell,
V. Gaither,
Gaithera v. Brown,
Galbraith v. Black,

V. FuUerton
v. Martin,
Galbreath v. Doe, .

V. Winter,
Gale V. Archer,
V. Burnell,
V. Merrick, .
V. Wells,
Gallagher's Appeal,
Gallagher t. Gallagher,

V. Eoberts,
Gallatian v. Erwin,
Gallatin v. Cunningham,
Gallion v. McCaslin,
Gal pin v. Abbott, .
Gait V. Dobrell, .

V. Jackson,
Galton V. Hancock,
Gamble v. Dunklin,
V. Gamble,
V. Linder,
Gammon v. Howe,
Gano V. Thompson,
Ganson v. Lathrop,
Gardenshire v. Hinds,
Gardiner v. Adams,
V. Bowling,

P\GE

287
1908, "iQlSJ

1938, 1939
. 104
. 1274
. 915
. 1491
. 1913
. 1357
. 1631
648, 649, 651, 674
. 1128
. 1613
. 1143
. 1213
347, 349
648, 654, 655
. 1336

V. Gardiner, 1265,

33,34
. 100
. 67
. 205
. 206
. 1996
329, 343
. 1902
. 1281
. 2061
2052, 2058
. 2008
. 419
. 1517
. 1623
1376, 1381, 1385

1376,

1266,

1272, 1273
. 1909
. 540

1381, 1385
. 1905
. 1265
. 1371
. 1826
651,669,671,672
. 1729
. 1140

1628, 1649

54, 1673

. 1336

V. Harbick,
V. Tyler,
Gardner v. Bowling,

V. Ferree,

V. Gardner,

V. Jenkins,

V. Ogden,

V. Printup, 648,

V. Shert, .
Gariss v. Gariss,
Garland v. Harrington,

V. Harrison,
Gariick v. McArthur,
Garner v. Gordon, 1490, 1492, 1512,

1517, 1523
Garnet v. Mason, .... 1119
Garrard v. Eailroad Co., . 83, 84, 99
Garrett's Appeal, . 786,789,791,832
Garrett v. Garrett, . . . 582

V. Macon, 1032, 1039, 1139, 1142

V. Pritty, . . . .508

V. Veale, . . . .408
V.White, . . . 898,902
Garrity v. Eussell, . . . 1368

Garson v. Knapp, .... 191
Garth V. Lees, . . 1105, 1107

Garthshaw v. Carlie, . . . 849
Gartside v. Isherwood, . . . 1238

Garvin v. Paul,

V. Williams,

Garwood v. Eldridge,
V. Garwood,
Gary v. Hignut,
Gash v. Leadbilter,
Gaskill V. Gaskill, .

V. Siner,
Gasg's Estate,
Gasque v. Small, .
, Gass V. Mason,

V. Stinson,
Gassom v. Donaldson,
Gates V. Adams,
V. Shultz,
Gaultney v. Nolan,
Gaussen v. Morton,
Gaut V. Hunsucker,
Gaw V. Huffman, .

V. Wolcott,
Gay V. Gay, .

V. Hamilton,

1193

PAOB

. 409

1212,

1213, 1276

. 983

. 97, 225

316, 317, 1898

. 1350

. 293

. 308

599

! ' 1032, 1035

. 1243

. 1907

. 195

. 203

1703, 1733

. 1792

. 1656

. 961

. 337, 339, 383

. 1344

1338, 1347, 1672

. 1988

Gayos Saving Institute v. Fellows, 1666
Gearhart v. Jordan, . . 275, 277
Geddis' Appeal, .... 553

V. Hawk, .... 1898
Gee V. Spencer, . . 1708,1717

Geiger v. Geiger, .... 1103

V. Green, 1077, 1078, 1091, 1094
Geller v. Hoyt, . . . 262, 270
Gelston v. Sigmund, . . . 1091
General Ins. Co. v. M. Ins. Co., . 204
V. United States
Ins. Co., 48, 218, 222
Genet v. Tallmadge, . 1487, 1492

Gentry v. Rogers, .... 1136
George V. Kent, 37, 39, 149, 190,

191, 299, 301

V. Morris, .
V. Strange, .
V. Wood, .
German v. German,
V. Grier, .
V. Mackin,
Gernon v. M'Cann,
Gerrish v. Sweetzer,
Gest V. Frazier,
Getchell v. Jewett,
Gibb V. Linder,
Gibbes v. Cobb,
Gibbs V. Champion,
V. Cole,
V. Finlay,
V. Marsh,
Gibert v. Peteler, .
Gibler v. Trimble, .
Gibson's case,
Gibson v. Cooke, .
V. Crehore,
V. Finley,
V. Joyes,

V. M'Cormick,

2006

. 1373

293, ?08, 311

. 594, 712

. 1631

. 900, 1077

. 288

1654, 1659

. 1246

1093, 1116

. 2052

. 38, 154

1018, 1116, 1153

. 1413

382, 1642, 1643

. 1865

. 2049

47, 198, 199

573

'l642, 1643

. 565

382, 1642, 1648

1195, 1210, 1216, 1220

255, 317,
323, 340, 341

Ixxii

TABLE OF AMERICAN CASES,

Gibson v. Shearer, .

V. Stevens,
Giddings v. Coleman,

V. Seward, .
Gifford T. Allen, .

V. Thorn, .
Gilbert's Appeal, .
Gilbert v. Burgott,

V. Chapin, .

PAGE

. 1632

408, 409

. 1663

648, 649, 654, 655

. 1921

1240, 1366

. 1805

. 214

1862, 1863

V. Gilbert, 1265, 1276, 1278,

1284, 1285

V. Jess, .... 37

V. Sutliff, .... 596'

Giles V. Austin, .... 2044

Gill's Estate, 784, 785, 793, 796,

800, 808

Gill V. Lyon 292

Gilleland v. Failing, . . . 1633
GiUespie v. Darwin, . . . 1904
V. Miller, . . .697
T. Moon, 985, 991, 994,
995, 997, 998, 1001,

1007, 1011
T. Moore,
T. Keed, .
Gillet V. Fairchild,
Gillet V. Campbell,
Gillam v. Chancellor,
Gillilan v. Ludington,
Gilliott V. Lynch, .
Gillis V. Hall,
Gilman v. Gilman,

V. Hamilton,
Gilmer v. Gilmer, .
Girard Ins. Co. v. Farmers'

Mechanics' Bank,
Girard Ins. Co. v. United

Insurance Co.,
Girod, Succession of.
Gist V. Gist, .
Givin V. Campbell,

V. Selby.
Givins V. Briscoe, .

V. M'Calmont, .
Gladwell v. Spaugh,
1 V. Ellison,

V. Hulbert, 975, 978, 991,

993, 994, 997, 1003,

1005, 1006, 1008, 1010,

1012, 1014, 1018, 1019,

v. Pullen, ...

981, 988
206
1625
1667
819
1906
1377
1105
547, 548, 1803
195, 201
. 659
and
. 919
States

38

593

583

. 1371

. 393

. 1901

2010, 2012

. 180

. 2007

592,

Glassell v. Thomas, 1017,
Glastonbury v. M'Donald,
Glen V.Gill, .
Glendinning, Ex parte,
Glenn v. Fowler, .

V. Glenn,
. V. M'Kim, .
Glessock V. Nelson,
Gliddou V, Hunt, .
Glover V. Hayden,

V. Hodges, .

V. Ilolley,

1020

306

1018, 1149

. 1356

393, 400, 418

. 1918

. 1363

. 1805

1794, 1800

. 1136

34, 53, 85

. 1282

1366, 1382

. 547

V. Payn, 1995, 1996, 1997, 2002

PAGE

Gnathnalys v. Eagland, . . 2009

Gochenauer v. Cooper, . 1347, 1362
Goddard v. Prentice, . . . 224
v. Wagner, . 663. 674, 1500
Goffs Appeal, . . . .352

Gold V. Death, . . . .171
Golder County v. Littlejohn, 698,

703, 705, 706, 707
Goldsborough v. Turner, . . 47
Goldshede v. Swan, . . 674, 1031
Goldsmith v. Goldsmith, . . 849
V. Gould, . . . 1139
V. Guild, 1119, 1127, 1128
Goldsworthy v. Strutt, . 2052, 2055
Goman v. Salisbury, . . . 1023
Good V. Herr, 1704,

1726, 1735,
• 1736,

1737
388

1517
993

1903

1905

Goodchild V. Ferrett,
Goodeuough, In re,
Gooding v. M'Alister,
Goodloe V. Clay, .
Goodman v. Griffith,

V. Simonds,
Goodtitle v. Alker,

V. Cummings,
Goodwin v. Carson,
V. Follet,
V. State Bank,
V. Younge,
Goodwright V. Wells,
Gordon v. Calvert,
V. Downey,
V. Gordon,
V. Jefferies,
V. M'Carty,
V. Matthews,
V. Potter, .
V. West, .
Gore V. Gibson,
Gorham v. Pancoast,

V. Toomey,
GoshwUer V. Dode, 1506, 1507, 1512,

1521, 1528
Goss V. Lester, . .

V. Lord Nugent, 1020,

863
32
426
. 1729
. 321
. 989
43, 901
1089, 1093
. 1671
. 1213
. 961
1262
573
1491
563
1036
999
1392

1261,

1389,

V. Withers, .
Gossner's Estate, ,
Gott V. Cair, .
Gouoher v. Martin,
Gough V. Bell,

V. Gough, .
V. Manning,
V. Pratt,
Gouldurn v. Stevens,
Gould V. Bugbee, .
V. Eager,
V. Hayes, 587,
V. Hill,
V. Smith,
V. Williamson,

1021,

V. Winthrope, 323, 325, 341, 346

V. Womack,
Goulding v. Bunster,

588.

262
1021,

1022, 1025
. 1022
. 552
. 1373

1023, 1025
. 1610
. 1362

506, 507

1362, 1374

. 318

. 2044

287

589,' 1350

. 1409

. 1126

103, 104

999
1997

TABLE OF AMERICAN CASES.

Ixxiii

PAGE

Goundie v. Northampton Water Co., 40, 8 1
Qourley v. Seisenbigler, . . 1653
Gover V. Christie, .... 1670
Governeur v. Lynch, 182, 226, 293, 308
V. Titus, 86, 89, 90, 94,

989, 993, 1002, 1009

Governor v. Barrow, . 1369, 1373

V. Brown, . . . 1382

Gower V. Doheny, .... 94

V. Soltmarsh, . . . 2061

V. Sterner, . . 980, 993, 1010

Grafton v. Brady, . . 1338, 1415

Grafton Bank v. Kent, . 1917, 1921

V. Woodward, . . 1906

Graham v. Call, . . 1028, 1031

V. Davidson, . .579, 1794

V. Graham, 647, 654, 657,

706, 915, 916
V. Henderson, . . . 1017
V. Hendrew, . . . 1149
V. Henry, . . . 1606

V. Houghtailing, . . 1488
V. Oliver, . . .1148

V. Pancoast, 1035, 1036,

1037, 1038, 1241, 1242
V. Polk, .... 2063

V. Eoherts,
V. Samuel,
V. Stagg, .
V. Stevens,
V. Webb, .
Granberry v. Granberry,
Grand Chute v. Winegar,
Grand Tower Co. v. Phillips,
Grant v. Camp,

V. Lathrop, .
V. Ludlow, .
V. Pride,

, 1335

. 99

. 1373

. 1992

. 1631

. 575

1350, 1352

. 2071

. 423

. 1348

1624, 1626

579

V. Quick, 1389, 1390, 1392^ 1395

V. Smith, . 306, 1906, 1908

Grantham v. Hawley, . . . 1613

Gray v. Carmon, .... 316

V. Crosby, .... 2070

V. Paris, . . . .104

V. Fox, 1801

V. Handkinson, . . . 963

V. Lynch, .... 1802

Grave's Appeal, .... 552

Graves v. Boston, .... 981

V. Graves, . . 189, 205, 578

Great Falls Co., v. Wooster, 183,

1388, 1823
Greathouse v. Dunlap,
Greely v. Dow,

Green's Appeal,
Gieen v. Allen,
V. Ball,
V. Beatty,
V. Bridges,
V. Burke,
V. Butler,
V. Campbell,
V. Green,
V. Hanberry

962
1906, 1921
707
90
1990
1669
2047
1902
1991
1343, 1347
1282
1797

PAGE

Green v. Hart, .... 1667
V. North Buffalo Township, 951
V. Phillips, .... 1412
V. Price, . . 2052, 2063
V. Putnam, . . . 916, 917
V. Putney, . . . .573
V. Kamage, .... 302
V. Eichards, . 1100, 1101

V. Eobinson, . . . 1358
V. Slayter, . . . 164, 197
V. Smith, .... 1084
V.White, . . . .195
V. Winter, . . 538, 539, 543

Greenewalt v. Kreider, . . . 1905

Greenby v. Wilcox, . . . 1623

Greene v. Darling, . . . 1332

Greenfield's Estate, 550, 554, 954,
1192, 1204, 1217, 1230, 1233,
1250, 1257, 1258, 1259, 1260,

Greenin v. Hoey, .

Greening v. Fox, .

Greenleaf v. Edes, .

Greenlee v. Gaines,

Greenough v. Welles,

Greenwell v. Greenwell,

Greenwood v. Taylor,

Greer v. Archer, .

V. Greer, . 1037,
V. Knapp,
V. Tweed,
Gregg V. Crosby,

V. Landis, . 2046,
V. Patterson,
Gregory v. Ford, .
V. Wilson,
Gregson v. Eiddle,
Gremaway v. Adams,
Grey v. Sharp,
Gridley v. Andrews,
V. Garrison,
Griffin v. Bonham,

V. Cunningham,
V. Macauly,
V. Marquardt,
Griffith V. Brown, .
V. Burk,
V. Clark,

1650

1412

. 595

224, 225

. 1335

. 1865

. 1503

263, 264

. 1671

1211, 1242

. 190

. 2059

. 2054

2047, 2048

. 2013

1371, 1631

. 2047

. 1120

. 1153

. 676

348, 349

. 1349

. 583

1118, 1142

. 1800

. 87

1368

398

1371

V. Griffith, 33, 145, 168, 194, 197

Griffiths V. Smith, . . . .708

Grigsby v. Hare, .... 2009

Grill V. Lary, .... 1638

Grimstone v. Carter, 38, 48, 105,

157, 182, 184, 202,

205, 214, 220, 226, 227

Griswold v. Davis, ... 87

V. Smith, . . .221

Gross V. Leber, . . 985, 1256, 1734

Groton v. Eoxborough, . . . 2007

Grove v. Eentch, .... 2005

Grover v. Grover, . . 1642, 1646

V. Sims, .... 1670

Groves v. Groves, .... 901

Grundy v. Ward, .... 1117

Grymes v.. Howe, . . . . 1661

Ixxiv

TABLE OF AMERICAN OASES.

PAGE

Gue V. Tidewater Canal Co., 1403, 1412
Guernsey v. Carver, . . . 1644
V. Gardiner, . . . 1642
Querrant v. Anderson, 96, 98, 224, 225
V. Fowler, . 1823, 1829

Guien's Estate, . . . 557, 590
Guignard v. Mayraut, . . . 819
Guild V. Guild, .... 1823
Guion V. Knapp, 191, 192, 293, 295,

299, 308, 311
Guiteau v. Wiseley, . .93, 95, 96
GuUand v. Jaokman, . . . 214
Gump's Appeal, .... 979
Gunter v. Janes, .... 1805
Gurnee v. Maloney, . . . 599
Guthrie v. Kahle, .... 1983
Guy net v. Maitland, . . .1119
Gwathmeys v. Bagland, . . 1668
Gwin V. Selby, . . . .403
Gwyuu V. Dorsey, . . . 574, 575
V. Lethbridge, . i026, 1028

Haase v. Eaehrscheid, . . . 1500
Habergham v. Vincent, . . 816

Hacket v. Colladay, ... 90
Hackett V. Alcock, . . . 2044
Hackman v. CantreU, . . . 1995
Hackwith v. Damron, . . 182, 192
Haddeu T. Spader, . . .202

Haddock v. WUmot, . . . 1632
Haden v. Garden, 1356, 1357, 1358

V. Ware, .... 1736
Hadley v. Latimer, 1211, 1229, 1239, 1257
Hagar v. Buck, . . 2044, 2046
Hagey T. Hill, .... 1910
Haggerty v. Palmer, ... 87
Haglar V. M'Combs, . . .580
Hagthrop V. Hooks, 102, 103, 104,

105, 180

Haigh V. Brooks, ,
v. Claffiu, .
V. Kaye,^ .
Haight V. Hoyt,
Hain v. Kahlbach,
Haines v. Haines,
V. Spinell, .
V. Thomson,
V. Wood, .
Hakes v. Hotchkiss,
Hakewill, In re,
Haldeman v. Jennings,
Halderby v. Blum,
Hale V. Brown,

V. Burrodale,
V. Darter,
V. Salter,
. V.Wilkinson, 1032,
Haley v. Bannister,
Hall y. Ashby, .
V. Bunstead, .
T. Carter,
T. Center,
V. City of Buffalo,
V. Clagett,

895,

2054,

1030

1341

977

1626

970

1034, 1035

. 383

1995, 2003

. 327

. 945

. 1527

2058, 2072

. 84

1238, 1242

. 699

861, 863

. 592

1035,1039,1141

1501, 1503

. 1632

. 384

1795, 1797

. 1090

1644, 1647

. 980

PAGB

Hall V. Clarke, .... 1792

V. Crowly 2059

V. Delaplaine, . 1129, 1152
V. Fisher, .... 1395
V. Hall, 330, 340, 418, 1212,

1251, 1253, 1273, 1804
. 1729

V. Holden,

V. Jackson,

y. Jewell,

V. Lay, .

V. Patterson,

V. Perkins,

V. Piddock,

V. Stufdivant,

y. Wljiston, .

v. Wilson,
HaUes v. Bell,
Hallesy v. Jackson,
Hallett T. Collins, .
V. Holmes,
Halliday v. Somerville, .
Halloran v. Whitcomb, .
Hallowell's Appeal,

Estate, 324,

. 1628

. 2006

. 1492

1216, 1265

1238

895, 910, 911, 916

1105, 1112, 2070

. 1355

. 589

. 1631

. 2006

1244, 1245

1909

352

1668

324

326, 327,

331, 338, 339, 351, 654
Halsey v. Beed, . 272, 283, 285, 318
V. yan Amringe, . 543, 549
Halstead v. Bank of Kentucky, 33,

65, 73, 83, 103, 206

V. Brown, . 1906, 1913

Haltz V. Wright, . . . .966

Ham V. Ham, .... 1732

Hamaker v. Sohroers, . 2059, 2067

Hamburg v. Litchfield, . . . 187

Hamet v. Dundas, 1987, 1989, 1995, 1997

Hamilton v. Asslin, . . . 980

V. Cummings, 1350, 1354

V. Grant, . . . 1038

V. Jones, ... 978

V. Lycoming Insurance

Company, 1080,1082

V. Marlborough, . . 1987

V. Nutt, , ... 38

V. Rogers, . 155, 1612, 1613

V. Winterrowd, 1912, 1913

V. Worley, . . .332

V. Wright, . . .1631

Hammer v. M'Eldowney, . . 1031

Hammond v. Christie, . . . 1729

V. Hammond, . . 1802

Hamper, Ex parte, . . . 400

Hampson v. Ware, . . . 1373

Hampstead v. Watkins, . . . 1361

Hampton v. Brevard, . . . 309

V.Levy, 92,309,313,1900

y. M'Connell, . . 1399

y. Ourton, . . . 2052

Hancock v. Bryant, . . . 1905

v. Carleton, . .1134, 2045

Handy v. Van Harlingen, . . 1215

Haney v. lltlast, .... 1213

Hankerson y. Barbour, . . . 148

Hanley v. Morse 182

Hanly v. Eoberts 329

TABLE OF AMEBICAN CASES.

Ixxv

Hannah's Appeal, .

. 352

Hannan v. Oxley, . . ' .

. 900

Hannegan v. Hannah, •

. 262

Hansel! v. Lutz, .

283, 284

Hanser v. Lash,

. 1987

Hanson v. Chapman,

. 1501

V. Crawley,

306, 1908

V. Willard,

907, 908

Hanway v. Thompson, .

. 1987

Hapgood V. Jenuison, .

. 565

Harberry v. Smith,

. 1642

Harbers v. Gadsden,

. 1146

Harbert v. Hanrick,

. 39

Harbold v. Kuster,

971, 974

Harbrough v. Tatem,

. 2063

Hardee v. Howard,

. 2055

Harding v. Handy, 1215, 1233

1235, 1260

, V. Harding,

. 1261

V. Lamed,

1802, 1803

Hardington v. Nichols, .

. 78

Hardy v. Mills, .

. 900

V. Summers,

182, 1412

Hare v. Lowe,

. 1384

Hargood v. "WUls, .

. 1501

Harker v. Conrad,

. 309

Harkle v. Eoyal Exchange '

jisur-

ance Co.,

. 981

Harlan, In re.

. 552

Harlan v. Seaton, .

. 209

V. Wingate,

. 1361

Harland's Accounts,

. 555, 556

Case,

. 1500

Harley v. Bice,

502, 503

Harman v Kemsen,

. 1391

Harmon v. Jones, .

. 1631

Harmony v. Bingham, .

. 1245

Hamsbarger v. Kinney,

. 1333

Hamsberger v. Geiger, .

1909, 1913

Harper's Appeal, 965, 966,

1983,

20C3,

2005, 2011

Harper v. Phelps, .

. 1862

V. Eeno, . 100, 1(

)1, 206, 213

Harrell v. Harrell, 1266, 1273

,1274,1276

Harriman v. Egbert,

1905, 1906

Harrington v. Allen,

. 37

V. Du Chatel,

. 1361

V. Harrington,

. 198

v. Slade, .

. 195

Harris v. Arnold, .

208, 223

V. Brooks, . . 994,

1913, 1917

V. Carter, .

. 194

V. Clark, .

1650, 1653

V. Columbiana Ins. Cc

, . 993

V. Crawford,

. 272

V. Delamar,

. 953

V. Fly, . . lOi

Q, 189, 351

V. Givin, -

. 1371

V. Ingedew,

. 106

V. Knickerbocker, 97^

, 979, 1027

V. Martin, . . S8

7, 588, 590

V. Norton, .

37, 82

V. Parker, .

588, 589

V. Eeece, .

. 982

V. Kickett,

949

Harris v. Euce,

V. Sangston,
V. Tyson, .

Harrison v. Carhelin,

V. Cochelin, 32,

V. Courtland,
V. Foster,
v.. Guest, .
V. Harrison,
v. Howard,
V. Lemon,
v. Price,
V. Rowan,
V. Talbot,
V. Town, .
Harshey v. Blackmar,
Hart T. Bank,

V. Chalker, .
V. Clowser,
V. Gray,
y. Homiler, .
V. Miller,
T. Ten Eyck,
V. Western B. R., .
Hartford Insurance Company

Van Buskirk, .... 1666

Hartly v. Taply 1628

Hartman v. Danver, . 1911, 1913
Hartop V. Wbitroore, . . 804, 815
Hartshorn v. Day, .... 961
Hartson v. Davenport, . . . 1333
Harvard College v. Amory, 701,

PAGE

. 980

. 1412

1032, 1033

. 94

94, 222,

223, 226, 227

. 1918

. 705

1233, 1242, 1244

1857, 1858

. 993

. 1988

. 1906

1282

994, 1006,' 1026

. 1032

1370, 1371, 1375

. 42, 84, 90

. 205

306, 1908

. 1494

. 2044

. 947

103, 104

1645, 1669

718, 1802

Harvey v. Graham,

. 337

V. Mount, .

. 1214

V. Pecks, .

. 1244

V. Stilton, .

. 1388

V. Sullens, 1

274, 1276, 1285

V. Woodhouse,

. 294

Harwood v. Boardman,

. 565

V. Kirby,

. 918, 919

V. Tucker,

. 1652

Hasbrouck v. Tappen,

. 1021

Haskell V. Allen, .

. 860

V. Butler, .

. 1246

Hassam v. Barrett,

1983, 1996

V. Day,

. 901

Hassart v. Eowe, .

. 1503

Hassell v. GriflSn, .

423, 424, 427

V. Hassell,

. 350

Hassenclever v. Tucker,

. 349, 352

Hassie v. Congregation,

. 1630

Hastings' Case, . 260,

262, 263,

265, 267, 269

V. Cutler,

. . 152

V. Steyena,

.-. 288

Hatch V. Bigelow, . >' '

. 182

V. Cobb,

1135, 115X

y. Hatch, . .,

. 1220, 1221

Hatley V. Chamberlain,

. 1494

Hatton V. Grey,

. 1092

Hauberger v. Eoot,

. 800

Haughwotit v. Murphy,

. . 75, 78

Ixxvi

TABLE OF AMERICAN CASES.

Haughwout V. Pomeroy, 1108, 1111, 1154
Hauralty v. Warren, . 982, 1090, 1150

181
. 1794
. 667
. 1106
. 403

1203, 1212
. 104
. 1097
. 221
. 317
. 1938

1628, 1649

. 106

154, 1216, 1348

. 1823

. 259, 262

Haurick v. Powell,
Hausfir v. Lehman,
Havens v. Havens,
Haverstick v. ErieOas Co.,
Hawkeye Mills v. Conklin,
Hawkins' Appeal, .
V. Embry,
V. Holmes,
Hawkinson v. Barbour,
Hawks V. Geddis, .
Hawley v. Bradford,
V. Bristol, .
V. Bullock,
V. Cramer,
V. James, .
V. Mancius,

V. Soper, . . . .896

Hay V. Estell, . . . .903

Hay den v. Brown, .... 1908

V. Bucklin, . . .193

V. Moore 1376

Haydon v. Goode, .... 255
Hayes v. Harmony Grove Ceme-
tery 1118

V. Jackson, . . 326, 334, 340

V. Thorn, . . . . 1719

V. Wells, . 1909, 1911, 1916

Haynes v. Covington, . . . 1899

Hays V. Henderson, . . . 1038

V. HoUis, .... 1034

V. McGuire, . . ... 93

V. Ward, 279, 319, 1336, 1901, 1904

Hayworth v. Worthington, . . 1990

Hazard v. Irwin, . 963, 1017, 1351

Hazelrig v. Huston, . . . 1149

Head v. Egerton, .... 63

V. Goodwin, . . 1610, 1612

Headly v. Chapin, . . . 2008

Healy v. Toppan, 698, 702, 703,

706, 710, 716, 720
Heard v. Bowers, .... 2064
V. Horton, . . . .509
Hearn v. Boss, .... 572
V. Tenant, .... 1114
Hearns v. Savage, .... 588
Hearsley v. Cole, .... 1910
Hearst v. Kuydenhall, . . . 1823

Heath v. West 291

V. Williams, . . . 1995
Heathcoat v. Paignon, . 1237, 1238

Heatley v. Finster, . . 82, 193

Heck V. Sheiner 1344

Heckard v. Sayre, . . 1119, 1125

Heckert's Appeal, . . . 552, 558
Heckrote v. Barnard, . 1358, 1375

Hedges v. Everard, . . . 1154
Heilner v. Imbrie, ... 32

Heinricks v. Gehrke, . . . 945
Heister's Appeal, .... 554
Heister v. Fortuer, . 87, 90, 94, 206

V. Madera, 1984, 1987, 1991

Helden v. Pike, . . . .293

PAGE

Helm V. Darby, . . . .388

V. Logan^ .... 99

Helme v. Philadelphia Ins. Co., . 2048

Hemphill's Appeal, . 559, 1801, 1803

Estate, . . 555, 559

Hempstead v. Watkins, . 1333, 1905

Heiickle v. Eoyal Exchange Co., . 957

Henderson v. Barton, . . 383, 388

V. Dickey, . . .989

V. Downing, . 33, 9-5, 99

V. Hays, . . 999, 1038

V. Henderson, . . 1646

V. Herrod, 1667, 1668, 2009

V. Mitchell, . 1373, 1386

V. Simmons, . . 588

V. Vaux, . . 698, 703

Hendriokson's Appeal, . 54, 207, 1673

Hendrickson v. Hinckley, 1329, ,

1330, 1338, 1346

V. Ivins, . . . 1009

V. Van Winkle, 1330, 1335

Hengst's Appeal 1796

Henley v. Hotaling, 1990, 1995,

1996, 2001
Hennell v. KeUand, . . . 1378
Hennessey v. Andrews, . . . 222
Henricks v. Eobinson, . . . 1229

Henry v. Davis,

V. Morgan, .

V. Eainmap,

V. Tupper, .

Henshaw v. Wells,

Hensman v. Fryer,

Henson v. Watts,

1984, 1986, 1997
. 37, 171

. 100, 106, 148

2045, 2047

. 314, 2007

327, 328, 832, 340

1490, 1506, 1510

Hepburn v. Anld, 1116, 1128, 1139, 1143
V. Dunlap, . . . 1117
Hepwill V. Knight, . 1114, 1123
Herbert v. M. & L. Association,

262, 266, 267
. 1798
. 676
. 551
. 206
. 1916
. 1905
1915
259
. 1329
1090, 1091
. 195
. 1912
. 279, 1805
. 578
1361,
■ 1364, 1365
Hetheringtou v. Branch Bank at

Mobile, . . 1900
V. Clark, 72, 81, 208
V. Wright, . . 208
Hewes v. Wiswell, . . 39, 186

Hewitt V. Kuhl, . • . . 1339
Heyer v. Pruyn, . 281, 284, 318, 1337
Heyward v. Cuthbert, . . . 1500
Hibbard v. Eastman, . . . 1335

V. Pigott, .

V. Eeed, .
Hermstead's Appeal,
Herndon v. Kimball,
Hernsberger v. Keirney,
Herrick v. Borst, .

V. Ocean County Bank,
Herriman v. Skillman, .
Herring v. Winans,
Hersey v. Giblett, .
V. Turbett,
Hess V. Cole, .
Estate of,
Hester v. Hester, .
Hestonville Co. v. Shields,

TABLE OP AMERICAN CASES.

Ixxvii

1989

Hibbard v. Kent, .
Hibblewhite v. M'Morine,
Hiokeraon v. M'Fadden,
Hickey v. Burt,
Hickman v. Cook,
Hickok V. Bank,
Hickox V. Lowe,
Hicks V. Hicks,
Hicox V. Graham, .
Higby V. Whittaker,
Higdon V. Thomas,
Higginbotham v. Short,
Higgins V. Carlton, 1266,
Higginson v. Clowes,
High V. Battle,
Highberger v. Stiffler,
Hihn V. Peck,

Hildreth v.EUiott, 1194, 1196
Hill V. Barclay,

V. Buckley,

V. Dey, .

V. Edwards, .

V. Fisher,

V. Gaw, .

V. M'Neill, .

V. Manser,

V. Meeker,

V. Oliphant, .

V. Purnell,

V. School District, .

V. Wiggin,
HiUs V. Loomis,
V. Pierce,
Hinchcliffe v. Hinchcliffe,
Hinde v. Vattier
Hine v. Dodd,
V. Hine,
Hines v. Mullins, .
Hipkins v. Bernard,
Hipp V. Babin,
Hiren v. Hill,
Hise V. Foster,
Hitchcock V. Harrington
Hite V. Hite, . . . ,
Hoag V. McGinnis, 2045, 2054,
Hoagland v. Latourette,
Hoare v. Eennie, .
Hobart V. Stone,
Hobday v. Peters, .
Hobson V. Stevenson,

V. Trevor, .
Hodgdon v. Hubbard,
Hodge V. Hawkins,
Hodges V. Armstrong,
V. Eastman

PAGE

1726

1610

397

1669

680

1905

1995, 1997

. 1986

. 599

. 1136

. 1102

. 915

1267, 1281

996, 1007

32, 82, 89, 102

. 1206

. 1993

1204, 1257

. 1134

. 1148

. 914

1993, 2008

1105, 1106

. 974

1373, 1378

279

209

195

1674

1106

409

1988

1671

819

154

38, 103, 105, 217, 219

. 782, 786, 789

. 1500

575, 576

1350, 1352

. 165

. 2057

. 2007

. 595

2059, 2069

89, 1108

. 1105

832, 833

. 1227

. 1666

1606, 1607

43,84

578, 579

. 278

1671

1105

V. Tennessee Ins. Co., 1986,

1989, 2005

1657, 1670

. 206

. * . .202

2061, 2063, 2068

. . . 278

. 335, 337, 352

. 963

Hodgson V. Anderson,

V. Butts, .

V. Dean, .

V. King, .

V. Stevens,
Hoes V. Van Hoesen,
Hoett V. Holcomb,

PAGE

Hoey V. Kenney, .... 1865
Hofi's Appeal, . . 323, 325, 343
Hoffman V. Beard, . . .902

V. Bond, 902

V. Fry, .... 1002

V. Livingston, . . . 1412

V. Ross, . . . .903

Steam Co. v. Cumberland

Co., .... 1263

Hogan V. Duke, .... 576

V. Reynolds, . . .312

Hogarty v. Lynch, . 1996, 2005

Hoge's Estate, .... 1273

Hogev.Hoge, . . 1731,1733

Hogeboom v. Hussick, . . . 1913

Holbert's Estate, . 599, 1803, 1805

Holbrook V. Wright, ... 62

Holcomb V. Stimpson, . 1704, 1710

Holcombe v. Holcombe, . 571, 1803

Holden v. Parker, . . . .947

Holditch V. Mist, . . . 319, 320

Holdridge v. Gillespie, . . . 1985

Holland's Case, .... 1408

Holland v. Craft, .... 87

V. Fuller, . . .394

V. Trotter, . . . 1368

Holley V. S. G., . . . .547

V. Younge, . . . 944

HoUiday v. Arthur, . . . 1983

V. Franklin Bank, . 93, 215

Hollier v. Eyre, 1898, 1909, 1910,

1913, 1917, 1918
HoUister v. Barkley, . . .103
Hollman v. Bennett, . . . 590
HoUoway v. Love, . . . 1638

Holman's Appeal, 323, 697, 703,

709, 710, 712
Holman v. Sim, . . . 588, 589
Holmes v. Day, . . . .281
V. Dole, .... 1921
V. Field, . . . .510
V. Grant, 1995, 1996, 1997, 2002
V. Holmes, 565, 798, 906,

907, 908, 2052

V. Jersey City, . . . 1408

V. Logan, .... 1504

V. Murtze, .... 408

V. Old Colony Eailroad, . 400

V. Seely, .... 1488

V. Stateler, 1328, 1330, 1335, 1383

V. Stout, . . 33, 181, 182

V. Tresh, . . 1995, 1999

Holroyd v. Marshall, ■ . 1619, 1622

Holt V. Bodey, 312, 1902, 1917, 1918

V. Hogan, .... 1865

V. Rogers, .... 1123

Holton V. Merghen, . 1983, 1997

Holtz' Estate, . . . 509, 510

Home Ins. Co. v. HoweU, . . 1404

Homer v. Shelton, . 706, 707, 708

Honeyman v. Marryatt, . . 1123

Honore v. Blakewell, . . . 189

v.Hutchings, . . . 1997

Hood V. Fahnestock, 43, 147, 170, 185, 188

IXXVlll TABLE

OP AMERICAir OASES.

PAGE

PAOB

Hood y. N. E. B. Co,, .

. 1333

Howard Insurance Company v.

V. New York & New Haven |

Halsey, 145

, 170, 190,

B. R. Co., .

. 1362

191, 192, 293, 299, 308,

V. Sebring, .

. 1396

311, 312

Hoopes V. Bailey, .

. 1996

Howe V. Earl of Dartmouth, 332,

V. Dundas,

. 508, 510

333, 699, 700,

701, 703,

Hoover v. Calhoun,

1101, 1143

715, 717, 720

V. Epler, .

. 278, 287

V. Howe, 1194,

1208, 1211,

V. Hoover, 326,

330, 338,

1239, 1240

351, 352

In re, .

. 90, 548

Hope V. Harmer, ,

663, 668, 669

V. Lawrence,

. 405, 406, 407

V. Henderson,

. . 42

V. Martell, .

1366, 1368, 1380

V. Jones,

. 599

V. Bemena, .

. 1107

Hopkins v. Beebe, . 1

642, 1643, 1650

V. EusseU, .

. 1987

V. Garrard,

. 185, 221

Howell V. Ashmore,

. 32

v. Giliuan,

1091, 1152

V. Borden, .

. 1284

V. Logan,

. 1670

V. Hook,

. 648, 649, 672

V. Marzack,

. 987

V. Eansom, .

1193, 1216, 1217

Hopper V. Lutkins,

. 1344

Howes V. Dehon, .

. 323, 340, 341

Hoppin V. Doty,

. 151

Howey v. Goings, .

. 897, 906, 911

Hopping V. Burnham,

. 93, 222

Howry v. Miller, .

. 87

Hoppiss V. Eskridge, ]

624, 1631, 1636

Howze V. Mallett, .

. 802, 808, 813

Hopwood V. Hopwood,

786, 807, 813

Hoiie V. Carr, 106, 149, 154, 393,

Horn V. Jones,

. 195

395, 404, 1027

V. Ketaltas, .

1986, 1992

Hoy V. AUen,

. 38

Home V. Keenan, .

. 1244

V. BramhoU, 155, 305, 308, 310, 311

V. Lyeth,

. 697

Hoye V. Brewer,

. 323, 352

V. Pritchitt,

. 2005

Hoyle V. Login, .

. 1631

Horner v. Flintoff,

2044, 2063

Hoyt V. Hilton,, .

1492, 1498

V. M'Gaughy,

820, 821, 825

V. Kimball, .

. 1129

Horsburg v. Baker,

. 2045

V. Martin,

. 1985

Horton's Appeal, .

. 393, 408

V. Story,

. 1645

Hosack V. Eogers, 39

2, 544, 545, 549

V. Thompson,

. 1624, 1626

Hoskins v. Everett,

. 396, 403

Hubbard v. Curtis,

. 404, 410

V. Hoskins,

. 799

V. Davis, .

1899, 1905

V. Johnson,

. 395

v. Fisher,

. 564

Hotchkiss V. Auburn E.

E. Co., . 1632

V. Jackson,

. 287

V. Farson,

1037, 1244

V. Lord, .

. 180

Hough V. Cough Ian,

. 1140

Hubbell V. Carpenter,

1906, 1910, 1915

V. Hough, .

. 1246

V. Hubbell,

. 325

V. Hunt,

. 1239

V. Olmstead,

. 564

Houghtailing v. Lewis,

. 944

V. Von Schoening, 1112,

Houghton, Ex parte.

. 579

1129, 1138

V. Houghton,

1193,1194,

Hubbs V. Bancroft,

. 397

1

204, 1250, 1259

Hubby V. Hubby, .

. 950

House V. Beatty, .

. . 1137

Hubett V. Whipple,

. 91

V. Moorman,

. 896

Hudson V. Bartram,

. 1123

V. Thompson,

262, 273

V. Cheatham,

. 104

Houseall's Estate, .

. 395

V. Isbell, .

. 965, 1991

Houser v. Lamont,

965, 1983

V. King, .

1035, 1039

Houston v. Bank, .

. 278

V. Kline, .

1347, 1377

V. Boyston, '

. 1358

V. Plitt, .

. 1625

V. Smith, .

. 1383

V. Wadsworth,

. 709

V. Wolcott,

. 1334

V. Warner,

. 105,146,159

Hovey v. Blanohard,

168, 176

Huffv. Cole, .

. 306, 1908

Howard v. Bank, .

. 1659

Huffman v. Hanna,

. 1112

V. Clark, .

. 306

Y. Hummer,

. 1108

V. Day,

. 1102

V. Hurlburt,

1905, 1906, 1908

V. Harris,

965, 1984

Hugg V. Brown,

. 1339

V. Hopkins,

. 1105

Huggins V. King, .

1368, 1399

V. Howard,

.' 699, 709, 1631

Hughes V. Blake, .

. 103, 106

f. Odell, .

. 1990

V. Boyd, .

. 509

V. Thomas,

. 945, 967, 972

V. Cannon,

. 207

Howard Banking Co. V.

Welo

hman, 1918

V. Debnam,

. 207

TABLE OF AMERICAN CASES,

Ixxix

PAGE

Hughes V. Edwards, 1987, 2006, 2007
V. Fisher, .... 2045

V. Hail 1829

V. Wistar . . . 2053

Hughlett V. Hughiett, . 1794, 1797

Hughson V. Mandeviiie, . 32, 103
Hulings V. Guthrie, . . 98, 224
Huli V. Adams, . . 944, 945, 947
V. Swarthout, . . . 1703

Hulme V. Coles, . . 1908, 1909

Hulman v. Union Canal Co., . 1347

Hultz V. Wright, . . . .967
Hume V. Hume, .... 1726
Humphrey v. Leggett, . . . 1395
V. Hitt, . . . 1900
Humphreys v. Humphreys, . . 666
Humphries v. Bartel, 1362, 1368, 1374
Hunt V. Bishop, .... 1632
T. Farmer's Loan Co., 1391, 1392

V. Grilmore,
v. Hunt,
V. Johnson, ,
T. Knox,
T. Mansfield,
V. Moore,
V. Postlewait,

1344
1213, 1260, 2008
. 204

1910, 1911, 1912
. 293, 299, 302

. 1736

1911, 1912, 1913

V. Kousmanier, 980, 983, 984,
985,989,990,1007,1256,
1617, 1654, 1655, 1656,

1731, 1734, 1735, 1737

V. Townsend,
Hunter's Appeal, .
Hunter v. Aikens, .

V. Bates,

V. Bilyeu, .

v. Clark, .

V. Hatch, .

T. Hunter, .

In re,

V. Jett,

V. Sternbridge,

T. Sumrall,
Huntingdon v. Huntingdon,
v.Kogers,
V. Nicoll,
Huntly T. Smith, .
Hupp V. Hupp,
Hurd V. Eaton,

V. Goodrich, .
T. Spencer, .
Hurlbut V. Phelps,
Hurley v. Brown, .
Hurst V. Kirkbride,
Hurton v. Kennedy,
Huson V. Wallace,
Huss T. Morris,
Husted V. Ayres, .
Huston V. Fortner,

V. Hancock,

V. Williams,
Hut Y. Bank, .
Hutchings v. Hutchings,
Hutchins V. Sprague, .
Hutchinson v. Coleman,

262

. 1409

. 1220

. 1108

993, 1009

. 1899

. 1983

. 1646

1086, 1090, 1094

1900, 1910

. 1857

65, 82
. 1941
. 999
. 1350
. 1119
. 1346
292, 314
. 597
. 1901
. 1727
. 1117
. 967
. 1804
581, 582, 583
983, 989
. 286
. 91
. 265
. 963
. 224
. 595
. 1663
. 1379

Hutchinson v. Moody,
V. Smith,
T, Tindall,
Hutson T. Townsend,
Hyde v. Cooper,
V, Stone,
V. Tanner, .
Hyndman v. Hyndman,
Hyslop V. Kandall,

262,

Ihottson V, Ehoades,
Iddings v. Bruen, .
V. Iddings,
IglehaTt V. Crane, .
Ihmsen's Appeal, .
Illinois V. Eidgway,
Ing V. Brown,
Ingalls V. Morgan,
Inge V. Branch Bank,
Ingersoll v. Sergeant,
Ingham v. Kirpatrick,
Ingraham v. Kirkpatrick,
Ingram v, Fraley,
v. Morgan,
V. Phillips,
V. Wyatt, 1276, 1285, 1286, 1290
Inhabitants of Whitefield v. Long-
fellow, . . . 1248, 1249
Inloe V. Harvy,
Innes v. Johnson, .
V. Monroe, .
Insurance Co. v. Bailey,
V. Loomis,
V. Smith,
V. Woodruff,
Ipswich Man. Co. v. Story,
Irby V. Graham, .
Irick V. Black, 281, 290, 317, 318,

1337, 1921

PAGE
. 1921

. 393
. 1244

1507, 1517

. 1030

. 1487

993

1984, 1985
. 1626

. 163

. 543

. 1284

293

180li 1803
. 1914
. 1990
263, 267
. 1921

49, 69, 70
. 84
. 580
. 1862

213

. 195
656, 657, 658
. 948
. 1353
. 1353
. 317
. 314
. 2008
418, 426

V. Fulton,
Irish V. Johnston,

V, Smith,
Irnel v. Newman,
Irvin V. Smith,
Irving V. M'Cay,
Irwin's Appeal,
Irwin V. Keen,
Isaac's Estate,
Isaacs Y. Taylor;
Ish V. Crane, .
Ives V. Hazard,
Ivey V. Coleman,

979, 1149

1283

1285

1669

204

548

1792, 1793, 1797

953, 1259, 1261

. 598

. 1492

. 1957

1028, 1092, 1094, 1100

. 588, 589, 1805

Jack V. King,
Jackman v. Bowker,
Jackson V. Andrews,
V. Baker, .
V. Blodget,
V, Bronson,
V. Burgott,
V. Cadwell,
V, Carsweli,
V. Chamberlain,

, 1372

. 1671

. 195, 1631

. 2063

1667, 2008

. 2008

38

82, 146, 154

. 2007

. , 94, 225

Ixxx

TABLE OF AMERICAN CASES.

FAOE

Jackson v. Combs 1487

V. Cornell, . . .420
V. Craft, . ... 2007

V. Davy, . . 1487, 1488
V. Demont, . . . 1631
V. Dewett, . . . 2006

V. Dubois, . . 90, 204
V. Diitton, . . . 1236
T. Given, .... 40
V. Green, .... 1986
V. Hills, . . . 961, 1631
V. Innes, .... 1941
V. Jackson, . . 569, 1281
V. Jones, .... 1415
V. Ketcham, . . .194
V. King, . . 1242, 1281
V. Kitehman, . . . 1631
V. Kniffen, . . . 1284
V. Leaf, .... 1393
V. Leek, . . . 168, 213
V. Legion, . . . 1116

V. Ligon, 1119, 1129, 1135,

1138, 1143
V. Lodge, .... 965
V. Lues, . . . .215
V. M'Uhesney, . . .107
V. M'Ginness, . . . 2014
V. Myers, .
V. Paige, .
V. Parker,
V. Peirce, .
V. Post, 38, 40, 41,

V. Eowe, .
V. Sackett,
V. Sharp, .
V. Soser, .
V. Summer ville,
V. Town, .
V. Tattle, .
V. Valkenburgh,

. 213

. 1941

. 919

89,

94, 212

. 66, 101

. 281

168, 170, 213

. 1625

. 43, 1396

89, 94

. 38, 220

38, 40,

162, 218,

220

V. "Warner, . . . 201

V. Warren, . . . 195

V. Winslow, . 80, 82, 168

Jacky V. Butler, . . . .428

Jacobs V. Lake, .... 1147

V. Morange, . . . 1735

Jacobson v. Legrange, . . . 825

James v. Bird, .... 1236

V. Brown, . . . 310, 311

v. Corker, . . . .593

V. Hubbard, 293, 299, 305,

314, 317
. 289
1412, 1414
. 104
43, 204, 205, 207
. 1984
. 1369
. 1265

V. May, 1335, 1356, 1378, 1381

V. Pothaus, . . . 1704

Janny v. Alden, .... 1491

V. Isaacs,
V. Lemley, .
V. M'Kernon,
V. Morey, .
V. Oades,
Jamison v. Deshields,
V. Jamison,

PAaB
Jaques v. "Weeks, 37, 38, 93, 95, 98,
146, 147, 182, 185, 188, 207, 208,
209, 213, 214, 223, 224, 225, 226,

1984, 1993, 2005
Jarboe v. Kepler, .... 1368
Jarvis v. Aikens, . . . 211, 1610
V. Brooks, 392, 393, 394, 395,

409, 422

V. Hyatt,
V. Smith,
V. Sutton,
V. Woodruff,
JeflF V. "Wood,
Jeffers v. Lampson,
Jeffreys v. Jeffreys,
Jeiiries v. Evans, .
V. Lawson,
Jencks v. Alexander,
Jenkins v. Bodley, .
V. Clark, .
V. Eldridge,
V. Fickling,
V. Freyer,
V. Jenkins,
V. Pye, . 1204,
V. Van Schaack,
V. "Walter,
Jenks V. Fritz,
Jennes v. Emerson,
Jenning v. Wood, .
Jennings v. Connell,
V. Davis, .
Jennison v. Hapgood,
Jennisons v. Leonard,
Jermon v. Moffitt, .
Jerrard v. Sanders,
Jervois v. Silk,
Jessill v. Williamsburgh
Jewett V. Lincoln, .
V. Palmer, .
V. Woodward,
Jimison v. Gray, .
Jody, Succession of,
Johns V. Dodge,
v. Johns,
V. Keardon, 206,
Johnson v. Ball, .

V. Bloodgood,
V. Burnett,
V. Clark, .
V. Cleaves,
V. Corbett,
V. Cornett,
V. Cowen,
V. Dodge,
V. Evans, .
T. Glancy,
V. Graves,
V. Hogan,
V. Holdsworth,
V. Hopkins,
V. Hubbell,
V. Johnson,
V. Kent, .

1909, 1911

259, 314, 321

. 1719

1991, 2006

. 831

1605, 1606

. 658

. 1672

. 1797

. 1985

99, 101, 182

1900, 1905

. 565

■ 582, 584

293, 296

. 589

1263, 1264

. 1805

. 1734

. 1491

. 207

. 1216

. 595

. 565

. 1126

1628, 1642

32, 64, 102

1505, 1506

Ins. Co., 1670

. 62

36, 75, 80, 82, 100

540, 543, 548

. 2057

. 1792

. 1100

. 700

1938, 1939

. 816

. 1624

. 1626

965, 1995

. 670

286,

. 1793
. 2008
. 87
. 1102
. 408
. 182
. 83
. 593
. 1669
. 1137
. 1039
1145, 1487, 1794
. 1343

TABLE OF AMERICAN CASES.

Ixxxi

PAGE

Johnson v. Lamotte, . . . 1015

T. Lewis 2008

V. Ljron, .... 1330
V. Milksop, . . . 344
V. Mills, .... 1901
V. Person, . . . 104
V. Planters' Bank, . . 1904
V. Eailway Co., . . 1103
V. Bice, . . . .308
v. Searcy, . . . 1899

V. Sherman, . . . 2008
V. Shulters, . . .349
V. Stagg, . . . .204
T. Terry, 1506, 1507, 1509,

1510, 1511, 1516, 1528
V. Thwaltt, . . .189
V. White, . . . .296
Johnston v. Purnier, . . . 1726
V. Gray, . . 1986, 1991

V. Gwathmey, . . 189

V. Haynes, . . .579
Y. Huston, . . . 1988
V. Phcenix Ins. Co., . 1671
JoUand v. Stainbridge, 103, 217, 219
Jones' Appeal, . 1793,1795,1800

V. Badley,

V. Banford, .

V. Broadhurst,

V. Brown,

V. Bullock, .

Case,

V. Cowles,

V. Crawley, .

V. Creveling,

V. Dyer,

V. Fleming, .

V. Gorman, .

V. Grant,

V. Hardesty,

In re, .

V. Jones, 45, 46,

V. Lackland,

V. Lewis,

V. Lusk,

V. Mason,

V. Monroe, .

V. Myrick, .

V. Noble,

V. Powles, .

V. Eandall, .

V. Richards,

V. Eichardson,

978

168, 205

. 287

. 1912

. 1901

544, 586

. 1412

. 955

. 738

. 588

. 1917

. 1236

. 1394

. 1673

544, 586

61, 67, 104, 166

382

1791

393, 396, 401, 403, 404

783, 799, 808

. 983, 1735

293

1094," 1129, 1130

47, 66

. 1709

. 1616

1605, 1610,

1612, 1613
V. Eobbins, 1078, 1089, 1112,

1117, 1131, 1134
V. Sasser, .... 1362

V. Scott,
V. Selby,
V. Shakelford,
V. Simmons, .
V. Smith,
V. Statham, .
V. Stockett, .
V. Thomas, .

384

. 1328

1147, 1153

. 698

160, 167, 1229, 1264

965, 976, 977, 998

573

' 1220, 2050

Jones V. Truesdell,
V. Whitney, .
V. Williams,
V. Witter,
V. ZollicofFer,
Jordan v. Black, .

V. Cooper, .

V. Deaton, .

V. Fenno, .

V. Laftin, .

V. Mead, .

V. Sawkins,

V. Stevens, .

V. Trumbo,
Joslin T. Cower,
Joslyn T. Smith,
Jourdan v. Jourdan,
Judah V. Judd,
Judd v. Hatch,
Judges V. Eees,
Judson V. Corcoran,

PAGE

1913
1393
575
1642
32, 44, 316
. 1672
. 1106
. 1028
. 1990
. 1384
. 98
996, 1006
. 1736
. 1899
. 43
. 1899
1707, 1726
. 1666
. 1415
. 1983
51, 55, 1660

Jumel V. Jumel, 280, 283, 284, 235, 1337

Juner v. Johnson,
Jurney v. Cowan
Justice V. Lang,
V. Scott,
Juvenal v. Jackson

666

. 1804

1077, 1078, 1093

. 1348

79

Juzan V. Toulmin, 1017, 1237, 1238, 1245

Kaign v. Puller 1918

Kamena v. Huelby, ... 57
Kane v. Denniston, . . .192
In re, . . . 1500, 1504
Karker v. Haverly, . . . 1131
Katz V. Moon, .... 1330
KaUffitt V. Moderwell, . . . 1491

Kay, In re, 1496

Kearney v. Sasscer, . . . 1376

Kee V. Kee, 575

Keebler, Ex parte, . . . 1503
Keefe v. Eice, .... 1373
Keeling v. Brown, . . 332, 350
Keenan v. Missouri Insurance Com-
pany, 170

Keily V. Monck, . . . 503, 508
Keim v. Eobeson, .... 344
Keiser v. Heuston, . . . 204

Keisselback v. Livingston, 966, 981,

1007, 1010
Kelchner v. Forney,
Kellam v. Janson,

Keller v. Fisher,

V, Nutz,
KeUey v. Hobbs, .

V. M'Guire,
KeUogg V. Ames, .
KeUogg's case,
Kelly's AppejJ,
Kelly V. Association,

V. Bryan, 965,

V. Davis,
V. Kelly, .
V. Mills,

. 288
. 94
1112, 1116
. 208
. 1247
. 1238
. 1674
. 544
398, 409, 413
. 1703
1017, 1989,

1990, 1995

. 590

. 828

. 224, 225, 226

VOL. II. — F

Ixxxii

TABLE OF AMERICAN CASES.

PAGB

Kelsey v. Deyo, . . . 337, 347

V. Western, . . .323

Kemble v. Farren, 2044, 2063, 2066

Kemp V. Ball 289

V. Earl, .... 1987
V. Humphreys, . . . 1119
Kempshall v. Stone, . 1151, 1153
Ken V. Lucas, . . 1710, 1711
Kenan v. Paul, .... 586
Kendall v. Almy, .... 1029
•Ex parte, 264, 273, 274,

275, 276, 391

V. Laurence, . . . 186

V. New England Co., 262, 568

V . United States, 1636, 1637

V. Winsor, . 1402, 1403

Kendircky v. Jervis, . . . 1667

Kennedy v. Davis, . . . 1703

V. areen, 164, 168, 170,

177, 179
V. Kennedy, 1012, 1213,

1214, 1236, 1260

V. Lee, .... 1105

V. Northrop, . . .209

T. Ware, . . . 1645

Kenney v. UdaU, .... 1246

Kensington, Ex parte, . . . 425

Kent V. Agard, .... 1988

V. Carcand, .... 1146

V. Harcourt, .... 1631

V. Lesley, _. . 1017, 1991

V. Summerville, . . . 671

Kenyon v. Welty, . . 1734, 1735

Kerns v. Swope, . . 151, 153, 206

Kerr v. Day, 182, 187, 188, 1084,

1085, 1090, 1091, 1108,'

1112, 1141, 1154

V. Gilmore 1998

V. Kilpatrick, . . . 1792
V. Kitchen, . . . 189, 192
V. Purdy, 1090, 1091, 1129,

1130, 1131
v. Waters, .... 1792
Kersey's case, .... 341
Kershaw v. Bank, .... 280
Kessil V. Abbetis, .... 1641
Ketchum v. Durkee, . . . 397

Key T. Knott 960

V. M'Cleary, .... 1988
V. Simpson, .
V. Vattier,
Key City v. Munsell,
Keys V. Test, .
V. West,
Keyser v. Harbeck,
Kidd V. Temple, .
Kidder v. Blake, .

V. Chamberlain,
V. Kidder, .

Kiddle v. Hammond,
Kieffer v. Ehler, .
Kiersted v. Avery,
Kilborn v. Robbing,

. 1639
. 1408
. 180
. 75
. 61
. 2007
1720, 1723
. 1031
. 831

306, 321
. 583

196, 197
84,90
290, 293, 297, 303

Kildare v. Eustace,
Kilgore v. Crawford,
Kilheffer v. Herr, .
Kilpatrick v. M'Donald,
Kimball v. Eaton, .
V. Fenner,
V. M'Donald,
V. Keding,
V. Thompson,
Kincaid v. Meadows,
Kindle v. Slate,
King V. Baldwin, 1359,

V. Bardeau, .

V. Bell,

V. Clark,

V. Delaval, .

V. Doolittle, .

V. Earp,

V. Fowler,

V. Greenhill,1511,

V. Hamilton, .

V. Johnson, .

V. Kincer,

V. King,

V. Knapp,

V. M'Vickar,

V. Manneville,

V. Euekman, .

V. Smith,

V. Talbot,

V. Thompson,

V. Ward,

V. Whiton,
Kingdom v. Boakes,
Kingman v. Perkins,
Kingsford v. May, .
Kingsley v. Vernon,
Kinley v. Hall,
V. Hill,

. 18'27
. 919
. 1372
. 1358
. 954
. 106, 108

1641, 1650

. 1801

396, 397, 415

. 1631

. 1914

1363, 1899, 1905

. 1145

193

1338, 1415
. 1513
. 1734
. 1989
. 1674
1515, 1527, 1528
999, 1116, 1117
. 1489

1990, 1995
. 343
. 1143
. 275
. 1515
. 1108
. 1513

ISOl, 1802
. 1155

1511, 1525
. 598
103, 105
. 1653
. 43
. 1913
. 290
. 280

702,

Kinmouth v. Bingham, 698, 701, 702, 716
Kinnard v. Kinnard, . 706, 707, 709
Kinne v. Johnson, .... 1276
Kinney v. Ogden, . . . 1373

Kinsler v. Clark, .... 1412
Kinter v. Jenks, .... 1864
Kip V. Deniston, .... 1800
Kirby v. Harrison, 1119, 1126, 1135,

1136, 1137, 1138, 1139, 1142
V. Porter, . . . 662, 653
V. Schoonmaker, . . . 402
V. Studebacker, . . . 1899
V. Taylor, . . . . 1212
Kirk V. Eddowes, 783, 786, 801,

802, 808, 810

317

84

330

313

1328

258

1400

284, 308, 1337

1804

1671

Kirkman v. Bank of America,
Kirkpatrick v. Muirhead,

V. Kogers,
Kiser v. Euddick, .
Kitten v. Bobbins,
Kittera's Estate,
Kittridge v. Emerson,
Klapworth v. Dressier,
Kleberg v. Bond, .
Klenlan v. Frisbie,

TABLE OF AMEEICAN CASES.

Ixxxiii

■rri • PAGE

Kline V. Bebee, .... 1487
V. Kline, .... 1232
V. M'Guckin, . 1993, 2007

Klyn V. Watkins 1823

Knapp V. Alvord, .... 1653

V. Kaltby, . 2052, 2057, 2063

Knaub t. Essik, . • . . 2007

Knell V. Building Association, . 92

Knickerbocker v. Eagleston, . . 948

Knight T. Bowyer, . . 187, 189

V. Bunn, . . . 963, 989

V. Knight, .... 1863

V. Whitehead, , 1938, 1939

Knott V. Geiger, . . . 213,214

Knouffv. Thompson, . . 192, 204

Knour v. Dick, .... 1341

Kuowles V. Eobbiu, . . . 195

Knowlton v. Bradley, . 1802, 1805

V. Walker, . . . 1996

Knox V. Begdon, .... 598

V. Picket, .... 1792

V. Plummer, . . 182, 221

V. Silloway, .... 40

V.Thompson, . . .182

Koppeuhoffer v. Isaacs, . . 553

Kortright v. Bank, ... 51

Kottman, In re, 1506, 1507, 1524,

1525, 1527
Kountz Y. Kennedy,
Kramer v. Arthurs,
Kreitzer v. AVoodson,
EJrider y. Boyer, .
V. Lafferty,
Kuchenbeiser v. Bechert,
Kuhn V, Lair,
V. Law,
V. Myers,
V. North,
Kunkle V. Wolfsberger,

Kurtz V. Hibner,
Kyle V. Bamett,

V. Tait, .
Kyner v. Kyner,

1908

46, 68, 69

. 1230

. 814

181, 182, 220, 221

. 980

. 421

. 427

. 2054

280, 288, 290

79, 82,

1965, 1987

. 900, 916

. 1805

. 103

. 260, 263

La Farge v. Herter, 1913, 1914, 1915
La Farge Fire Ins. Co. v. Bell 175,

297 311
Labdell v. Labdell, . . . 1028

Labenheimer v. Mann,
Lacey v. Clements,
Lacket v. Triplett, .
Lacy V. East India Co.,
V. Wilson,

Ladd V. Griswold, 393, 397, 407, 418, 419

Ladley v. Creighton,
Lafordy v. Jelly, .
Laimon v. Smith, .
Laing v. Brevard, .
Lake v. Craddock, .

V. Dove,

V. Ranney, .
Lally V. Holland, .
Lamb's Appeal,

2068

1804

1343

309

33,40

206

1638

1642

313

395

93

1276, 1285, 1288
. 205
551, 552

Lamb v. Goodwin

V. Kelly,
Lambert v. Watson
Lamborn v. Moore,
Lament v. Stinson,
Lampet's Case,
Lampler v. Hall,

PAGE

. 1728

1328

975," 1014, 1015

. 1014

. 146, 153

1605, 1606

1625, 1626

Lampman v. Cochran, 2054, 2058,

2059, 2065, 2066, 2067
Lampton v. Lampton, . . . 104
Lancaster v. Dolan, ... 59
Lancaster Bank v. Miley, . . 395

Landes v. Brant, .

180, 221, 223

Landis v. Scott, . 550, 551, 552', 560

Lane v. Clark,

1391, 1395

V. Coleman, .

. 595

V. Dickeispn,

. 965,1995

V. Kennedy, .

. 1911

V. Ludlow, .

. 90

v. Marshall, .

. 104

Lanfair v. Larifair,

. 1987

V. Sumner,

. 62, 1663

Lang V. Brevard, .

1900, 1905

T. Pettas,

. 1492

Langdon V. Astor, 647,

.661, 664,

672, 182,

784, 790,

795, 801,

808 810,

813, 814, 816, 817

V. Goddard,

. 103

V. Keith,

. 980

V. Lacy, .

. 1659

Lange v. Week,

. 2063

Langford v. Gascoyne,

. 1799

Langley v. Berry, .

. 1663

V. Brown,

. 955

Langton v. Horton,

92, 1614, 1629

V. Waring,

. 1645

Langworthy v. Chadwid

£, . 706, 709

V. Smith,

. . 1914

Lanier v. Wyman,

. 981

Laning v. Cole,

1093, 1100

Lanoy v. Duke of Athol
Lansdale v. Brown,

. 319

. 87

Lansden v. M'Carthy,

. 1630

Lansdown v. Lansdown,

985, 986,

1708, 1717

Lansing v. Capron,

. 2051

V. Eddjr, . ]

L357, 1363, 1373

V. Lansing,

. 547, 1803

Lapham v. Whipple,

. . 947

Lapitino v. De Giglio,

. 1517

Lardner v. Murray,

. 50

LarkiuR v. Biddle, .

980, 983, 986

Larrow v. Beam, .

. 44

Lathrop v. Amherst Bar

ik, 1639, 1640

V. Dale, .

. 279

V. Smalley,

. 570, 571

Latrobe v. Tiernan,

1792, 1795

Lauckner v. Rex, .

. 980

Lauderdale v. HaUook, ,

. 980

Lauer v. Lee,

1023, 1024

LaughUn v. Fairbanks,

. 1671

Lavalette v. Sage, .

. 1037

Laverty v. Moore, .

1154, 1631

Ixxxiv

TABLE OF AMERICAN CASES.

PAGE

Law T. East India Company, . 1901

' V. Henry, .... 1082
■ y. Patterson, . . . 895, 898
Jjawe V. Douglass, .... 1796
Lawl V. Hyde, .... 2048
Lawrence v. Beaubien, . . . 987
V. Butler, . . . 1092
' V. Clark, ... 86

T. M'Calmont, 312, 314, 1031
V. Stratton, . 214, 222, 224
Laws V. Bennett, . . 1084, 1085
Lawson's Appeal, . . . 808, 809
Lawton v. Campion, . . .1715
Lnxton V. Peat, . . 1918, 1920
*Lay V. Barnes, .... 1212
Laythorp v. Bryant, . 1092, 1093
Le Guen v. Gouvemeur, 1334, 1358,

1386, 1387
Le Quie v. French,
Leacli V. Ansbacher,
V. Fobes.
, Leach,

Leahigh v. White,
Leary v. Laflin,
Leavel v. Bettes,
teavett v. Palmer,
V. Wooster,
Leavitt v. Fisher, .

V. Savage, 1909,
Ledyard v. Butler,
Lee, Appellant,

V. Baird,

V. Brook,

V. Buck,

V. Deranda,

V.Dili, .

V. Homer,

V. Insurance Bank,

V. Insurance Co.,

v. Kirby, 1000,

v. Lee, .

V. Overstreet,

V. Pearce,

V. Petillo,

v. Book, .

Succession of,
Lee County v. Eogers,
Leedom v. Plymouth

Company, .
Liceper v. Taylor, .
\ Lefever v. Lefever, 1488,
' Leftwich v. Ome, .
Legard v. Hodge, .
Legh V. Legh,
' Legro V. Staples, .
Leiby's Appeal,
Leigh V. Crump, .
V. Lockwood,

1912,

324, 331

. 653

48, 183

. 1725

88, 2049

. 1996

. 2066

. 1492

. 983

. 347

. 1664

1914, 1921

42, 43

332, 336

. 1368

. 1345

. 1494

. 849

. 1288

. 1156

. 1385

. 1369

1011, 1035, 1141

574, 1273, 1275

2057, 2067

. 1192

. 1388

. 1916

. 592

. 201

Railroad

. 1412

. 1273

1490, 1492, 1493

. 99, 100

Leiman's' Estate,
■ Leitch V. Wells,
Leitensdorfer v. Delphy
Lemon v. Hall,
Leunig's Estate,

1615

1669

1647

. 1502

. 999

. 578

. 350, 351

573

193, 195, 196

. 993

. 575

. 344

Lennox v. Prout, . 103,

V. Eoberts,
Lenoir v. Winn,
Leonard v. Bates, .

V. Leonard,
Leslie v. Guthrie, .
Lester v. Hoskins,
Letcher v. Cosby, .
Lett V. Morris,
Lettimore v. Simmons,
Leverton v. Waters,
Levi V. Levi, .
V. Linds,
Levison v. Beirne,
Lewiu V. Guest,
Lewis V. Bacon,

V. Baird,

V. Berry,

V. Bradford,

V. Cooper,

V. Darden,

V. Darling,

V. Deven,

V. Hanchman,

V. Harbinger

v. J. A., .

V. Jones,

V. Levy,

V. Lewis,

v. Madisons,

V. Mason,

V. Mew,

V. Palmer, .

y. Starke,

V. Yale,
Ley V. Huber, . 1116
Lichtenthaler v. Thompson,
Liddall v. M'Vickar, .
Lidderdale v. Bobinson,
Lieby v. Wolf,
Lies V. Stub, .
Ligal V. Miller,

PAGE

1900, 1915
. 1670
. 1792
. 963

1722, 1723
. 1614
. 1381
. 999

1643, 1648

1624, 1625
904, 905
. 1107
. 1123
. 1865
. 1145
. 383
. 205
. 1647
148, 182
. 1734
. 1863
349, 352

347

. 1917

. 1921

. 1216

. 944

. 1408

. 1639

. 197

1280, 1282

. 197

. 306

. 1667

. 1151

1117, 1118

1901

570

1797

208

1707, 1725, 1727

. 1019

Light V. Light, . . 983, 986, 988
Lightfoot V. Lightfoot, 327, 332, 335, 652
Lightner v. Menzel, . . . 2067
V. Mooney, 40, 81, 182, 208
Lile, Succession of, ... 592
Lillard v. Euckers, . 96, 97, 224
Lilley v. Fifty Associates, 2047, 2048

Lilly V. Gurry,
Limburger v. Eauch,
Lincoln v. Wright,
Lindley v. Lacy, .
Lindsay v. Annesley,
V. Bates, .
V. Howerton,
V. Jackson,

V. Price, .
Lindsey v. Lindsey,

V. Wilson,
Lineman's Estate, .
Lineman; In re,
Linsly V. Lovely, .

975

1338

647, 668
. 1276
976, 977
. 949
. 2061
. 1667
. 576

1341,

1346, 1347
. 1657

1194, 1242

. 1672

37, 148, 149

. 37

. 946

TABLE OF AMERICAN CASES.

IxxxY

Linton v. Potts,

V. AValker, .
Linzee v. Mixer, .
Liscombe v. Eue, .
Lister v. Lister,
Little V. Bardwell,
V. Bennett, .
V. Marsh,
Littlefield v. Smith,
V. Story,
Littleton v. Thompson,
Livingston's Case, .
Livingston v. Dean,
In re, .

55,

PAGE
. 1112

. 1487
. 2049
. 895
. 915
. 606
1857, 1865
. 1415
. 1666
. 1669
. 287
540, 545
58, 59, 1672
. 547

v. Livingston, 327, 339,

1343, 1344, 1350
v. Newkirk, . . 323, 339
v. Penn Iron Co., . 1636

V. Proseus,
V. Stickles,
V. Stubb,
V. Tompkins,
Lloyd V. Branton, .

V. Collett, .

V. Galbraith.

V. Gordon,

V. Harvey,

V. Heath,

V. Lloyd,

V. Lynch,

v. Eippingale,

V. Eowe,

V. Watson, .

V. Wheatley,
Locke V. Palmer,

V. Eobinson,

V. United States,

V. Whitney,
Lockhart v. Power,
Lockridge v. Upton,
Lockwood V. Stradler,
Lodge V. Simonton,

V. Truman, .

V. Tysley, .
Logan V. Anderson,

V. Logan, .

V. Patrick, .
V. Eeynolds,
V. Troutman,
Lohier v. Loring, .
Loker v. EoUe,
Lokerson v. Stillwell,
London v. Blythe, .
London Eailway Co. v.
Long V. Dallorhid,

V. Dennis,

V. Long,

1631

2049

1672

2048

508

1120, 1136

270, 272, 273, 275

. 897

786, 788, 810

. 1415

212 337

99,100,106,107,108

1123

569

1374

999

1984, 1995, 1999

1502

1899, 1914, 1917

. 944

. 898

1905, 1906

. 1865

. 192, 197

1988, 1989

. 89

259, 260, 322

. 581

. 1366

. 290

. 595

. 1910

. 863

. 1990

. 1216

Winter, . 1027

208

503

1213, 1215, 1236

V. Mulford, 1192, 1193, 1195,
1212, 1213, 1226, 1231,

1234, 1245, 1263, 1264
V. New York Central E. E.

Company, .... 945
V. Norcom, . . 1501, 1503
V. Shakleford, 1707, 1708, 1725

Long V. Short,
V. Towl,
Longley v. Hall, .
Longridge v. Darville,
Longwell v. Bentley,
Longworth v. Taylor,
Loomer v. Wheelwright,

PAOE

. 326, 33?
. 2064
. 565
. 1723
898, 904, 919
1113, llie
. 1939

Loomis' Appeal, . 324, 325, 330, 351

V. Fay, .... 1902

V. Loomis, 1389, 1665, 1671

V. Eiley, . . . .195

Lord V. Hough, . 1490, 1492, 1499

V. Ocean Bank, . . . 312

Abington v. Beitler, . . 991

Cranstown v. Johnson, . . 1829

Durham v. Wharton, . . 787

Glenorchy v. Bosville, 981,

985, 987, 989
Irnham v. Child, 963, 966, 987,

1000, 1001, 1007, 1013
Paget's Case, .... 88
PortarUngton v. Soulby, . 1829

701

Loring v. Loring,

V. Sumner, .
Losey v. Simpson, .
Loss V. Ob-y, .
Loud V. Darling, .
Loudon V. Tiffany, .
Loury v. M'Kenney,
LouvaUe v. Menagh,
Love V. Cobb,

V. Taylor,
Lovejoy v. Bowers,
Lovell v. Minot,
Lovely v. Caldwell,
Loveridge v. Cooper,
Low V. Blodgett,

V. Hutchinson,
V. Peskett,
V. Pratt, .
V. Treadwell, .
Lowe V. Morris,
V. Nolle,
V. Nulte,

V. Peers, 502, 503
V. Williamson,
Lowery v. Steward,
Lowndes v. Chisolm,
Lojfrie's Appeal, .
Lowry v. Flue,

V. Mehafly,
v. Sloan,
Lowther v. Carlton,

V. Lowther,
Lucas V. Bank of Darien,
V. Barrett, .
V. King,
V. Lockhart,
V. Mitchell, .
V. Slierer,
V. Waul,
V. Wolbert, .
Lucey v. Lucey,

V. M'NeU, .

717

1859

. 675

36, 75, 208

. 1001

1631, 1632

. 1671

. 302

. 916

. 999

. 85

. 395

718, 1802

. 1668

. 52

279, 291

. 1638

. 382

. 197

. 1139

. 587

2051, 2082, 2089

. 2070

506,2052, 2069

1267, 1282

1652, 165^

987, 1734

552, 560

. 16^

1098, 1099

. 1729

. 155

. 1237

. 104

. 10^2

898, 900

. 1857

. 999

. 137,3

13714

271

1646

1670

1097,

1362,

IXXXTl T A B L ^

OF AMEEICAN CASES.

PAGE

PAGE

Luch's Appeal,

205

, 206, 1993

M'Caw, V. Blunt, .

. 585

Luckett V. Williamson,

. 1117

M'Cay'v. Carrington,

. 1123

LuderS v. Ansty, .

. 1082

M'Cennie v. Rutherford,

1672

Ludington v. Taft,

. 1388

M'Clellan v. Darragh, .

. 1136

Ludlam's Appeal, .

. 652

V. Kennedy, .

1703, 1704

Estate, .

. 664

V. Kinaird,

. 1347

Ludlow V. Cooper, .

. 1136

M'Clellen v. Hetherington,

. 582

V. Niss,

. 226

M'Clintock v. Laine,

. 1028

Ludwig V. Highley,

72,88

V. M'Clintock,

. 2002

LuflF V. Pope, .

. 1680

M'Closkey v. M'Cormick,

. 979

Luken's Appeal, .

560,

1213, 1805

M'Clure v. Jaffrcy,

. 944

Lund V. Lund,

. 564, 1996

V. Mansell,

. 1710

Lunn V. Thornton,

1605,

1610, 1618

v. Miller,

. 1328

Lunt V. Hopkins, .

. 335

V. Thistle,

. 93

Luptori T. Lupton,

347, 349, 350

V. White,

. 1991

Lutton V. Hesson, .

. 108,109

MCollum V. Hinckley, .

. 1904

Luxford's Case,

. 1717

M' Comas v. Easley,

1000, 1028

Lyday v. Douple, .

. 1330

M'Comb V. Kitridge,

1906, 1912

Lyman's Estate,

. 39

M'Combie v. Davis,

. 61

Lyman v. Smith, .

. 2009

M'Combs V. M'Kennan,

. 1025

V. United States

Ins

. Co..

M'Connell v. Brilhart, 1093,

1102, 1146

980, 981, 993

V. Wenrich, .

55, 56

v. Utica Ins. Co.

. 993

M'Cord V. M'Clintock, .

. 1391

Lynch v. Clements,

1276, 1281

V. Ochiltree,

. 1521

v. Dearth, .

44, 212

M'Corkle v. Brown,

1018, 1023

Lynde v. Thompson, 2

053,"

2055,

M'Cormick's Appeal,

270, 426

2057,

2061, 2068

M'Cormick v. Grogan, .

978, 1003

Lyndsiiy v. Lynch,

. 1027

T. Irwin,

. 282

Lyon's Appeal,

. 1409

V. Malin, 1193,

1244,

Lyon V. Huntingdon Ba

Qk,

312, 967

1245, 1263

V. M'Gaffiiey,

. 44

V. Wheeler,

. 170

V. Richardson,

. 983

M'Cracken v. M'Cracken,

. 595

V. Richmond,

. 1735

M'Crea v. Hunter, .

. 1097

Lyons v. Byrd,

. 575

V. Purmont, . 946,

1092, 1097

T. Saunders,

. 1734

M'Creery v. Sutherland,

. 1408

Lysaght V. Phillips,

. 1910

M'CuUoch V. M'Kee, .

. 963

Lytic V. Bass,

946, 947

M'Cullbugh's Appeal, .

506, 509

#

M'CuUough V. Cowber, .

. 182

M'Anich v. Laughlin,

986, 1734

V. Dashiell,

. 418, 421

M' Artec v. Engart,

1237,

1242, 1244

V. Davison,

. 1143

M'Ateer v. M'MuUen,

. 189

V. Dawson, .

. 1105

M'Bce V. Loftis, .

. 82

V. Eagle Ins. Co.

. 1080

M'Blair v. Gibhs, .

. 55

V. Eudaly, .

. 209

M'Erayer v. Hardin,

. 1414

V. Somerville,

. 93

V. Roberts,

. 1987

M'Cusker v. M'Evoy, .

. 1610

M'Bride t. M'Bride,

1521, 1524

M'Cutcheon v. Miller, .

195, 202

M'Cahan's Appeal,

. 551

M'Daniels v. Bank of Rutland

1729, 1735

M'Call's Appeal, .

. 915

V. Bamum, .

. 104

M'Call V. Harrison,

. 993

V. Flower Brook M

an. Co., 160

V. Hinckley,

. 321

V. Lapham, .

1728, 1729'

V. Peachy, .

. 576

M'Dermott v. Strong, .

202, 390

M'Calinont v. Patterson,

. 214

MIDevitt's Appeal, . 2f

)2, 265, 270

M'Campbell v. M'Camp

bell.

337, 339

M' Donald V. Beach,

397, 401,

M'Candlish v. Keene, 3

22, 383, 388, 390

V. Dupree,

. 987

M'Cann v. Dermott,

. 1911

V. M'Donald,

104, 1606

V. Letcher,

. 979

V. M'Leod, 965,

1990,

V. Taylor,

. 1409

1995, 1999

M'Cant V. Bee, 1214, 1

228,

1229,

V. May, .

. 1015

1246,

1260, 1263

V. Neilson, 1246,

1247, 1260

M'Carty v. Blivins,

. 1613

V. Starkey,

. 980

T.Kyle, .

1035, 1039

V. Talbot,

. 1638

V. Rountree,

1487, 1492

M'Dowell V. Caldwell, .

584, 1503

M'Cauley v. Brown,

. 61

V. Read, .

. 1829

M'Causeland's Aj)peal, .

, 560

M'Dowley, Ex parte,

. 1529

TABLE OF AMERICAN CASES.

Ixxxvii

272,
262,

M'Eldeny v. Shipley, . 946, 972, 983
M'Elhenny's Appeal, . . 552, 560
M'Elroy v. Thompson, . . . 1805
M'Ewen v. Johnson, . . . 1642
M'Fadden v. Worthington, . 93, 95
M'Fait's Appeal, . . 324, 381, 332
M'Farland's Estate, . . 555, 556
M'Farland v. Griffiths, ... 57

V. Shaw, . . . 1383
M'Farson's Appeal, 1087, 1098, 1099
M'Gahee v. Giudrat, . . 154, 163
M'Gan v. Marshall,
M'Gar v. Nixon, .
M'Gaw V. Hufifman,
M'Gill, In re,
M'Ginnis' Appeal,
M'Given v. Wheelock, .
M'Glaughlin v. M'Glaughlin,
M'Gonegal v. Mong,
M'Goon T. Augheney, .
M'Gowen v. Young,
M'Graffv. Porter,
M'Grew v. Tombeckbee Bank.
M'Guire v. Evans,
M'Haney v. Crabtree,
M'Hehry v. Rowland,
M'llvain v. Githen,
M'Intier v. Shaw, .
M'Intire v. City of Zanesville,
M'Intyre v. Miller,
M' Jilton V. Lowe, .
M'Kacknie v. Ward,
M'Kay v. Carrington, .
M'Kean v. Eeed, .
M'Kecknie v. Hoskina, .
M'Kee v. Judd, .
M'Kenney v. Waller, .
M'Kensie v. Culbrethf .
M'Keuzie v. Perrill,
M'Keon v. Barnes,
M'Kibbin v. Brown,
M'Kim T. Duncan,
M'Kine t. Voorhies,
M'Kinley v. Watkins, 1704,
M'Kinney v. Brightly, .

V. Miller,
M'Kiustry v. Conly,
M'Knight v. Walsh,

V. Wright, .
M'Konkey's Appeal,
M'Lanahan v. M'Lanahan,
T. Eeeside, .
V. Wynant, .
M'Laren v. Pennington,
M'Laughlin v. Booard, .

V. M'Laughlin,

1988

. 1804

255, 288

283, 291

270, 285

. 2008

. 349

. 1489

. 1623

. 104

. 1654

1373, 1384

647, 656

. 1921

1350, 1356

508, 510

. 1983

. 1803

. 290

. 1398

1898, 1899

1117, 1139

. 1143

180, 185

. 1626

. 1900

. 1729

. 180

. 1281

. 1030

. 572

. 1410

1710, 1722

148

1995

1986, 1995, 1996

. 570, 571, 1501

. 582

. 1864

. 1988

205, 206

. 349

. 1347

. 1903

324

■331, 335, 347, 654

PAGE

. 1725
. 1216
1609, 1632
. 279
. 1216
. 987

V. Shepherd, ' . 182, 2005

V. Shields, . . . 1116

M'Laurin v. Wright, . 1989, 1995

M'Lellan v. Walker, . . . 1646

M'Lemore v. Powell, . 1899, 1911
M'Lenachan v. M'Lenachan, 344, 349

M'Leod V. National Bank, . . 83

M'Mahan v. M'Mahan, ,

V. Smith,
M'Mahon v. Allen,
v. Fawcett,
V. Eyan,
V. Spangler, ,
M'Masters v. Carothers, . . 898

M'Mechan v. Griffing, 181, 186, 204,

218, 221
M'Menomy v. Ferrers, . . . 1646
M'Millen v. Scott, . . . .594
M' Morris v. Crawford, . . .1154
M' Mullen v. Hinkle, . . . 1901
M'Murray v. Montgomery, . . 1794

T. Oil Co 1734

M'Murtrie v. Pennsylvania Co., . 1804
M'Mutlin V. Warner, . . . 1673
M'Namara v. Irwin, . . . 1415
M'Naughten v. Partridge, . . 985
M'Neil V. Tenth Nat. Bank, 1661, 1673
M'NeiU V. Nosworthy, . . . 1995
M'Nulty V. Cooper, . . . 1646
M'Nutt V. Strayhom, . . 403, 413
M'Pherson V. Hansell, . . .195
V. Israel, . . . 574
M'Queen V. Chouteau, . . . 1151
M'Eaven v. M'Guire, . . .213
M'Eee v. Means, .... 1860
M'Taggart V. Thompson, . . 1283
M'Vickerv. Wolcott, . 1333,1373
M'Wheeter v. Douglas, . . . 2052
M'Whorter v. Benson, . 542, 547, 555
M'Williams v. M'WilUams, . . 593
V. Nisly, . 1606, 1610
V. Webb, . . . 1666
Maccubbin v. Cromwell, . . 1796
Mackintosh v. Ogilvie, . . . 1398
Mackreath v. Marlar, . . .1123
Maclaren v. Stainton, . . . 1398
Macomber v. Doane, . . . 1649
V. Parker, . 1613, 1616
Macon v. Sheppard, . . . 182
Macready v. Wilcox, . . . 1490
Mactier v. Trith, 1078, 1079, 1080

Maddox v. Maddox, 501, 502, 505, 508
Madeira v. Hopkins, _ . . . 1028
Magee v. Cowperthwaite, . . 588
V. Holland, . . . 1506

V. Liggett, . . . .278
Magoffin V. Holt, .... 1129
V. Patton, . . . 1502
Maguire v. Maguire, . . . 1521
Mahew v. Phoenix Ins. Co., . . 1245

Mahle v. Elder 1704

Mahon v. Eyan, .... 1279
Mahone v. Central Bank, . . 1412
Mahoney v. Middleton, ... 40
Mahurin v. Pearson, . 1900, 1905
Main v. Eing, .... 2069
Maitland v. Wilson, ... 78
Major V. Fields, .... 1641
Ma'llett V. Dexter, .... 1350
Mallory v. Smith, . . . .425
V. Stodder, . 40, 93, 224

Ixxxviii

TABLE OF AMBRICAN CASES.

PAGE

Malony v. KeAian, ... 75
Manahau v. Gibbons, . 1793, 1795
Manaton v. Molesworth, . . 1393
Manchester Iron Man. Co. v. Sweet-
ing, 1905

Mancius v. Sergeant, . . . 2070
Mandeville v. Welch, 1642, 1643,

1650, 1651
Mangles v. Dixon,
Manhattan Co. v. EvertsoD,
Manley v. Boycott,

52

. 100

. 1918

. 89

. 94

1237, 1242

. 1136

. 1987

. 547

648, 676

. 204

1382, 1384

. 1368

900, 901, 903

. 1669

. 647

. 84

538, 539

. 1921

. 323

. 1007

951, 952

Bank of

V. Hunt, .
Mann's Appeal,
Mann v. Betterley,
V. Dunn,
V. Falcon, .
V. Lawrence,
V. Mann,
V. Martin, .
V. Eucker, .
V. Worrall, .
Manners v. Manners,
Manning v. Cox, .
V. Craig,
V. M'Clure,
V. Manning,
V. Shotwell,
Mansell'g Estate, .
Manser v. Back,
Manser's Case,
Manufacturers' Bank
Pennsylvania, 208, 214, 216,1906,

1915, 1993
Mara v. Pierce, . . .39, 223
Marble Co. v. Kipley, 1077, 1103,

1139, 1140

Marco V. Low, . . 1338, 1396

Marcy's Accounts, . . . 570

Marine Bank v. Fulton Bank, . 1653

V. International Bank,

2009, 2050
Marine Ins. Bank v. Janney, 1650, 1652
Marine Ins. Co. of Alexandria v.

Hodgson, . . 1329, 1330, 1333

Mark v. Clark, .... 1645

V. Willard, .... 1618

Markel v. Spitler 1729

Markham t. Calvert, . . . 317
Marks v. Pell, . . . .992
Maries v. Cooper, .... 67
Marquis of Townshend v. Stangroom,

981, 982, 984, 985, 991, 998, 1378

Marriott v. Hampton, . . . 1378

Marsh v. Lee, . . 37, 53, 56, 71

V. Marsh, . 323, 330, 331, 335

V. Pike, 272, 278, 280, 1337, 18P8

V. Tyrrell, 1193, 1216, 1285, 1289

V. Wvkofi; .... 1119

' Marshall v. Aiken, . 1909, 1915

V Baltimore & Ohio E.E., 1635

V. Billingsly, . . . 1244

V. Cook, .... 1341

V. Craig, . . . 1914

V. Crehore,

897, 918

PAGE

Marshall v. Frank, ... 63
V. Holloway, . . . 588
V. Lynn, . . 1022, 1025
V. Mayor of Brooklyn, . 1407

V. Mears,
V. Powel,
V. Stephens,
V. Stewart,
Marsteller's Appeal,
Martin's Appeal, .
Martin v. Berens, .

V. Browning,

V. Clarke, .

V. Dryden, .

V. Graves, .

V. Hamlin,

V. Jackson, 84,

V. Jewell, .

V. Martin, .

V. Melville,

V. Mowlin, .

V. Pycroft,

V. Eeed,

V. Eichardson,

V. Sale,

V. Taylor, .

V. Teague, .

V. Thomas,

V. Tiffany, .

V. Veeder, .

V. Yerger, .
Martindale v. Alexander,
V. Price,

. 1636

. 1105

. 1229

. 1991

. 556

. 552

944, 945, 970

. 103

964, 1638

93, 97

. 1355

983, 1017

I, 170, 180, 182

. 1409

1012, 1207

. 2050

. 1667

1027, 1028

1645

1671

75, 204, 213, 222

1901, 1902, 1918

. 1267

. 1906

. 420

1636, 1638

. 96

. 916

. 205

1026,

V. Smith, 1106, 1107, 1108

Martineau v. M'Callum

Marvin v. Marvin,
V. Prentice,

Mason v. Bogg,

V. ChappeU,
V. Ditchbourne,
Estate of, .
V. Fayne, .
V. Graff, .
V. Moody, .
V. Peck,
V. Piggott, .
V. Eing, 1192,
V. Eoosevelt,
V. Tiffany, .
V. Wallace,

Massachusetts Man. Co.

Massaker v. Massaker,

Massey v. M'llvain,

V. United States
V. Westcott,

Massie v. Greenhow,

V. Watts, 1398,

Masaou's Appeal, .

Master v. Miller, .

Masterman v. Mann,

Mateer v. Hissim, .

Mathews v. Mathews,

Mathis V. Bryson, .
V. Mathis, .

1265,

2008
1266
. 1996
. 264
. 1017
. 962
325, 341, 345
. 189
. 974
. 1996
. 104, 105
. 1351
1193, 1216, 1224
. 544
391
1116, 1140
V. Emmons, 37
, 350
. 90
. 2007
93,95
153, 163
1825, 1829
. 1018
. 46
. 1090
. 42
1794, 1800
. 1728
569, 648

Bank,

1824,

TABLE OF AMERICAN CASES.

Ixxxix

PAGE

Matlack v. James, . . . 395, 403

V. Matlack, . . . 394

Matson v. Field, . . . . 1 329

Matteson v. Sanfield, . . . 1030

Matthews v. Aiken, . . 287, 1907

V. Demeritt, . 97, 185, 186

V. Everitt, ... 37

V. GUes, .... 1129

V. Patterson, . . . 1147

V. Terwilliger, 981, 999, 1002

Matthewson v. Bank, . . . 1911

V. Fitch, . 1632, 1641

V. Johnson, . . 898

Mattingly v. Speak, . . .979

MaughUn v. Perry, 1090, 1129, 1131

Maundrell v. Maundrell, . . 36

Maupin v. Emmons, . . 37, 39

Manri v. Hefferman, . . . 1916

Maxwell v. Maxwell, . . . 655

V. Montacute, . . . 976

V. Ward, .... 1413

May V. Calder, .... 1487

V. Le Claire, . , . . 1707

v. Le Clerc, .... 72

V. May, .... 566, 567

Mayberry's Appeal, . . 555, 560

Maybiu v. Kirby, . . .52, 55, 154

Mayer v. Clark, . . . 398, 400

V. Galluchut, . . .583

Mayham v. Coombs, 93, 97, 215, 216, 224

Mayhew v. Boyd, . . 1907, 1908

V. Crickett,
v. Insurance Co
Maynhard v. Hunt,
Mayo V. Bland,

V. Fletcher, .

v. Judah,

T. Swope,
Mayon, Ex parte, .
Mayor v. Williams,
Mayor of Baltimore v. Porter,

1901
. 1734
. 2007
. 654
. 2007
. 2049
. 1117
. 401
145, 204
. 1407

Maywood v. Lubcock, . 32, 103, 105

Meacham v. Stemes, 540, 543, 544, 548

Mead v. Lord Orrery, ... 85

V. Merritt, 1339, 1400, 1401,

1404, 1823, 1824, 1829
V. Steger, . . . .945
V. Weaver, .... 1087
V. Wheeler, . . 2058, 2063
Meadows v. Duchess of Kingston, 64
Meads v. Merchants' Bank, . . 86
Means v. Means, .... 1273
Mears v. Ball, .... 54
V. Waples, .... 43
Meason's Appeal, . . . 1155

Meason v. Kaine, 994, 1024, 1025, 1077
Mechanics' Bank v. Bank of Ni-
agara, . 2009
V. Edwards, . 314
Mechanics' Building Association v.

Conover, .... 286, 317
Medlack v. Cogburn, . . . 1395
Meech v. Allen, 273, 274, 391, 418,

421, 422

Meek v. Howard, .
V. Kettlewell,
V. Perry,
V. Thomas, .

Meeks v. Barker, .

Meen v. Rucker, .

Mehaffey v. Share,

PAGE

1393, 1373 1376
. 1645
1213, 1276
. 1276
. 1347
. 1373
. 1677

Mehan v. Williams, 155, 170, 180,

181, 182, 186

Meig's Appeal 2048

Meiswinkle v. Jung, . . . 1913
Mellish V. Robertson, . . . 1734
Mellon's Appeal, 38, 87, 224, 349, 648
Melton V. Howard, . . . 1900
Menagh v. Whitwell, 393, 394, 404,

405, 406, 408, 413, 415
Mendes v. Guedalla, . 1798, 1800
Menifee v. Clark, . 1899, 1900, 1908
Mercantile Ins. Co. v. Corcoran, 53, 1660

Mercer v. Lancaster,
Mercien v. People,
Merrett v. Baldwin,
Merreweather v. Herran,
Merrill v. Emery, .

V. Lake,

V. Merrill,

V. Moore, .
Merrimack Bank v. Brown,
Merritt v. Bartolick,

V. Brown, 1016, 1138,

V. Fleuring,

V. Lambert,

V. Lincoln,
Merryman v. Russell, _

V. State,
Merwin v. Smith, .
Messervey v. Barrelli,
Messick v. Sunderland,
Mestaer v. Gillespie,
Metcalf V. Putnam,

1915

1515

1375

. 1630

708, 709

. 1350

. 2044

. 590

. 1906

. 2008

1143, 1995

. 1710

1638, 1639

. 1905

. 864

289, 291

. 1415

. 296

39, 236

. 1012

993, 1002

Methodist Church v. Mayor of Bal-
timore, . . 1330, 1333, 1408
Metzger v. Metzger, . . . 1672
Meux V. Bell, . . . .148
Mevey's Appeal, . . 291, 293, 317
Michael v. Doe, .... 1631
V. Michael, 1240, 1245, 1264
Michigan Bank v. IJammond, . 2048
Michigan R. R. v. Dunham, . . 1731
Mickles v. Dillaye, . . . 2011
Middleton Bank v. Jerome, . . 1673
Miles V. Bacon, .... 595
V. Boyden, .... 1487
V. Culver, . . . .948
V. Ervin, .... 1216
V. Leigh, . . . 331, 335

V. Wistar 1504

Milkman v.. Ordway, . . . 1152
MUler V. Beverleys, . . . 575
V. Bradford, . . .207

V. Chetwood, 994, 997, 1026, 1146
V. Congdon, . . . 567

V. Craig, .... 1242
V. Cresson, .... 146

xc

TABLE OF AMERICAN CASES.

Miller v. Dennet,
V. Dyer,
V. Elliott,
V. Emans,
V. Estate of,
V. Estell, 93, 396,
V. Freech, .
V. Freschorm,
V. Gaskins, 1335,
V. Gorman, .
V. Harwell, .
V. Henderson,
V. Henlan, .
V. Horton,

PAGE

. 895

1902, 1918

. 2053

1605, 1606

557

399, 400, 403

. 1865

. 971

1359, 1362, 1385

. 1370

. 328, 332

966i 967, 974

1139, 1140

. 383

V. Illinois Central E. E. Co., 171
V. Jacobs, . 264, 267, 268, 285
v. Johnson, . . . . 329
V. M'Gan, . . 1906, 1908
V. M'Dougal, . . . 1412
V. Miller, 1245, 1248, 1250,

1266, 1271, 1272, 1733

V. Pierce, .

V. Eeceiver,

V. Eusk,

V. Schackelford,

V. Shurz,

V. Stem,

V. Thomas, .

T. Travis, .

V. Wack,
Milligan v. Cook, .

V. Poole,
Millis T. Eobertson,
Mills V. Eden,

v. Lookwood,
V. Mills,
V. Van Voorhis,
Milne, Succession of,
Milner v. Gray,
Mims V. Mims,
Miner v. Atherton,

Estate of,

V. Miner, 1510, 1517, 1521, 1523

Minns v. Morse,
Minor v. Dabney, .
V. Ferris,
V. Stone,
V. Webb, .
Minturn v. Baylis,
Mirehouse v. Scaife,
Mitchell V. Barnham,
V. Bunch,
V. Holmes,
V. Long,

. 1236
. 1347
. 1823

. 182

197, 198, 202

. 1908

1987,

1995

675

104

1148

919

982

260

979

1216, 1984, 1988

.2006

592,-593

. 1091

.- 588

785, 787, 800, 813

598, 599

89

. 654

. 741

. 1358

. 1391

. 1028

325, 347, 350

. 1992

1824, 1826 1830

. 574

1703, 1707, 1V33

V. Manufacturing Ins. Co., 1624

V. Mitchell, 339, 341, 507,

509, 510, 1641
V. Oakley, . . . 1349
V. Sawyer, . . . 1729
T. Silliman, . . . 1343
V. Winslow, 921, 1605, 1613

1619, 1629, 1645

Mitler v. Mitler, 1354

Mix V. Beach, ..... 1137

PAGK

Mix V. Hotchkiss, . . . .317
Moale V. Buchanan, 989, 1003, 1007,

1009, 1018, 1019
Mobile Marine Dock Insurance Co.

V. M'Millan, . . . .947
Mocatta v. Morgatroyd, . . . 149
Modawell v. Holmes, . . . 588
Moflfatt V. Moffatt, . . . .709
T. Strong, . . . .697
Mogg T. Baker, .... 1612
Mahler's Appeal, . . 1668, 2009
Molder v. M'Cann, . . . 1384
Moliere v. Penn F. Ins. Co., 956, 957, 993
Moline Man. Co. v. Webster, . . 418
MoUan v. Griffiths, . 257, 325, 332
Molony v. Scanlan, . . . 832
Monck V. Monck, 782, 790, 796, 803

Mondel v. Steel, .... 1344
Monell V. Monell, . 1793, 1795, 1796
Monk V. Cardiff, .... 1381
Monroe v. Barclay, 1267, 1273, 1278
T. Bewley, .... 1279
V. Delavan, . . . 1356
V. M'lntyre, . . . 1415
V. Walbridge,. . . .896
Montacute v. Sir George Maxwell, 974
Montague v. Mitchell, . 1359, 1371
Montesquieu v. Sandys, . . 1220

Montfiore v. Guedella, . . .796
Montgomery v. Chadwiek, 1996,

2006, 2010, 2011

V. DUIingham, . 1899

Montier's Appeal, .... 556

Montpelier Bank V. Dixon, 1899,1905

Montville v. Houghton, . . 960

Moody V. Kyle, 1644

V. Payne,. . . . 409, 410
V. Wright, 1605, 1612, 1613,

1617, 1618

Moon V. Adams, .
Mooney v, Dorsey,

Y. State,
Moore v. Beason, .

V. Blauvelt,

V. Cable,

v. CampbeU,

V. Clay,

V. Fitz Eandolph,.

T. Fitzwater, 1704,

1733

V. Gamble,. .

V. Hamilton,

V. Hilton, .

V. Holcombe, 51,

V. Hood,

V. Jordan,

V. Mayhew,.

. 1914

. 288

. 1266

2007, 2010

1021, 1022, 1025

65, 73, 100

. 1077

1708,

1711, 1737

1368, 1372

. 1801

. 800, 1415

52, 55, 56, 1672

. 1823

. 222

48

V. Metropolitan Bank, 1672, 1673

V. Platte County,

y. Plummett,

T. Eake,

V. Eeid,

V. Shields, .

V. Tandy, .

2044, 2059
1273
1610
1263
579
1792

TABLE OF AMERICAN CASES.

XCl

TUT -rxT , PAGB

Moore v. Wade, . 1983, 1988, 1992

v. Ware, .... 2009

V. Watson, .... 324

v. Wesley Church, . . 1916

V. ■\Vright, . . 314, 321, 1671

V. Zabriskie, . . .570

Moran v. Woodward, . . . 1335

Morange v. Edwards, . . .1641

Mordecai v. Parker, . . . 2008

V. Tankereley, . . 961

More V. Mahou, .... 78

V. Ord, 1409

Morecock v. Dickens, . . . 203
Moreland v. State Bank, . . 1906
Morey v. M'Guire, . . . 2007

V. Newfane, 1719, 1722, 1723, 1736
Morgan v. Carson, . . 1347, 1377

T. Hannas,
V. Herrick,
V. Moran, .
V. Morgan,
Y. Nelson, .
V. Peet,
V. Seymour,
V. Scott,
Moritz T. Brough, .
Morley v. Morley, .

V. Eennoldson, .
Morrell v. Dickey,
Morrice v. Bank of England,
Morrill v. Morrill,
V. Noyes, .
Morris' Appeal,

v. Chaney, .
V. Ht)yt,
V. M'Coy, .
T. Monroe,

540, 548, 545, 547

. 1129

. 703

547, 1118

. 590

. 1916

. 261

1039, 1116

1272, 1278, 1283

. 1791

. 509

. 1496

257, 389

912, 914

1616, 1622

. 260

. 1668

. 1125

. 2054

. 1735

V. Morris, 383, 384, 388,

419, 420, 427, 578, 579, 1500
V. Mowatt, .... 92
V. Nixon, 965, 1986, 1987, 1989
T. Oakford, . 272, 281, 283

V. Olwine, . . . .258
V. Remington, . . . 1832
V. Stokes, . . 1213, 1276

V. Wallace, . . . 1801
Morris Canal Co. v. Fisher, . . 51
V. Van Vort, . 1898

Morrisoii v. Blodgett,
V. Kelly,-.
V. Kurtz,
V. M'Leod,
V. March,
V. Wentz,
V. Wurtz,
Morrow v. Allison,
V. Bright, .
Morse V. Godfrey, .
V. Rathburn,
V. Royal,
V. Welton, .
Morss V. Elmendorf,

Mortimer v. M'Callan,

394, 408, 409
. 221
317, 418
1037, 1244
180, 188
. 1093
. 1109
. 588
. 1347
. .83
2058, 2061
1222, 1263
. 1510
1148,
1149, 1151, 1153
. 1610

ilortimer v. Orchard,
Jlortimore v. AVright,
Mortlock V. BuUer,
Morton's Estate,
Morton v. Lamb, .

V. Naylor, .

V. Ostron, .

V. Perry, .

V. Eice,

V. Eobards,

V. Rose,
Moser v. Libingwith,
Moses V. Moses,

V. Murgatroyd,

PA&E

. 103
. 1491
1146, 1147
. 551
. 1106
1642, 1646, 1668
. 1704
648, 674, 675
. 1915
. 99
. 59
. 985, 990
. 587
978,

1014, 1908

. 1236

287, 288

1090, 1091

. 2007

946, 1995

1907, 1909

388,

259

1672
1224
2063
1635

Mosey v. Forsyth,
ilosier's Appeal, .
Moss V. Barton,

V. Gallimore,

V. Green,

V. Hall,

V. Ranlet,
Mott V. Clark, 33, 40, 54, 55, 58, 81,
205, 225,

V. Harrington, 104, 1216,

V. Mott, . . 2052,

V. Small, ....
Motteux V. Loudon Assurance Co.,

957, 1670

Moulson V. Moulson, . . . 849

Mount V. Potts, . . . 293, 308

V. Tappy, .... 1913

Mount Holly Co. v. Ferrge, 1661,

1664, 1673
Mountfort, Ex parte,
Mountstephen v. Brooke,
Mower v. Kip,
Mowry v. Todd,
Mojrer V. Hinman,
Muckenfoss v. Heath,
Muir V. Schenck, .
Muirhead v. Kirkpatrick,
Mulford V. Peterson,
Mulhall V. Quinn, 1628,

Mulherran v. Gillespie,
Mullen's Estate,
Muller V. Pondir, .
Mulligan v. Wallace,
Mullikin v. Graham,
MuUisori's EstatCj
Mumford v. Murray,
Muinper's Appeal,

56,

1146,

Mundine v. PittSj
Mundorffv. Singer,
Mundy v. Culver, .

T. Vawter,
Mungis T. Cordett,
Munn V. Burch,
Estate of,
V. McDonald,
V. Munn,
MunseU v. Lorer, .
Murdock v. Finney,

1492
.1669
. 422
. 1671
90, 92
. 585

1666, 1672
. 312
57,58

1629, 1638
. 820
. 599
. 540
. 1805
147, 148
. 164
1792, 1794
. 553

1900,

32

1903

2052

205

86

1653

547

82

570

1028

1666

Mure, Ex parte, 312, 313, 1336, 1902, 1903

xcn

TABLE OF AMERICAN CASES.

Murphy V. Hubert,
In re,
V. Lockwood,

Murray v. Ballou, 55, 82, 193, 208, 1108

V. Dake,
V. Elston, .
V. Feinour,
V. Finster,
V. Judah,

PAGE

977, 978, 1236
1510, 1516
. 1124

968, 969
. 1414
1802, 1803
36, 78, 193
1917, 1918

V. Lylburn, 52, 55, 59, 196, 1672

V. Murray 418

V. Palmer, . . . 1263

V. Williamson, . . . 1339
Murrell v. Neil, . . 417, 418, 420
Muse V. Letterman, . . 97, 98
Musselman's Appeal, . 1116, 1117
Estate, . . 817, 1389
Muspina v. Ailing, . . . 1829

Mutual Assurance Society v. Stowe,

36, 71, 73

Myddleton v. Kenyou, . . . 1258

Myer's Appeal, .... 551

Myer v. Condit, .... 84

V. Eddy, . . . 348, 349

V. Hays, .... 2052

V. Myers, . . 1500, 1502

V. Eoss, . . .37, 168

V. Wade, . . 1503, 1504

V. Wells, . . 1908, 1915

V. WUliB, .... 1990

V. Zetelle, .... 1804

Nabours v. Cocke, . . 1715, 1734

Nace V. Boyer, 1037, 1038, 1211,

1212, 1233, 1242, 1257, 1259
Nachtrieb v. Harmony Settlement, 1230
Nackin v. Stanley, . . .293

Nagle's Appeal, . . . 323, 383
Nagle V. Newton, .... 1146

Nance v. Nance 1801

Nanney v. Williams, . 1252, 1253

Nantz V. M'Pherson, . . 65, 73
Napier v. Darlington, . 1090, 1147

Nash V. Hunt, .... 1281

V. Smallwood, . . . 652
Nason v. Smedley, . . . 1369

Nathans v. Morris, . . . 558
IS ational Bank v. Sprague, 391, 396, 415
Naylor v. Moody, .... 1914
V. Wynch, . . 986, 1736

Neal V. Hagthorp, . . 104, 105, 189

V.Ward, . . 506

Neale v. Neale 1082

Neall V. Mumford, . . .408

Neary v. Bostwick, . . . 1728
Needles v. Needles, . 1605, 1607

Keel V. Potter, . . 1282, 1284

Neflf'a Appeal, . 259, 307, 315, 1902
Neff V.Horner, . . 1906,1908

V. Miller, . . . 257, 275
Negroes Chase v. Plummer, , . 1859
Neil V. Murray, .... 1281
Keilson V.Cook, . . 588,589,1804
Kellons v. Truax, . . . 295, 296

Nelson v. Allen,

V. Armstrong,

V. Dunn, . 262,

V. Fury,

V. Hagerstown Bank,

V. Leigh, .

V. M'Giffin,

V. Oldham,

V. Page,

V. Kobinson,

V. Rockwell, 1364,

PA OK

. 189
. 1374

1365, 2009
. 281
. 1137
. 1386

1283, 1284
. 1242
. 577

1412, 1415

1366,

1368, 1372
. 146
. 1249
. 293
188, 205
. 1903
. 1148
. 1345

1647, 1649

. 546

. 1028

980, 981

. 104

V. Sims,
V. Suddarts,
V. Trump, .
V. Wade, .
V. Williams,
Nelthorpe v. Holgate,
Nesbit V. Smith, .
Nesmith v. Drum, 1645, 1646;
Nest's Estate, .
Neufville v. Steward,
Nevins v. Dunlap,
New England Bank v. Lewis,
New Hampshire Savings Bank v.

Colcord, . . . 1912, 1916

New Hope Bridge Co. v. Phcenix

Bank, . . . . .168

New Orleans v. Baltimore, . . 592
New York Central Ins. Co. v. Na-
tional Ins. Co., . . 170
Life Ins. Co. v. Cutter, 184, 297
V. Melnor, 296
Life and Trust Co. v.

Vanderbilt, . 266, 267
and New Haven E. E.

Co. V. Schuyler, 1393, 1665
Steamboat Co. v. New
Jersey Co., 259, 262,

263, 314
Newberry v. Newberry, . . 588

Newcomb v. Banham, . . . 1984
V. St. Peter's Church, . 663

Newcomer v. Kline,
Newell v. Hamer,
Newhall v. Buckingham,

\. Pierce, .
Newhouse v. Gardiner,
V. Goodwin,
Newkirk v. Cone, .

V. Newkirk,
Newly V. Hill,
Newma v. Johnston,
Newman v. Bagley,

V. Bean, .

V. Chapman,
Newport v. Cook, .
Newsom v. Newsom,
Newson v. Bufferlow,
Newton v. Bennet,

V. Bronson,

V. Douglass,

V. Fay, .

V. Field, .

960, 990

1900, 1909

. 410

. 184

. 1285

1265, 1274, 1275

. 1641

. 501

1641, 1642

. 350

. 423, 1663

. 408, 409

195, 201, 213

1501, 1502, 1504

579

993,' 1001

. 387

1823, 1824, 1830

. 1391

. 965

. 1365

TABLE OP AMBEICAN CASES.

XCIU

PAGE

PAGE

Newton V. M'Lean,

1631

Notson T. Barrett, .

. 1119

v. Newton,

45,46

Noyes v. Brown, .

. 1641

V. Stanley,

655

V. Clark, .

. 2050

Nicely v. Boyles, .

901

V. Sturdivant,

. 2007

Nicherson, Caae of.

1526

Nugent V GiflFard, .

. 85

NichoUs V. Hodgea,

572

V. Kiley, .

. 1987

v. Morris,

1910

Nurse v. Seymour,

. 997

V. Williams, .

1028,

1030

Nute V. Nute,

153, 214

Nichols V. M'Dowell,

1899

1906

Nyce's Appeal,

. 1794

V. M'Ewen,

541

Estate,

1801, 1805

V. Nichols,

1247

Nye's Estate,

. 702

V. Parsons,

1918

V. Postlethwaite,

349

CBanuon v. Miller,

. 391

Nicholson v. Ogden,

592

O'Brien v. Elliot, .

. 104

V. Patterson, .

1375

O'Connor v. Spaight,

. 1021

Nickerson, Ex parte,

1529

O'Donnell v. Kosenburg

. 2059

V. Gilliam, .

1339

V. Seybert,

. 1626

Nickle V. Baldwin,

1344

O'Fallon v. Kennerly,

. 1119

Niekson v. Toney, .

1990

CKane v. Kiser, .

1105, 1143

NicoU V. Mumford,

408

C^Keefe v. Kellog,

. 1623

Nightingale v. Withington,

1491

O'Keson v. Barclay,

. 1711

Nimmo v. Commonwealth,

576

O'Neil V. Donnell,

588, 589

V. Davis, .

1606

V. Murray,

1276, 1284

Nisbet V. Lockman,

1227

CNeille v. CapeUe,

. 1969

Niver v. Eossman, .

2054

2063

O'Rourke v. O'Connor,

92, 188

Nixdorffv. Smith, .

. 1395

Oakey v. Casey,

. 418

Nixsen v. Lyell, .

. 1903

Oberndorffv. Bank,

. 1911

V. Nixsen, 1276, 1282

"l284

,1290

Obert v. Obert, . 897, 904, 911, 916

Noble V. M'Clintock, .

. 415

Ocean Ins. Co. v. Fields, 1330, 1335, 1386

V. Ward, . 1021,

'l022

, 1025

Ochiltree v. Wright, 1791,

1792, 1794

V. Wilson, .

. 1416

Odeu V. Elliott, .

. 287

Noland v. Cabit, .

. 1792

V. Windley,

. 578

Nolend v. Gwyn, .

106

Odiorne v. Mason,

. 93

Norcross v. Widgery, .

. 218

Oelrichs v. Spain,

. 1337

Norfleet v. Southall,

. 1031

OfFord V. Da vies, .

. 1089

Norfolk, Ex parte, .

. 400

Ogden V. Fitzimmons,

. 50

Norment v. Wilson,

. 915

V. Haven, .

. 224

Norris' Appeal, 551, 552, 861

' 862

1805

V. Murray,

540, 544

V. Campbell,

. 1372

Ogilviev. Foljambe,

. 1102

V. Crummey,

. 1909

Ohio Ins. Co. v. Boss, 55,

58, 68, 222

V. Fisher, .

'l501

, 1502

Life Ins. Co. v. Ledyar

d, 84,

V. Sheppard, 1282,

1284

»

85, 99, 2

13, 224, 225

1285

, 1734

V. Winn,

. 281

V. Slaughter,

1727

1729

Eailroad Co. v. Tii

idall,

^! _ i

1488, 1489

/~\ J.

v. Thompson, 646, 652, 656, 661
North V. Turner, .... 1625
North Pennsylvania Co. v. Snowden, 861
North Eiver Bank v. Aymar, . 171
Northampton Bank v. Balliet, .1671
Paper Mills V. Ames, 2007
Northern Indiana E. E. Co. v.

Michigan Central E. E. Co., . 1832

Northern E. E. v. Keighler, . 572, 573

Norton v Beaver, . . ' . .89

v. Burge, . 193, 195, 198, .202

V. Gillison, . . . 581

V. Piscataqua Ins. Co., . 1646

V. Eose,

,

J ,

1672

V. Tuttle, .

1636

V. Woods, .

1373,

'l384,'

1415

Norway v. Eowe, .

.

1413

Norwood V. Dehoney,

,

1667

V. Dresser,

.

,

176

V. Norwood,

.

.

104

Oil Creek E. E. v. Atlantic & Great

Western E. E., . 1728, 2048
OUer V. Gard, .... 944
Okeson v. Barclay, . . . 1724
Okie V. Spencer, . . 1908, 1915
OkiU V. Whittaker, . . . 1004
Old Colony E. R. v. Evans, 1082,

1089, 1092, 1093, 1095, 1118
Oldershaw v. King, . . . 1079
Oldfield V. Round, . . . 1145

Oldham v. Jones, .... 906
Olds V. Cummings, ... 58
Oliver v. Crosswell, . . . 1154
V. Jernigan, . . 911, 915
V. Lowry, .... 1672
V. Oliver, . . . .967
V. Mutual Commercial Ma-
rine Ins. Co., 956, 985, 1007
V. Piatt, . 34, 72, 73, 189

Olmstead's Case, .... 1403

XCIV

TABLE OF AMEKICAN CASES.

PASK

PAGE

Olmstead v. Olmstead, .

. 1523

Panton v. Holland,

. 265

Omerod v. Hardman, .

. 1000

Papin V. Massey, .

1108, 2069

C ng V. Campbell, .

. 1024

Parfitt V. Lawless, 1230, 1237,

1268,

Ontario Bank v. Mumford

. 1670

1274,'

1276, 1278

V. "Walker,

. 278

Paris V. Dexter,

1704, 1723

Orcutt V. Orms,

. 1358

V. Hulett, .

. 1908

Ord V. Little,

. 598

Parke v. Chad wick.

. 164

Organ v. Stewart, .

. 1710

V. Smith,

. 164

Orme v. Eoberts, .

. 86

Parker v. Blythmore, .

. 64

Ormsby v. Fortune, . J

12, 313, 1903

V. City of Syracuse, .

. 1647

Orr V. Churchman,

2045, 2054

Estate of, 551, 552,

562, 1805

V. Orr,

. 1215

V. Girard, .

. 906

Orrery v. Leighton,

. 102

V. Griswold,

. 265

Ortli V. Jennings, .

90, 94, 224

V. Gwjmn, .

. 574

Orvis V. Newell, 226,227

280, 281, 286

V. Jackson, .

. 213

Osborn v. Allen, .

1488, 1489

V. Judges, .

. 1395

T. Carr,

. 47, 302

V. Kane,

153, 214

V. Phelps, . . 9

96, 1006, 1007

V.Kelly, . -.

1348, 1669

Osborne v. Osborne,

. 674

V. Morton, .

1363, 1373

Osgood V. Franklin,

1032, 1237

V. Osgood, .

. 222

Otis V. Prince,

. 502, 508

V. Sergeant,

1079, 1082

T. Sill, .

. 1610

V. Urie,

. 1003

Otley V. McAlpin,

. 918

Parkhurst v. Howell,

. 801

Ottawa Plank Eoad v.

Murray,

V. Van Cortlandt,

944,

20^

17, 2050, 2051

1007, 1018,

1028,

Otte V. Becton,

. 1503

1029, 1030,

1153, 1155

Overton v. Woolfolk,

. 897

Parkinson v. Welch,

. 101

Owens V. Hodges, .

. 2063

Parkist v. Alexander, .

. 204

V. Miller, .

. 37

Parkman v. Welch,

106, 293

V. Eanstead,

1368, 1370

Parks V. Chadwick,

. 969

Owings V. Mason, .

. ; 32

V. Hall, . .

. 1990

V. Myers, .

. 194

T. Jackson, . 92, IS

S2, 198, 30O

Oxford Bank v. Lewis, .

. 1910

V. Parks,

808, 809

Oxley V. Storer, .

. 1916

Parmalee v. Dunn,

. 1667

Parnell v. Price, .

. 1909

Packard t. Ober, .

1731, 1734

Parrish v. Gray, .

. 1905

V. Wood,

. : 62

v. Koons, 1027, 1029,

1091, 1098

Packenham's Case,

. 910

Parrott v. Schaubhart, .

. 205

Padgett V. Laurence,

33, 86

V. Worsfold,

650, 651

Page V. Foster,

. 1991

Parsons v. Bradford,

. 1353

V. Gardner, .

. 1619

V. Freeman,

342, 343

V. Pierce,

. 2009

V. Hoyt, .

. 198

T. Webster, .

1900, 1905

V. Hughes,

. 1732

Pain V. Packard, 1360, 19

04, 1905,

V. Jury,

. 67

1906, 1917

V. Winslow,

508, 509

Paine v. Bennett, .

1703, 1708

V. Woodward, .

. 1628

V. Dudley, .

. 1369

Parteriche v. Powlet,

. 1022

V. Mellor,

. 1142

Parton v. Luterloh,

. 1356

T. Moreland,

. 94

Partridge v. Mesger,

. 963

V. Parsons, .

. 786, 788

V. Partridge, .

. 661, '821

V. Voorhees,

. 1916

V. Scott, .

. 265

Painter v. Zane, .

. 83

T. Smith,

. 205

Pairo V. \ickery, 1228, IS

!29, 1263, 1264

Paschall v. Passmore, .

. 1134

Paisley's Appeal, . 18

59, 1860, 1863

Pass V. M'Eea,

. 1641

PaUen v. Agricultural Bs

mk, 262,

Paterson v. Peterson,

. 825

291, 293, 314

Patrick v. Langston,

. 104

Palmer v. Gurnsey,

1986, 2002

Patten v. Smith, .

. 1663

V. Merrill,

. 1642

Patterson v. Bell, .

. 597

V. Palmer,

. 563

V. Bloomer, .

. 999

V. Scott,

. 1083

V. Brown,

. 195

V. Temple,

. 1105

v. Devlin,

. 712

V. Williams,

. 75

V. Ellis, .

. 709

Palmerton v. Huxford, .

. 1728

V. Jersey City,

. 1337

Pankhurst v. Howell, .

. 783

v. Martz, 1089

1138, 1139

TABLE OF AMERICAN CASES.

XCV

1276,

1285,

Patterson V. Patterson,

V. Pope, .

V. Scott, .

V. Slaughter,

Pattison v. Horn, .

T. Hull, .

Patton V. .Allison, .

V. Insurance Co.,
Patton V. M' Donald,
V. Moore, .
V. Shanklin,
V. Wilson, .
Patty V. Pease,
Paul V. Wilkins, .
Paulding v. Watson,
. Paulet's Case,
Pawlet V. Delaval,
Paxon V. Potts,
Paxton V. Harrier,
V. Popham,
Payne v. Commercial Bank, 1901,

1902, 1913

FAQE
1281

28C

324

34

1987

1667

1290

. 176

. 225

. 75, 82, 181

. 1913

. 1641

293, 308, 311

. 1084

. 1358

. 649, 665

. 1940

. 348, 350

. 293, 308

. 964

V. Matthews,
T. Eogers, .
Paynes v. Coles,
Paynter v. Evans,
Peabody V. Fentou,
V. Tarbell,
Peace v. Nailing, .
' Peacock v. Burt,

V. Peacock,

V. Pearson,

V. Ehodes,

Peagram v. King, .

Peake v. Darwin, .

Ex parte,
Pearce v. Chastain,
V. Olney, .
v.. Roberts, .
- Pearson v. Daniel,

V. Darrington,
V. Morgan,
V. Seay,
T. Williams,

1368,

Peck V. Briggs,

V. Fisher,

V. Jenness, .
Peckworth v. Butler,
Pedrick's. Estate, .
Peebles v. Beading,
Pegg V. Corder,
Peirce v. Goldsbury,
V. .Weber, .
Peirson v. Clayes, .
Pelham v. Moreland,
Pell V. Ball, . 331,647,673,674,915

V. M'Elroy, . . . .185
Pelletreau V. Jackson, , 1606,1608
Pellman v. Hart, .... 1667
•Pember v. Mathers, . . . 1012

Pence V. Huston 1343

Pendleton V. Batten, . . 96,97
Penn v. Hayward, .... 1823

418, .420

. 1669

. 104

1333, 1373

45, 57, 151

. 1153

. 1333

.47 . 57, 166

1413, 1494

. 1038

. 50

1382, 1383

. 1907

401, 402

. 1373

1398, 1832

. 1645

. 146

588, 589

. 164

1992, 1995, 1997

2052, 2060.

2063, 2069

. 1635

. 395; 408, 1411

1389, 1390, 1400

. 104

. 555, 560, 562

. 147, 152

. 1139

. 306

... . 2061

. 103, 104

. 1365

Penn v. Logan,

Trust of V. Downing,
Pennell's Appeal, .
Penneman v. Hartshorn,
Pennington v. Bell,
Pennock v. Coe,

PAGE

1501
1793

555
1092

420
1403, 1616

Estate of,. 1859,1860,1864
V. Freeman, . . .999
Pennsylvania v. Delaware, . . 1337
SaltCo.v.Niel, 40,81,107
Penny v. Martin, . . 1729, 1730

Pensonneau v. JBlakely, ... 46
Penaoulan v. Pulliam, . . . 1997
People V. Chegary, 1507, 1508, 1511,

1524, 1525
V. Ellison, . • . . . 1665
V. Elmore, .... 1661

Ex rel Nickerson v. , . 1508

Olmstead v. 01m-
stead, . 1507, 1523
V. Humphreys, . . . 1507

v. .Irwin 1995

V. Jansen, ... . . 1360
V. .Kearney, . . . 1488
V. M'Hutton, . 1914, 1921
V. Mercein, 1506,1507, 1510
1516, 1521, ;1522, 1523,

1524, 1528

V. Porter 1525

V. Eussel, .... 1899
V. Stigal, .... 1524
V. Superior Court of New

York,
v.. Tioga, .
V. Vilas,
V. Wilcox,
Percival v. Frampton,
Perkins v. Clements,
V. Drye, .
V. Finegan,

1626,

2050
1627, 1654
. 1914
1488, 1521, 1525
. 85
. 1373
. 1984
. 1490

V. Gay," 1707, 1708, 1711

V. HasdeU, 1082, 1090,

1092, 1096, 1131
T. HoUoweU, . . . 1412
V. Kershaw, . . . 279
V. Lyman, 2044, 2060, 2061,

2066, 2069
. 1901
. 1645

V. M'Neese,
V. Parker,
V. Swank, .
V. Wright,
Perrin v.Reed,
Perrine v. Doane, .
v. Striker,
Perry v. Levasseur,
V. Maxwell,
V. Newburn,
V. Pratt,
V. Eoberts, .
V. Saunders,
V. Siter,
Persih V. .Quiggle, .
Fetch V. Tutin,
Peterman v. Gatz, .

39, 180
. 999
. 206
. 1633
. 1333
. 1667
579, 648, 820, 821
. 1645
861, 863
. 1667
. 1897
. 1368
. 1227
. 1613
. 180

, XCVl

TABLE OF AMERICAN CASES.

Peters v. Beverly, .

PAGE

. 1792

V. Delaplaine,

1137, 1138

V. Florence,

288, 289

v. Goodrich,

. 154

V. Linenschmidt,

. 1906

Peterson v. Clark,

1993, 2002

V. Matthis,

. 1414

Peto V. Hammond,

. 159

Petree v. Bristow, .

. 199

Petrie v. Clark,

33, 85, 87

V. Feeter,

. 1673

Pettibone v. Griswold, .

. 205

Pettinger v. Pettinger, .

. 1244

Pettingill v. Evans,

. 2007

Petty V. Taylor, .

. 104

-Peyon v. Clarkte, .

. 1408

Peyton v. Hallett,

1646, 1649

V. Smith, 578, 579,

1488, 1498

Phelan v. Albany E. E. Co.,

. 2047

V. Moss,

. 50

Phelps v. Green, .

900, 904

V. Illinois Central R. E

,1112,1125

Phcenix Ins. Co. v. Hoffheim

er, . 956

Pherrman v. Koch,

. 403

Philadelphia v. Lockhardt,

1628, 1630

Life Ins. Co. v. j

imeri-

can Life Ins.

Co., . 1708

W. & B. E. E.

Co. V.

Woelper,1613

1616, 1619

Phillips V. Bank of Lewiston, 6

0, 148,

149, 1671

V. Bustard,

. 595

v. Claggett,

. 1669

V. Costley,

. 180

V. Croft, .

. 1990

V. HoUistor,

. 988

V. Hulsizer, 965,

1016, 1996

V. Medbury, 50

2, 506, 509

V. Monges,

. 1344

V. Morrison,

. 74

V. Mailings, 1252,

1257, 1259

V. Phillips,

343, 1344

V. Potter, .

962, 963

V. Eose, .

. 1106

V. Sears, .

. 1348

V. Stagg, .

. 1650

V. Thompson, 587,

1027,

1153, 1155

V. Winslow,

. 1616

Phillipson v. Kerry,

1192, 1252

Philpot V. Briant, .

. 1909

V. Elliott, .

980, 1010

Phyfe V. Warden, .

. 1010

Pichon V. M' Henry,

. 1373

Pickens v. Delozier,

. 1631

V. Finney,

. 1900

V. Pickens,

. 588

Pickering v. Bishop of Ely,

. 1103

' V. Busk,

. 61

V. Ilfracombe E. B

.Co.,

)

1666, 1667

V. Pickering, .

. 699

Pickett V. Loggon, 1238, 1244,

1245, 1246

Pielcher v. Eawlins,

. 34

PAGE

. 1616

. 53, 56, 58

. 1913

393, 394, 1411

1490, 1506

1728

2052

170

1987, 2010

. 209

. 1025

. 1355

. 2058

. 1343

. 952

. 213

. 1610

299, 300

. 1027

. 1139

65, 73

. 588

. 1112

Ins, Co., 954, 956

75

1153, 1823

Pierce v. Emery, .
V. Faunce, .
V. Goldsberry,
V. Jackson,
V. Melloy, .
V. Pierce, .
V. Puller, .
V. Eed Bluflf Hotel,
V. Eobinson, 1984,
V. Taylor, .
Pierrepont v. Barnard,
Piersoll v. Elliott, .
Pierson v. Williams,
Piggott V. Williams,
Pigott's Case, .
Pike V. Armstead, .
V. Galvin,
V. Goodenow, .
Pilling V. Armitage,
Pillow V. Pillow, .
V. Shannon,
Pinckard v. Pinckard,
Pinckney v. Hagerdon,
Pindar v. Eesolute F,
Pinfield v. Dunbar,
Pingree v. Coffin, .
Pinkerton v. Manchester & Law

rence E. E. Co., .
Pinkney v. Piukney,
Pinney v. Thompson,
Pintard v. Davis, 1900, 1905,
Pipkin V. Bond,

V. James, .
Pirnie's Estate,
Pitcairn v. Ogbourne,
Pitcher v. Livingston,
Pitkin V. Noyes,
Pittinger v. Pittinger,
Pittman v. Gaty, .
Pitts V. Cable,

V. Congdon, .
Pittsburgh E. E. Co. v. Barker, 84,

85, 87, 99
v.Mount Plea-
sant E. E.
Co., 1406, 2044
Place V. Sweitzer, . . , ,410
Plato V. Deuster, .... 1391

V. Eice 1988

V. Eoe, 1996

Pleasant's Appeal, .... 1801
Plimpton V. Fuller, . . 323, 341
V.Plimpton, . . .340
Plumb V. Fluitt, . . .54, 145
Plumer v. Eobertson, . . . 183
Plunkett V. Methodist Episcopal

Church 2070

Plymouth Bank v. Bank of Nor-
folk 1663

Pochley v. Pochley, . . .343

Poe V. Davis, 1631

Poillon V. Martin, 55, 57, 58, 1216,

1227, 1673
Poindexter v. Gibson, . . . 578

1662

331, 709

. 947

1917, 1921

1908

1117

541

992

194

1703, 1710

1036

. 188

1995, 1996

1915

TABLE OF AMERICAN CASES.

XCVll

PAGE

Poindexter v. M'Cannon, 1995, 1996, 1997
Pole V. Lord Somers, ' 809, 812, 831, 832
Polk V. Gallant, ... 36, 94

Poll V. Ford, 1915

Pollard V. Cocke, . . 95, 96, 224
Pollock V. Gilbert, . 1328, 1336

Pomeroy v. Manhattan Ins. Co., . 1643
V. Rice, . . . .670
V. Stevens, . 39, 222, 223
Pomfret v. Lord Windsor, . . 216
Pond V. Smith, .... 1347
Ponton V Ballard, . . . .220

Pool V. Gott, 1515

Pooley V. Harradine, 1898, 1917,

1918, 1919
Poor V. Carleton, 1354, 1412, 1413,

1414, 1415

V. Woodburn, . . 42, 43, 84

Pope V. Hatch, .... 1646

V. Pope, .... 1863

Porter v. Cole, . . . 213, 593

V. Dougherty, 1039, 1139, 1140

V. Green, . . .33, 2007

V. Jones, .... 1236

V. M'Dowell, ... 92

V. Miller, .... 1720

V. Parks, .... 61

V. Seisey, . . . .222

T. Townley, . . . 697

Portmore v. Morris, . . . 963

Portsmouth v. Shackford, . . 1866

Post V. Mackall, . 314, 316, 332, 574

V. Stevens, .... 571

Potter V. Chapman, . . . 1413

V. Hopkins, . 944, 947, 948

V. Kellogg, . . 1610, 1613

V. M'Dowell, ... 41

V. Stone, . . . .579

V. Tuttle, .... 1135

Potts V. Anstatt, ... 40, 81

Ex parte, .... 1502

V. Francis, .... 1638

V. Nathans, . . . 280, 1915

Powel V. Jeffries, .... 86

Powell V. Burroughs, . 2053, 2059

V. Burrus, .... 590

V. Cleaver, 784, 792, 801, 805, 809

V. Cooper,
V. Powell, .
V. Stewart, .
Succession of,
V. Watson, .

Powelton Coal Co. v.

Power's Appeal,

Power V. Reeder, .

Powers V. Bumeratz,
V. Butler, .
V. Fowler, .
V. Hale,
V. Mayo, .

Powers V. Mansfield,

Poyas V, Wilkins, .

Prater v. Miller, .

Pratt's Appeal,

VOL. n.

M'

1805
. 589
1335, 1381
. 592
1333, 1377
Shane, . 971
. 1727
. 1365
87, 1079
1379, 1384
. 1079
. 1035
. 1017
664, 785
^ . 1632
1713, 1723
1661, 1672, 1673

1368,

Pratt V. Carroll,
V. Chase,
V. Hoag,
V. Law, .
V. Pond,
V. St. Clair,
Succession of,
Pray's Appeal,
Preedy v. Holtom,
Preist V. Rice,
Prentise v. Foster,
Prentiss v. Acorn

PAGE

1018, 1114, 1138
. 1618
. 195
. 1114
. 1355
. 314
. 1902
1801, 1803
. 676
97, 224
. 1671
1036, 1037

Presbyterian Church v. Disbron, . 1864
Corporation v. Wal-
lace, . . .293
Preschbaker v. Feaman, . . 1999
Prescott, Ex parte, . . . 1652

v. Heard, ... 94

V. Hill, . . 1642, 1645
Preston v. Crowfoot, ... 42
V. Harris, .... 1350
y. Henning, . . 306, 1912
V. Hill, .... 1731
V. Lerceau, . . . 945
V. Stratton, . . . 1340
V. Tubin, . . . .199
Prettyman v. WUkey, . . 180

Prevost V. Gratz, . . . .549
Prewett v. Dobbs, .... 1988
Price's Appeal, .... 1264
Price V. Assheton, .... 1040
V. Dyer, . . 1019, 1022
V. Edmunds, . . . 1909

V. Green, .... 2063
V. Johnson, .... 1333
V. Junkin, .... 42
V. Kaines, .... 1991
V. M'Donald, 105, 146, 159,

160, 199, 221

V. Reynolds, .

V. Stone,

V. White,
Pring V. Olarkson, .
Pringle v. Dunkley,
Prior V. Panpraze,
Pritchard v. Todd,
Pritchell v. Sessions,
Proctor V. Ghilson,
Propent v. Parker,
Propst V. Meadows,
Prosser v. Edmunds,
Prothero v. Smith,
Protheroe v. Form an,
Prout V. Branch Bank,
Provost V. Rebman,
Prudhomme v. Vienne,
Pryor v. Wood,
Public Schools v. Health
PuUen V. Ready, .
Pulver V. Harris, .
Purcell V. Dunbar,

V. Macnamara,
V. Miner, .
V. Smith, .

1370,

1363
1623
201
1916
509
89
1113
175
946
1102
1380
J 636
. 1136
. 1374
. 1910
. 1009
. 592
53, 58
1643, 1644
1709, 1715
1641
86
1238
975

XCVIU

TABLE OF AMERICAN CASES.

PAGE

PAQK

Purdy V. Doyle,

257, 381, 389

Eapalje v. Nosworthy, . . . 543

V. Irwin,

. 1408

Earitan Water Power Co. v. Veghte, 155

V. Powers, .

. 415

Eatcliff V.Alison, . . . .999

Purnell v. Daniel, .

1414, 1415

Eathbone v. Warren, 1359, 1361,

Purple V. Hudson EiTer E. K. Co.,

1906, 1908, 1921

1624, 1625

Eathbum v. Colton, . . . 566

Purrington v. Pierce,

. 2005

Eatliff V.Davis, . . . .591

Pursel V. Pursel, .

. 570

Eawlin's Case, .... 1609

Purviance v. Holt,

. 1987

Bawling v. Stewart, . . . 2007

V. Sutherland

. 1897

Eawlinson V. Clarke, . 2052, 2063

Pusey V. Clemson, .

551, 555, 556

Eawson v. Samuel, 1339, 1343, 1344, 1346

v. Desbouvrie,

1708, 1716

Eay V. Brenner, .... 1899

Putnam v. Kichards,

. ! 917

V. Doughty, . 596, 1791, 1794

V. Eitchie,

. 1487

Eaybold v. Eaybold, . . .552

V. Eussell,

. 322

Eaymond v. Fitch, . . . 1625

Pye, Ex parte.

664, 675, 676

V. Squire, 1624, 1653,

Pyke V. Clark,

. 1913

1654, 1669

Pyle V. Bostock, .

. 1913

Eaynor V. Wilson, . . . .208

Pym V. Campbell, .

. 948

Eead v. Drake, . . . .1493

V. Lockyer, 796, 79

8, 800, 801, 873

V. M'Lemore, . . . 1729
V. Noe, 1143

Quackenbush v. Van Ee

per, . . 1414

Eeader v. Johnson, . . 54, 56

Quain's Appeal, .

. 1736

Eeading v. Weston, . . . 2006

Quin V. Brittain, .

. 2010

Eeam v. Parthemere, . . . 1280

V. Moore,

. 1627

Eearich v. Swinehart, . . 967, 1014

Quinn v. Hanford,

. 1671

Eeceivers v. Patterson Gas Co., . 1347

T. Eoacb, 999, 1

300, 1001,

Eeddick v. Jones, .... 84

1112, 1129

Eeddish v. Watson, . . . 1910

Quirk V. Eodman, .

. 2002

Eedfearn v. Ferrier, ... 60
■ V. Herrick, . . . 1672

Eaffensberger v. CuUison

,999,1000,

Eedman v. Chance, 1492, 1493, 1494

1011, 1024

Eeech v. Kennegal, . . . 1012

Kafferty v. Clark, .

348, 349, 350

Eeed v. Cole, . . . .205

Eagsdale v. Hagy, 1343,

1345, 1348, 1672

V. Davis 2007

Eaiford y. Eaiford,

. 580

V. Dickey, .... 68

Eailroad Co. v. Garrard

. 85

V.Eddy, . . . .699

V. Schaeffe

r, . . 1898

V. Garman, .... 83

V. Shippen

. 1373

V. Harvey, .... 1385

Eains v. Calloway,

. 988

V. Hornback, . . . 1029

Rainey v. Heath, .

. 706, 708

V.Kemp 40

V. Nance, .

395, 409, 410

V. Moore, .... 945

Eains v. Scott,

. 1363

V. Eyburn, .... 594

Eambler v. Tryon,

1283, 1284

V. Sheppardson, . . 395, 409

Eamsay v. Bell,

. 902

V.Smith, .... 43

Eamsbottom v. Gosden,

. 998, 1027

Eeeder v. Trotter, .... 1103

Eamsdale v. Horton,

. 1671

Eeel T. Peel 1284

Eamsey's Appeal, 88, 25

9, 260, 262,

Eees v. Berrington, 317, 1336, 1917, 1939

2

66, 267, 314, 316

V. Smith, .... 1133

Kamsey v. Ellis, .

. . .584

Reese v. Bradford, . 396, 397, 399

V. Perley, .

. 1373

y. Graham, . . ... 589

V. Eamsey,

. 595

Reeves v. Ayres, . . . 180, 395

Eamson v. Brinckerhoff

. 1276

V. Cooper, .... 1369

V. Hay, .

. 1986

Reichert v. M'Clure, . . .224

Band v. Eedington,

. 1388

Eeid V. Burdon, . . 1112, 1119

Eandall v. Phillips,

104, 155, 965

v. Cox, 1906

V. Eussel, .

697, 699, 708

Reigard v. M'Neil, . . . 1983

V. Silverthorn,

155, 162, 185, 221

Eeigle V. Leiter, . . . .317

Eankin v. Barnard,

. 830

Eeilly v. Jones, . . 2052, 2058

V. Jones, .

. 397, 399

y. Meyer, . . 280, 286, 311

V. Mazwell,

. 1153

Reinheimer v. Hemingway, . 409, 410

V. Mortimere,

?83, 1734,

Eeitenbaugh v. Ludwig, 1985, 1987,

1735, 1984

2003, 2005

Eansom v. Van Devente

r, . 394, 401

Eembert v. Brown, . . . 1415

Eansome v. Frayser,

. 1995

Kemington v. Irwin, 1112, 1129, 1134

TABLE OF AMERICAN CASES.

XCIX

PAGE

PAGE

Eemington v. Kelley,

1135, 1136

Rickard v. Eickard,

. 898

Kemsen v. Beekman,

. 1905

Rickets v. Livingston,

. 830

V. Graves,

. 1916

Ricketts v. Johnson,

1389, 1392

Eenn v. Samos,

. 593

Eickman v. Morgan,

. 799

Eennells v. Bullen,

. 264

Eider v. Gray,

1117, 1129, 1155

Kenshaw v. Gans, .

967, 969, 1014

V. Johnson, .

. . . 1671

Kenton v. Chaplain,

. 393, 408

V. Powel,

. 981, 988, 1002

Keservoir Company v. (

Dhaae, . 1669

V. Wager,

. . . 332

Beubens v. Joel, .

. 1353

V. Wagner, .

. 649, 666, 833

Eeuss V. Picksley, .

. 1094

Eidgely v. Carey, .

. 418

Bevalk t. Kraemer,

. 1392

V. Gittings,

. 573

Bex V. Bobbins,

. 1526

Eidgway v. Bank of Tei

messee, . 1370

V. Greenhill, .

. 1526

V. Bowman,

. 945, 946

V. Wilson,

. 1526

V. Clare, .

. 416

Reynolds v. Brandon,

1703, 1725

Eiesz's Appeal,

1149, 1150

V. Haine,

. 1375

Eiggs V. Hamley, .

. 1704

V. Harshaw,

. 1-395

V. Johnson Count

y, . 1402, 1404

V. Kingsbury,

. 206

Eigney v. Lovejoy,

. . . 1667

V. Noble,

. 1244

Eiley v. Kershaw, .

. 1729

V. Pelt, .

. 1134

Eing V. Bank,

. 1899

V. Pitt, .

. 2045

V. Franklin, .

966, 1986, 2005

v. Eeynolds,

348, 349, 352

V. Gray,

. 224, 1631

V. Tooker,

. 271, 286

V. Simpson, .

. 1990

V. Ward, .

. 1909

Einggold V. Bryan,

. 154, 180

V. Weller,

. 1037

V. Einggold,

572, 573, 1794

Rhett V. Mason,

. 1859

V. Stow, .

. 593

Ehines v. Baird,

. 47

V. Waggoner,

. 154

Ehoads v. Frederick,

. 1911

Eipley v. Greenleaf,

. 1916

Ehod?s V. Bates, 1192, 1

194, 1217,

V. Waterworth,

. 1084

'

1224, 1227

Eipple V. Eipple, .

.' 148, 152

V. Childs, .

. 1653

Eisen v. Knapp,

. 43

Eice V. Austin,

. 394, 411

Eisly V. Smith,

. 1645

V. Bank,

. 1368

Eittenhouse v. Kemp,

. 1908

V. Barnard,

. 399

Eives V. Eives,

. 1346

V. Bixler,

. 1703

Eixby V. Higgins, .

. 224

V. Ishara,

. 1910

Eoach V. Cosine, .

. 965,1986

V. Rice, .

1992, 1997, 1998

V. Dickinson,

. 1106

V. Stone,

1605, 1624, 1625

V. Jelks,

. 590

V. Tonnele,

. 1500

V. Simmons,

. 1909

Eich V. Doane,

1995, 1999

Eobarts v. Wortham, 3

24, 328, 331, 333

V. Jackson,

. 996, 998

Eobb's Appeal,

. 559

V. Eoberts,

. 222

Eobb V. Graham, .

. 1273

Eichard v. Humphreys,

675, 783,

V. Halsey,

1373, 1381

789

, 800, 801,

V. Mann,

1108, 1109

802

, 803, 808, 810

V. Mudge, . 39

9, 405, 406, 407

Eichards v. Commonwea

1th, 1899, 1901

V. Stevens, .

. 418

V. Gray, .

. . 1118

Eobbins v. Bacon, .

1642, 1647

V. Green,

. 1077

V. Hanley,

. 1347

V. Griggs,

. 1660

V. Mount,

. 1373

V. Symes,

. 1378

V. Woloott,

. 569

Eichardson v. Barrick, .

1983, 1996

Eobert v. Thomas,

. 1800

V. Duncan,

. 1248

Eoberts v. Anderson, 42,

185, 1351,

V. Mellish, .

1630, 1713

1

412, 1413, 1415

V. Eichardso

n, . . 1510

V. Baker, .

. 395, 396

V. Eowland,

1636, 1641

V. Bourne,

. 208

V. Thompson

, . . 966

Case,

. 540

V. Williams,

1343, 1377

V. Cooper,

1632, 1636

Eichmond v. Dubuque B

.. E., 1104, 1151

V. Dillon,

. 43

V. Gray,

L118, 1128, 1139

V. Fleming,

170, 195, 2011

V. Marston, .

. 287

In re.

. 539

EaiLroad Co.

V. Shippen, 1376

V. Salisbury,

. 103, 105

Richmondville Co. v. Pr

att, . .1663

V. Stanton,

. 148

Riehson v. Eichson.

. .89

V. Trawick, 12

66, 1276,

Eichter v. Selin, .

1108, 1109

1280, ]

281, 1283, 1285

TABLE OF AMERICAN CASES.

Eoberts y. Weatherford.
Eobertson v. Collier,

V. Hadlyme,
Robeson v. Hornbaker,
Eobinett's Appeal,
Eobinson v. Addison,

V. Allen,

V. Bank,

V. Cropsey, 1996,

PAGE

. 783, 785
. 712
. 1283
1030, 1031
550, 552, 1805
. 660
. 1860
. 382

V. Dauchy,

V. Eldridge,

Estate of,

V. Farelly,

V. Gee, .

V. Hutchinson,

V. Leavett,

V. Loomia,

V. Macdonnell,

V. Miller,

V. Pett, .

Y. Eidley,

V. Robinson,

V. Shortridge,

V. Wheeler, 1 340,

1998,

2002, 2047

. 43

. 967

. 560

1984, 1991

. 343

. 1283

291

2050,' 2056

1613, 1621

. 1906

. 538

. 2013

1236. 1607

. 1363

1343,

1305, 1366, 1373, 1383, 1384

v. Whitely,
V. Willoughby,
Robouam v. Eobouam, .
Eobson V. Harwell,
V. Pearce, .
Eockafellow v. Newcomb,
V. Newland,
Rodgers v. Bonner,
V. Lindsay,
V. Meranda,
V. Rodgers,
Rodick v. Gandell,
Rodman v. Munson,
v.Zilly, .
Roe V. Hodgson, .

y. Taylor,
Rogan V. Walker, .
Roger V. Hosack, .
Rogers y. Atkinson,

V. City of Cranworth,
y. Colt,
y. Farmere,
y. Gibson, .
y. Gwynn,
V. Hall,
, Hassey,

94

1997

592

978

1366

1232

1192

91

1659

417, 418, 420

. 707, 1415

1648, lt57

. 1720

1032, 1036

. 1488

1273, 1274

1984, 1988

. 1645

1654,

993
1390
961
. 185
90, 91
1396, 1398, 1400
. 106, 108, 109
. 94
y. Higgins, 1231, 1242, 1263, 1636
y. Hoskins, . . . 146
V. Jones, 97, 145, 160, 183, 186, 187
y. Kayanaugh, . , . 205
y. New Jersey Ins. Co., . 1664
y. Eogers, 323, 325, 346, 1865
y. Saunders, 999, 1093, 1136, 1139
V. Searl 64

y. Spence, .

y. Willy, .
Eolston V. Brockway,
Eonnell y. Barnett,

. 1623

158, 223

. 1667

. 794

Eoot V. French,
Eose V. Association,

V. Baker,

V. Williams, .
Eoss y. Barclay,

V. Buchanan, .

V. Cobb, .

V. Fnay, .

V. Harper,

y. Hole, .

y. Horton,

V. M'Laughlin,

V. Rail Road (;o.,

y. Wilson,
Roswell Y. Bennett,
Routlidge v. Grant,
Row y. Dawson,
Rowan y. Adams,

1907,

PAGE
. 43

. 549

. 1667

1912, 1917

. 382

. 1351

. 1899

. 396

. 1328

. 213

. 171

. 1715

. 1823

. 980

790, 815

. 1089

61, 1647

87, 148

V. Sharp's Rifle Co., 306,

1618, 1907, 1908
Eowe y. White, . . 706, 707, 708
Eowlandson, Ex parte, . 399, 416, 419
Rowley v. Bigelow, ... 43
Roxborough y. Messick, . . 82
Royall y. M'Kenzie, . . . 1792
Royer's Appeal, . . . 554, 1805
Royston y. Howie, .... 1900
y. Rojrston, . . 586, 915
Rueker v. Robinson, . . ^1911
Ruckman v. Astor, . . '. 2008

y. Decker, ... 46
Rudy y. Ulrich, . . 1268, 1273
V. Wenner, .... 1671
Ruff y. Summers, . . . 581, 583
Ruffier V. Womack, 1016, 1989, 1997, 1999
Ruffin, Ex parte, 396, 398, 399, 400,

402, 407, 427
Ruffner y. M'Connell, . . .982
Ruggles V. Barton, . . . 2008

Ruggs y. Ellis, .... 1632
Runyan v. M'Clellan, . . .225
V. Mercereau, . 1667, 2007
V. Merriman, . . . 1642
Rupert V. Mark, 101, 147, 209, 213, 221
Ruscomliey. Hare, . . . 1941
Ruse y. Life Ins. Co., . . 972, 973
Rush V. State, . . . .286

Russ V. Fay 395, 410

Russell's Appeal, 48, 204, 1108,

1192, 1212, 1251, 1257, 1261

Russell y. Blake,
V. Clark,
V. Cook,
V. Hester, .
y. Jackson,
y. Kenney,
y. NichoU,
V. Petree, .
V. Slaton, .
y. Southard,

y. Swazey, .
Rust V. Billingslea,
y. Lance,

. 2010

1351

1711, 1720

313

978

1990

. 1105, 1107

146, 159

. 1333

1987, 1989,

1991, 1995, 1997

. 185

. 587

. 1639

1710,

1093,

TABLE OF AMERICAN CASES.

01

Rust V. Nace, .
V. Ware,
Ruston V. Ruston, .
Rutgers V. Kingsland,
Ruth V. Ford,
Rutherford v. Huff)

PAGE

. 1380

1348, 1387

324, 325, 332

. 33

. 85

1213, 1215, 1242

Rutledge v. Hazlehurst, . 322, 390

Ryall V. Rowles 51, 54, 1224, 1665, 2008
Ryan v. Danlap, .... 1667

V. Martin 1224

Ryland v. Kreitman, . . . 1107
Ryno V. Darby, 999, 1023, 1026, 1028

Sabin v. Bank of Woodstock, . 1665
Sage V. Chollar, . 396, 399, 401, 404
Sagitary v. Hyde, .... 260
Sailly V. Elmore, .... 1899
Sailor v. Hertzog, . . 180, 182, 188
St. Felix V. Rankin, . . .916
St. John V. Benedict,

V. Charles,

V. Conger,
St. Leger's Appeal,
St. Loviis V. Clemens.
St. Mary's Church v. Stockton,
Salisbury v. Morris,

V. Phillips,
Salmon v. Claggett,
Saltonstall v. Gordon,
Saltus V. Everett, .
Sample v. Barnes, .
Sams V. Tripp,
Sanborn y. Flagler,

V. Woodman,
Sand V. Lacoste,
Sanders v. Bolton, .

V. Cook,

V. Rogers, .

V. Young, .
Sanderson v. Stockdale,
Sands v.JVIatthews,
Sanford v. McLean,
Sansom v. Rhodes,
Sappington v. Oeschli,
Sargeant v. Sargeant,
Sargent v. Lamed,

V. Matthewson,

V. Sterne, .

V. Storm, .
Sarter v. Gordon, .
Sasportas v. Jennings,
Sasscer v. Young, .
Sasser v. Jones,
Satterthwaite v. Littlefield,
Saunders v. Albreton,
V. Cramer,
V. Dehew,
V. Dicken,
V. Frost, .
V. Gregory,
V. Houghton.
V. Stewart,
Savage v. Allen, .

V. Everman,

. 1649
206, 208
. 1276
. 1628
. 2069
. 195
909, 912
102, 104
. 1733
. 61
1358, 1362
. 1093
1093, 1095
1134, 2044
. 1673
. 222
. 273
. 1803
404, 408, 410
396, 401, 404
1643, 1650
279, 287, 288, 290
. 1105
92, 95
. 1673
. 1703
. 1507

. 94
1032, 1116
. 1249
. 1907
. 1362
590, 591
. 1369
. 1082
. 34
. 71
. 2007
. 1804
698, 711
. 1988
. 1363
. 1396

PAGE

Savings Bank v. Ela, . 1906, 1911
Savory v. Browning, . . . 226
Sawyer v. Bradford, . . . 1900
V. Gill, .... 1396
V. Hovey, .... 981
Say V. Barnes, .... 562
Sayer v. Sayer, . . . 337, 352
Sayles v. Tibbitts, .... 1633
Scarlet v. Gorham, . . . 198

Scarlett v. Hicks 1416

Schaeflfer v. Fithian, . . .396
Schaw V. Schaw, .... 577
Schell V. Erie R. R., . 1363, 1395

V. In re, . . . 540, 541

Schemerhorn v. Merrell, . . 1416

Schenck v. Dart, .... 544

V. Schenck, . 1793, 1796

Schmidt v. Gatewood, . . .1016

V. Labutut, . . .983

V. Livingston, . 1017, 1137

Schmitt V. Hey wood, . . .1015

Schneider v. Morris, . . . 1102

Schnell v. Neel, .... 2055

Schoale v. Lefroy, . . . .1092

Schofroth v. Ambs, . . . 1101

Schooiey v. Romain, . . . 2050

Schrader v. Decker, . 1216, 1265

Schroeppel v. Hopper, . . 1138

V. Shaw, 309, 312, 1363,

1903, 1913, 1917
Schryver V. Teller, . . .296

Schulter's Case,
Schu maker v. Eby,
Schumpert, Ex parte,
Schutt V. Large, _ 33, 34,
Schuyler v. Pellissier,
Scoby V. Ross,
Scott's Appeal,
Scott V. Atchinson,

V. Billgury, .

V. Dorsey,

V. Fields, . 1119,

V. Fink,

V. Gallagher,

V. Guernsey,

V. Henry, . 1990,

V. Hull,

V. Morris,

V. Porcher,

V. Sadler,

V. Shinn,
Scoville V. Kennedy,
Scribner v. Lockwood,
Scroggins v. Dougal,
Scudder v. Crocker,

V. Van Amburgh
Seaman v. Seaman,
Seamen v. Rensselaer,
Searchet v. Searchet,
Sears v. Dixon,

V. Laforce,

V. Munson, .

V. Shafer, 1192, 1213,

. 952
. 1652
. 1522
40, 204, 213
. 1393
. 1638
. 554
. Ig04
. 1151
. 572
1123, 1138
. 987
184
917
1995, 1997
1913
1628
1657
1674
1337
, 911
, 225
182
565
196
1719
1039
1341
1996
306
. 180
1214,
1231, 1264

907,
94

1992,

cu

TABLE OF AMEEIOAN CASES.

961

Seawell v. Greenway,
Sebring v. Monroe,
Secor V. Woodward,
Secrest v. M'Kenna,
Sedam v. Williams,
Sedgwick v. Stanton,
Seguine v. Seguine,
Seibert's Appeal, .
Seitzinger v. Bidgway,
Selby V. Geines,
V. Giving,
Selden's Appeal,
Selden v. Myers, . . 944,

V. Randall, .
Selks V. teacup.
Sellers v. Ashford, .

V. Jones, ■ .
Selwood V. Mildmay,
Semmes v. M'Ewen,
V. Mayor, .
Semple v. Burd,

V. M'Gatagan,
Seneca County Bank v. Neass,
Scnseman's Appeal, . 1494, 1495
Sergeant v. Ingersoll, 47, 68, 165,

166, 188
Seth V. Allen, .... 1373

Seton V. Slade, 1022, 1039, 2046, 2047
Severs v. Delaschumitti, . .92
Sewel V. Bitters, .... 1489
Sewell V. Freeston, . . . 1378

Seymour v. Delaney, 999, 1032,

1033, 1034, 1117

PAGE
1791

919

1371

1039

399

1635, 1636

1272, 1273

1502, 1504

1029

982

980

1492

1245

'. 1339

. 1989

. 579

. 313

674, 675

. 1040

. 1413

. 95

. 1373

. 171

V. Railway Co,
Shadwell v. Shadwell,
Shafer v. Davis,
V. Niver,
Shaifer v. Cross,
Shailer v. Bumstead,

1194,

Shannon v. Marselis,
Sharkey v. Sharkey,
Sharp V. Fagin,

V. Trimmer,
Sharpe v. Banks, .
Sharpless v. Welsh,
Shattuck V. Cassidy,
Shaver v. Woodward,
Shaw V. Burr,

V. Church, .

V. Erskine, .

V. Irwin,

V. Long,

V. M'Farlane,

V. Poor,

V. Thackeray,

V. Whiteman,

V. Wilkins, .
Shay v. Norton,
Shedd V. Wilson, .
Shedeker v. Pearson,
Sheeper v. Williams,
Sheer v. Bank of Pittsburgh,
Sheets v. Selden, .

1616, 1619
. 1082
. 1734
. 1112
. 592

1265,

1279, 1281
. 293
. 1993

1911, 1912

1112, 1113, 1135

. 1492

1645, 1658

1823, 1830
. 1987
. 289
. 1916
. 1993
. 919
. 62
. 1921
. 204

1036, 1037
. 1710
. 1106

1017, 1991

393, 395, 410

. 1389

. 2052

2006

1358

Sheffield v. Earl of Coventry,

1938,

196,

FA am

670

1939

1343

1667

1737

1375

202

1901

579

1623

1034, 1035

387, 388

. 2055

. 576

. 293

. 204

. 580

1719, 1720

1355, 1356

. 1415

. 1210

. 278

. 1502

. 1631

. 1012

Sheidle v. Weishlee,
Shelby v. Marshall,
Sheldon v. Sill,
Shelley's Case,
Shelmire v. Thompson,
Shelton v. Johnston,
Shenaden v. Parker,
Shepard v. Parker,
Shephard v. Commonwealth,
Shepherd v. Bevin,

V. Lutwidge,
Sheppard v. Koades,

V. Stark,
Shepperd v. Adams,
Shere v. Lasear,
Sherill v. Shuford, .
Sherman v. Bernard,

V. Fitch, .
Sherrell v. Harrell,
Sherry v. Sansbury,
Sherwood v. Collier,

V. Smith,
Sherwood v. Waller,
Shields v. Trammel!,
Shiell V. M'Knitt, 2054, 2058, 2061,

2067, 2069, 2072

Shimer v. Jones, .... 1905

Shinnv. Budd, . . . .287

Ex parte, .... 1524

Ship Warre, In re, . 1613, 1621

Shipman v. iEtna Ins. Co., . . 1664

Shipp V. Hettrick, .... 1804

v. Swan, .... 993

Shirley v. Kiggs, .... 1633

V. Shattuck, . . 539,591

V. Shirley, .... 1092

Shirras v. Craig, ... 47, 67

Shirtleffv. Witherspoon, . . 590

Shrively v. Welch, . . .980

Shoever v. Whitman, . . . 1632

Shong V. Wilkinson, . . . 597

Shortall v. Hinkley, . . . 1632

V. Mitchell, . . . 1113

Shortride v. Cheek, . . . 1030

Shortridge v. Bartlett, . . . 1333

Shortwell v. Murray, . . . 1734

Shottenkrick v. Wheeler, . . 1374

Shotwell V. Harrison, . . . 1610

V. Jefferson Ins. Co., . 1110
Showman v. Miller, . . 982, 983
Shreeve v. Shreeve, 324, 325, 339, 340
Shreve v. Brereton, 2057, 2059, 2063,

2064, 2066, 2067

V. Joyce,
Shryock v. Wagoner,
Shulters v. Johnson,
Shults V. Moore, .
Shunk's Appeal, .
Shute V. Hamilton,

V. Taylor,
Sibbald's Estate, .
Sibley v. M'Allaster,

V. Perry,

1792

. 90

347, 349

. 206

258, 559

2060, 2063

2053, 2069

1627,. 1628

1899, 1904

653, 661

TABLE OF AMERICAN CASES.

cm

Sibthorp v. Moxom,
Sidwell V. Evans, .
Siegler v. Ohidsey,
Sieman v. Schurk, .
Sigler V. Knox County Bank,
Sigourney v. Clark,

PAGE

. 833
. 87
. 396
. 90
396, 403
. 1712

V. Mann, . 154, 189, 221
Sikes V. Lister, .... 1084
Silk V. Prime, . . . 322, 328
Silver Lake Bank v. North, . . 260
Simmons' Estate, . . . 598, 599
V. North, . . .989
V. Vallance, . . .661
Simmons v. Will, . . . .999
Simons v. Richardson, ... 73
Simpson v. Ammous, . . . 2007

V. Blunt 1906

V. Breckinridge, . . 1098

V. Clyde 351

V. Egginton, . . .289
V. Hart, 1334, 1363, 1364,

1365, 1379, 1415, 1796

Sims V. De Graffenreid, . . 1632

V. Hammond, ... 57

V. M'Ewen, . 1026, 1027, 1151

V. Sims, 35^, 782, 785, 809, 812

Sinclair v. Jackson, . 1795, 1798

Singer v. Craigue, .... 205

Sinnickson v. Johnson, . . . 1412

Six William Herbert's Case, . . 294

Sisk V. Garey, . . 1388, 1389

Siter's Appeal, . . 1108, 1110

Siter V. M'Clanachan, 47, 53, 204, 220

Sitler V. Walker 410

Skarfe v. Jackson, .... 947
Skeel V. Spraker, . . . .293
Skilton V. Tiffin, . 1370, 1371, 1375
Skinner v. Dayton, 2044, 2047, 2051, 2056

Skinner's Estate,

V. Harner,

In re,

V. Miller, .

V. Smith, .

V. White, .
Skipper v. Stokes, .
Skrine v. Walker, .
Slack V. Bird,

V. Wood,
Slade's Case, .
Slanney v. Style, .
Slaughter v. Foust,

V. Tindale,
Slayter v. Green, .
Slee V. Manhattan Co., 965, 1985,

1986, 1996, 1998
Slipper V. Lane,
Sloaman v. Walters,
Sloan V. Maxwell, .
Slocumb V. Marshall,

V. Mayberry,
Slosson V. Beadle, .
Sloway V. M'Murray,
Small V. Herkimer Man. Co., . 2046
V. SmaU, 1266, 1267, 1272, 1282

558
. 283
. 915,1527

1984, 1992

. 2006

104, 1335, 1415

1605, 1628
. 1860
. 570

1335, 1384
. 1319
. 699
. 1667

1018, 1153
. 154

1341

1104, 1105

. 1281

. 1205

1402, 1403, 1410

2052, 2058

1990, 1906

Smally v. Ellett,

PAGE

. 62

Smart v. Sanders,

. 1656

Smeed v. White,

. 1901

Smiley v. Bell,

. 1670

Smith's Appeal,

. 170, 223, 552

Smith V. Allen,

. 990, 1335

v. American

Life Ins. Co.,

1391, 1395, 2005

T. Anderson,

. . . 408

V. Bank,

72, 89, 1409

V. Barham,

. 698

V. Barker,

. 408

V. Beatty,

. 1242

V. Bell,

. 697

V. Berry,

. 1671

V. Brower,

. 1119

V. Brush,

. 103

V. Busby,

. 963

V. Byers,

. 1804

V. Cheney,

. 592

V. Dallas,

. 945

V. Doyle,

. 1996

V. Elliott, 1236, 1237, 1242, 1244

V. Penner,

. 1283

V. Ferguson,

. 2068

V. Fitzgerald, . . .653

V. Fulton, .

. 1341

V. Greeley,

. 993, 1009

V. Hall,

. 214

V. Haviland,

. 404, 405

V. Hays,

. 1359

V. Howard,

. 393

In re, .

393, 408, 409, 410

V. Jewett,

. 2048

V. Jones,

. 1644

V. Jordan,

. 987, 988

V. Kelly,

. 1151

V. Kennard,

. 588, 589

V. Lambeth,

. 222

V. Lampton,

. 652, 655

T. Lawrence

1135, 1140

V. Low,

. 182

V. Lowry, I'c

29, 1369, 1373,

1378, 1382

V. Lurch,

. 93

V. M'Dougal

. 1734

V. M'lvor,

1350, 1357, 1363

V. M'Veigh,

. 1078

V. Mallory,

. 418, 419

V. Mariner,

. 2046

V. Marshall,

. 821

V. Monteith,

1723, 1724

V. Moore,

. 2007

V. Myler,

. 1342

V. Neale,

. 1094

V. New York & New Haven

R. E. Company, . . 1 626
V. Parks, . . 1988, 2007
V. Pencombe, . . . 1727
V. People's Bank, . . 1992
V. Peoria, . . . .1914
Petition of, . . . . 1513
V. Powell, . . . .1373
V. Bice, . 1907, 1908, 1915

CIV

TABLE OF AMEKICAN CASES.

PAGE

Smith V. Eockafeller, .

. 548

V. Sherman, .

. 1625

V. Shuler,

. 2007

V. Siske,

. 1987

V. Smith, 702, 907, 912, 916,

1006, 1505, 1512, 1802
V. Steele, .... 1908
V. Townsend, 1228, 1229,

1260, 1906, 1939

V. Tunno 1917

V. Turner, .... 1914

V. Turpentine, . . .989

V. United States, . . 306, 1906

V. Wainwright, . . . 2068

V. Walker, .... 1335

T. Williams, . . .972

V. Wykoff, . . . .256

V. Yule, . . . .182

V. Zurcher, .... 98

Smithurst v. Edmunds, . . . 1620

Smoot V. Eex, . 1112, 1131, 1154

Snediker v. Pearson, . . . 1358

Snelgrove v. Snelgrove, 44, 62, 67,

Snifer v. Sass,
Snodgrass' Appeal,

393,

34

Snook V. Snitzer, .
Snow V. Collum,

V. Stevens, .
Snowman v. Harford,
Snyder's Appeal, .
Snyder v. Griswold,

V. May,

v. Spaulding,

V. Sponable,

V. Warbasse,
Soheir v. Williams,
Soles V. Hickman, .
Solliday v. Bisset, .
Solms V. M'Cullough,
Somers v. Eanphrey,
Somes V. Beaver, .

V. Brewer, .

V. Skinner, .
Somner v. Wilt,
Sosatas v. Jennings, . . . 1245
Souden v. Blythe, .... 1265
Souder v. Morrow, ... 40, 81
Souffrain v. M'Donald, . . . 1090
South, Ex parte, .... 1647
Southard v. Central E. E. Co., . 1609
Southerin v. Meudum, . . . 1667
Sowle V. Holdridge, . . . 1704
Soy V. Dascomb, .... 1669
Spackman v. Ott, ... 37, 87
Spade V. Smith, . . . .700
SpatFord v. Weston, . . 153, 222
Spain v. Hamilton, 1642, 1647, 1660, 1665
Spalding v. Alexander, . . . 1112
V. Bank, . . . .312
Spang] er's Estate, .... 561
Spangler v. Shuffer, . 1901, 1916

102, 106, 180
. 426
396, 397,

400, 409

1396, 1397

581

2007

1138

558

2003

980, 983, 988, 989

1112, 1119,

1133, 1135

. 169

349, 350

. 1118

1028, 1030

560, 561

. 214

. 1242

. 1265

41, 42, 213

963, 1212

. 1626

PAGE

Spann v. Jennings, . . ■ 1391

Sparhawk v. Buell,1500, 1503, 1794, 1797

V. Eussel, . 423, 424, 426

Sparks v. Cator, . . . .790

V. Liverpool Water Works,

2045, 2046
V. Weedon, .
Speakman v. Forepaugh,
Spear v. Smith,

V. Spear, 1487, 1491

V. Tinkham,
Speed V. Morris,
V. Nelson,
Speight V. Speight,
Speiglemyer v. Crawford,
Spence v. Whittaker,
Spencer's case,
Spencer v. Higgins,
V. Spencer,
V. Tilden, .
Spering's Appeal, .
Sperry's Estate,
Spielat V. Lechmere,
Spiker v. Nydegar,
Spohr V. HoUingshead,
Spraker v. Van Alstyne,
Sprigg V. Bank,
Sprigle V. Shields, .
Springer v. Toothaker,
Springs v. Harren,
Sprott V. Baldwin,
Sprowl, Succession of,
Spurck V. Crook, .
Spurhill V. Cannon,
Spurrier v. Fitzgerald,
Squier v. Campbell,
Stackbridge Iron Co.

Iron Co.,
Staflford v. Ballou,
V. Bryan, .
In re,
V. Lick, .
V. Beekman,
Stainbank v. Davies,
Staley v. Murphy, .
Stanbury v. Smith,
Standclift v. Allen,
Stanhope v. Varney,
Stanley's Appeal, .
Stanley v. Beatty, .
Estate of, .
V. Perley, .
V. Potter, .
V. Eoberts,
Stansell v. Eoberts,
Stanton v. Small, .
Stapilton v. Stapilton,
Stapvlton V. Scott, .
State'v.Baird, 1497, 1511
V. Banks,
V. ('arleton, .
V. Kispert,
V. Foy, .

648, 650
. 1118
2054, 2059
1492,

1500, 1805

698, 707

. 383

. 888

. 104

. 1633

. 587

. 910

647, 672, 673

548, 1800

2058, 2060

. 2004

383, 418, 423, 426

. 1621

. 1641

1720, 1731

331, 654

1331, 1917

1149

1901

2044,

1517

590, 591
592, 1804
1388
. 579
. 1028
. 1007
Hudson

. 1010
. 154
. 104
. 1805
39, 222
830, 832
1919
1124
1644
1913
74
1726
2009
1805
93, 96
666
93
215
1610
1510
1026
1522, 1523
1506, 1510
1914
1391
578, 579, 1804

1212,

TABLE OP AMERICAN CASES.

CV

PAGE

PAGE

State V. Guilford, .

1791, 1793

Stevenson v. Morse,

,

. 204

T. Harmer,

. 1804

V. Phillips,

. 569

V. Le Faine, .

. 945

Steward v. Carr,

. 1383

V. M'Auley, .

. 1804

V. Eden, .

. 1671

V. Meagher, .

. 1791

Stewart v. Ahrenfeldt, 1710,

1720,

V. Mebane,

. 1804

1731, 1732

V. Payne, . 1507,

1523, 1524

V. Baldwin,

. 919

T. Piatt, . .

. 571

V. Bradford,

1713, 1723

V. Persey,

. 1804

V. Brand, .

. 988, 1002

V. Eichardson, 1490,

1506, 1510

V. Coulter,

. 863, 1341

V. Scott,

. 1490

V. Freeman,

. 94, 225

V. Sibley,

. 1510

V. Hall, .

. . 214

v. Smith, . 1510,

1515, 1527

V. Kirkland,

. 1671

T.Stigal, 1507, 1517, 1521

, 1523, 1525

V. Lispenard, 1037,

1242, 1282

V. Warrington,

. 710

V. M' Sweeny,

. 206

State Bank v. Bozeman,

. 1365

V. Miller, .

. 1720

V. Hastings,

. 1630

V. State, .

. 1237

V. Locke,

. 1921

V. Stewart, 589,

1213

1231, 1731

V. Marsh,

. 569

Stiekney v. Davis, 647, 656, 657, 674

V. Stanton, 1333,

1369,

Stilwell V. M'Donald,

41, 92, 225

1376, 1382

Stine V. Shirk,

. 980

V. Tweedy, .

. 2009

Stinnett v. Branch Bank of Mobile,

Stanffer v. Latshaw,

. 1245

1373,

1382, 1385

Stead V. Dawber, .

1020, 1021

Stires v. Stires,

. 339

Steamship Co. v. Brown,

. 947

Stockett V. Taylor, .

. 154

Stearly's Appeal, .

. 550

Stockton V. Union Oil C

0.,

. 1147

Stearnes v. Barrett,

. 2059

V. Williams,

. 1631

Stearns v. Felkuer,

. 1638

Stoddard v. Smith,

. 1144

V. Hall, .

. 1021

Stoddart v. Mix, .

. 1710

V. Johnson,

1729, 1733

V. Eotton,

. 2005

Stedman v. Weeks,

906, 915

V. Whiting,

. 1986

Stedwell v. Anderson, .

. 985

Stoddert v. Tuck, .

. 1028

Steel V. Black,

. 1999

Stoever v. Rice,

. 1109

V. Stamps,

. 1028

V. Stoever,

. 1987

Steele v. Biggs,

. 1119

V. Weir, .

. 951

V. Branch, .

. 2045

Stokeley v. Stokeley,

1715, 1717

V. Spence, .

. 40

Stokes V. Jones,

. 961

V. White, . 1704,

1723, 1735

V. Knarr, .

. 1401

Stehman's Appeal,

550, 551

V. Kramer,

. 1369

Stell's Appeal,

. 1795

Stone V. Elliott, .

. 197

Stemper t. Johnson,

. 1987

V. Ellis,

. 2044

Stephen's Appeal, .

. 552

V. Hale,

980, 983

Stephens, Ex parte,

. 1343

V. Lawman, .

. 1729

Stephenson's Estate,

557, 562

V. Locke,

. 1667

Stephenson v. Haines, .

. 1992

V. Schultz, .

293, 2007

y. Stephenson,

. 594

Storch V. Carr,

. 1990

V. Taverner,

1337, 1898

Storms V. Storms, .

. 806

V. Yondel, .

. 594

V. Thorn, .

. 1915

Stepp V. Phelp,

. 1988

Story V. Lord Windsor,

63, 1108

Stepto V. Harvey, .

1914, 1917

Stotesbury v. Vail,

. 1412

Sterling v. Brightbill, .

274, 276

Stout V. Clark,

. 649

Sterner v. Gower, .

. 990

V. Hart,

64

3, 668, 669

Sterrett's Appeal, . 552,

1794, 1795

Stoutenburgh v. Tomkin

s,

. 999

Stevens v. Brown, .

. 206

Stover V. Bounds, .

. 1984

V. Cooper, . . 307,

963, 1021

V. Ecclesheimer,

1606, 1607

V. Goodenough,

148, 154

V. MitcheU,

. 1735

V. Gregg, . . 32;

i, 341, 348

Stow V. Kussell,

. 1119

V. Judson,

. 961

Stowe V. Bowen,

. 1792

V. Lockwood,

. 1644

Strafford Bank v. Crosbj

t

. 1910

V. Stevens,

1350, 1666

Stratchmore v. Bowes,

. 1413

Stevenson v. Black, 284, 318,

1337, 2009

Streator v. Jones,

965,

1988, 1989

V. Cozzens,

. 974

Streeper v. Williams, 2

058,

2060, 2068

V. Gregg,

. 324

Street v. Sprout, .

. 2008

V. Maxwell, .

. 547

Streeter v. Kush, .

. 2052

CVl TABLE OP AMERICAN CASES.

PAGE

PAGB

Stretch V. Watkins,

. 1502

Tabor v. Van Deusen,

. 280, 290

Strickland v. Aldridge,

. 1012

Talbot V. Ball,

. 201

Strike v. Litthpage,

. 1236

V. Ford,

. 1038

Striplin v. Ware, 1488

1512, 1517, 1521

V. Pierce, .

. 403

Strohecker v. HoflFner,

. 1641

Taliaferro v. Bank,

. 1384

Strong V. Foster, .

1917, 1918, 1919

V. Miner,

. 575

V. Smith,

. 206

Talcott V. Marston,

. 2055

V. Stewart, .

- 965, 1986

Tallman v. Franklin,

. 1028

V. Strong, .

. 1669

Tally V. Smith,

. 1238

V. Williams,

. 820, 822, 825

Talmage v. Burlingame,

287, 1901,

Strother v. Hill, .

. 577

1907, 1915

Strond v. Lockhart,

. 214

Tappan v. Blaisdale,

. 393, 394

Stroup V. Sullivan,

. 1373

Tarble's Case,

. 1402

Struthers v. Kendall,

. 86

Tarkington v. State,

1507, 1528

Stryker v. Vanderbilt,

. 961

Tate T. Austin,

. 1940

Stuart V. Carson, .

. 331

V. Conner,

. 1116

V. Freeman,

. 82

V. Shalfross, .

. 207

Stiibbs V. Leavitt, .

. 1370

v. Wymond, .

1914, 1917

Sturtevant v. Jaques,

. 1118

Tatlow V. Tatlow, .

. 1281

Stuyvesaut v. Hall, 192, 198, 207,

Tavaux v. Ball, .

. 584

208, 299, 300

Tawney v. Long, . ]

273, 1278, 1279

V. Hone,

198, 207, 310, 311

Taylor v. Baldwin,

. 1990

Suffem V. Butler, .

. 946

V. Bates,

. 56, 1672

Sullings v. Sullings,

. 1143

v. Benham,

. 1791

Sullivan v. Bates, .

. 103, 105

V. Cornelius,

. 2008

V. Blackwell,

. 1212

V. Davis, .

. 1906

V. Morrow,

. 312, 313

V. Doe,

. 224, 225

Summers v. Insurance Co., . . 2005

V. Eckford,

. 99

Sumner v. Ferryman,

. 1249

Estate of, .

. 341

V. Rhodes,

. 206

V. Fields, .

. 398, 408

V. Waugh,

. 46, 47, 67, 70

V. Fleet,

. 987

Sun M. Ins. Co. v. Independent M.

V. Oilman, .

968, 971, 975

Ins. Co.,

. 289, 291

V. Gitt,

43, 53, 55, 1673

Susquehanna Canal Co

V. Bonham, 1412

V. Hibbert, .

.188

Insurance Co. v. Per-

V. Jeter,

. 1521

rine.

. 956, 993

V. Kilgore, .

. 588

Sutherland v. Brush,

. 1792

V. King, .

. 961

V. Pratt,

. 1708

V. Lanier, .

. 819

Sutphen v. Cushman,

1987, 1989, 1997

T. Luther, .

965, 1012, 1987

V. Fowler,

1823, 1824, 1830

V. Lynch, 1628,

1629, 1647, 1649

Sutter V. Ling,

. 1108

V. M' Donald,

. 408

Suydam v. Beals, .

. 1375

V. Manley, .

. 1376

V. Vance, .

1909, 1910

V. Maris, . 2

)7, 293, 307, 310

Swain v. Sproill, .

. 705

V. Mason, .

. 505

Swan V. Ligan,

. 75

V. Nussbaum,

. 1728

v. Swan,

. 916

V. Patrick, 1703,

1711, 1733, 1735

V. Wheeler, .

. 569

V. Peter, .

. 1901

Swarthout v. Curtis,

. 154

V. Porter, .

. 1117

Swartswalter's Accounts, . 550, 551

V. Roberts, .

. 1792

Swayne v. Lyon, .

. 1118

V. Sandford, 20

44, 2063,

V. Tryon, .

. 1371

2067, 2068

Sweet V. Mitchell, .

. 1988

V. Sutton, .

. 1384

V. Parker,

965, 1983, 1988

T. Taylor, .

. 1196

V. Sweet,

. 57, 1805

V. Weed,

. 1987

Sweetzer's Appeal,

1983, 1987, 1996

V. Williams,

1028, 1280

Sweitzer's Appeal, .

. 965

Teaffv. Ross, .

. 308, 313

Swett V. Jacocks, .

. 1012

Teague v. Dendy, .

. 581,1501

Swift V. Edson,

. 348

Teasdale v. Sanderson,

. 918

V. Fitzhugh, .

. 954, 958, 961

Tee V. Ferris, .

. 978

Swigert v. Bank of Kentucky, ' 216, 226

Telegraph Co. v. Barnes

. 1902

Swire v M'Whorter,

. 1409

Telfair V. Telfair, .

. 1100

Swoope's Appeal, .

. 351, 798

Ten Eyck v. Simpson,

. 214

Swoyer's Appeal, .

. 1801

Tenant v. Stoney, .

. 381

Sydney v. Roberts,

. 43

' V. Strong, .

. 390

TABLE OP AMERICAN CASE!

cvu

PAQG

Terry v. Wheeler, . . . .947

V. Wooding, . . . 1345

V. Young, .... 1383

Tesson v. Atlantic Ins. Co., . 980, 981

Thacker v. Henderson, . . . 1487

Thalheimer v. Briukerhoff, 1633, 1636

Thatcher v. Candle, . . . 1795

Thayer v. Kelly, .... 1628

V. Smith, .... 1355

Thelluson v. Woodford, . . .794

Third Avenue E. R. Co. v. Mayor, 1337

Thomas v. County School, . . 573

V. Kennedy, . . . 204

V. M'Cormick, 963, 965,

978, 1014, 1017, 1990, 1991
V. Phillips, . . . 1358
V. Sheppard, . . . 1038
V. Thomas, 323, 324, 325,

329, 340

V. Watts 1362

Thompson v. Berry, 1362, 1373, 1374

V. Blanchard,
V. Brown,
V. Bruen,
V. Carpenter,
V. Cartwright,
V. Dorsey,
V. Drake,
T. Dulles,
V. Edelin,
V. Emery,
V. Engle,

85,

. 1803
. 1125
. 1119
. 177
. 1491
. 961
. 1135
90 92
1641, 1671, 1674
. 1350
V. Frist, 393, 403, 404,

408, 410, 421

T. Hardman,
V. Hill,
V. Hudson,
V. Kyner,
V. Lee, .
V. Lewis,
V. M'Clelland,
V. M'Donald,
V. M'Kisick,
V. Marshall, .
T. Meek,
V. Mills,

V. Murray, 262, 271, 293, 314

V. Palmer, . - . . 583

V. Patton, . . 965, 1990

V. Kyner, . . . 1279

V. Thompson, . 344, 346

V. Todd, . , 979, 1018

V. Tolmie, . . .915

V. Warren, . 1639, 1640

T. Watson, . . .1905

V. White, . 967, 972

Thomhurgh v. Madren, . . 1905

Thorndike v. Norris, . . . 1667

Thornhill v. Gilmer, . . . 2008

V. Hall, . . .1653

Thornton v. Wynn, . . . 1916

Thoroughgood's Case, 951, 953, 954,

955, 956
Thoroughgood v. Walker, 2054, 2055

915

1350

2050

1273

42

410

1345

578, 579

1859, 1860

. 1633

. 1373

. 1415

PAGE

Thorp v. Pettit, . 698, 702, 1136, 1143

V. Eoss 945

Thruston v. Minke, 915, 916, 918, 919

Thurman v. Bart, .

V. Wells,
Thurmond v. Durham,
Thursby v. Wills, .
Thurston v. Minke,

V. Percival,
Thynn v. Thynn, .
Tibbs V. Morris, .
Tibean v. Tibean,

Tice V. Annen,

Tiernan v. Harriman,

V. Jackson, 1642,
v.Eoland, 1116, 1117

284, 285, 318, 1337

Tift V. Munson,

V. Porter,
Tillinghast v. Champlin, l05.

Tillman v. Searcy,
Tillson V. Moulton,
Tilly V. Thomas, .
Tilmes v. Marsh, .
Tilton V. Hunter, .
V. Tilton, .
Timberlake v. Parrish,
Tiner v. Christian,
Tingley v. Cutter, .
Tinney v. State Bank,
Tinsly v. Oliver,
Titlow V. Titlow,
Toby V. Bristol,
Tod V. Benedict,
V. Campbell,

149, 392, 393, 395, 403, 404

1633
1983
1105, 1107
861, 862
. 208
1009, 1011, 1018
784, 812
593, 594
2052, 2058
. 1154
. 255
. 1285
. 999
. 204
1989, 1997, 1999
V. Grofe, 1193, 1194, 1195,
1213, 1222, 1226, 1227,

1228, 1234, 1240, 1243

1245, 1247
. 1670
. 1382
. 1395
. 906
. 1638
. 1012
. 1996

1988, 1989

. 2050
1651, 1671
1118,

1119, 1136

. 1610

647, 652, 656, 660

-"- 148,

V. Lorah,
Toker v. Toker,
Tolland v. Standbridge,
Toller V. Carteret, .
Tolson V. Tolson, .
Tombs V. Eoch,
Tomlinson v. Mason,
Tompkins v. Anthon,
V. Powell,

415

. 1257

. 146, 148

. 1828

1023, 1859

. 327, 328

. 963

65, 101, 106

32, 34

V. Tompkins, 1366, 1369,

1372, 1491, 1500

Tone V. Brace 1346

Tongue v. Morton, . . . 194

Toole V. Swasey, . . 340, 648, 652
Toombs V. Hill, . . . .421
Toomer v. Dickerson, . 1904, 1908

Topp v. Williams 861

Torr's Estate, 255, 256, 257, 288,

330, 383, 384
Torrington v. Norwich, . . . 1509
Torry v. Buck, . 991, 999, 1238, 1242
Tourville v. Nash, .... 48
Tousey v. Bishop, .... 1911
Tovey v. Young, .... 1378
Tower's Appropriation, . . . 349

CVlll

TABLE OF AMEEICAN CASES.

Towle V. Mack,
Town of Glastonbury v.
Towne V. Ammidown,
Towner v. Lucas, . 963

V. Tooly, .
Townley v. Bid well,

V. Sherborne,
Townsend v. Burnham,

V. Hubbard,

V. Lewis,

V. Elddle,

V. Weld,
Traoey v. Sackett, .
Tracy v. Tracy,
Train v. Gold,
Trammel v. Philleo,
Trapnall v. Brown,
Treadwell v. Brown,
Treat v. Smith,
Trefts V. King, . . 145
Trettman v. Schramm,
Trevanian v. Morse,
Trevor v. Perkins, .

V. Wood,
Trigg V. Bead, 1715, 1717

PAGE

. 564

M'Donald, 1354

. 1800

964, 999, 1014

. 352

. 1112

702, 1798, 1799

. 1492

1899,
1242.'

1102

1117

1906

944

1244

. 349

. 1079

. 593

. 1012

. 409

. 1910

148, 149

. 1796

. 63

. 344

. 1102

1734,

1735, 1737
Trimble v. Boothby, . . 198, 199
Trimmer v. Bayne, 260, 788, 790,

794 809
Trinity Church v. Watson, . 383!
Triplett V. Jameson,
Tripp V. Bishop

V. Brownell, 1628,
V. Cook,
Trippe V. Lowe,
Trist V. Child,
Troost V. Davis,
Trott V. Vernon, .
Trotter v. Crockett,
V. Smith, .
V. Strong, .
V. Trotter, .
Troulp V. Hurlburt,
Troutman v. Going,
Trowbridge v. Cusliman
Troy V. Norment, .
Trucks V. Lindsey, .
Truett V. Wainwright,
Trull V. Bigelow, .
V. Eastman, .
V. Skinner, .
Trulove v. Cole,
Truluck V. Peeples,
Truly v. Wanzer, .
Truman v. Dwiggins,

V. Love, .
Trumbull v. Gibbons,
Trumper's Appeal,
Trustees v. Cole,

V. Mckson,
V. Kellogg,
V. Nicols, .
Tryon v. Whitmarsh,
Tucker v. Hassenclever,

1093,
1649,

33,

, 384

575

1098

1659

. 1985

. 1373

. 1645

. 2011

. 350

. 313

. 1216

. 1915

. 1804

. 221

. 1149

395, 411

1412, 1414

1996

1368

40, 41, 213

1727

1986

1222, 1236

40

1330, 1335
. 1244
. 1265
. 1272
. 551

707, 709
. 2007

708, 709
. 1337
. 1017
. 349

PAGE

Tucker v. Keeler, .

. 2007

V. Oxley, .

. 427, 428

Tudor V. Goodloe, .

1899, 1913

Turnage v. Green, .

. 578

Turner v. Cheeseman,

. 1273

V. Crebill, .

. 201

In re, .

. 1495

V. Kerr,

1997, 1999

V. Morgan,

. 907

V. Turner, 577, 1503,

1708,

1717, 1804

Turnipseed v. Cunningham,

1995,

1997, 1998

Turpin v. Sansom, .

. 1804

Turrill v. Boynton,

. 1913

Tuseumbia R. E. Co. v. Ehoads, . 1672

Tustin V. Cameron,

1341, 1347

Tuttle V. Jackson, 38, 157

182,

213, 214

v. Eobinson,

. 563

V. Turner, .

. 195

V. Tuttle, .

. 1728

Tuxworth V. Moore,

. 1663

Twaddell's Appeal,

. 559

Tweedle v. Tweedle,

. 343

Twelves v. Williams,

72, 87

Twitchell v. M'Murtrie,

1674, 2009

Tyler V. Gardiner, 1192, 1193, 1195,

1276, 1284

1285, 1286

V. Gould,

. 1653

V. Pomeroy, .

. 1403

Tyson v. Passmore, 971, 975

985,

988, 1009, 1011

1017, 1657

V. Tyson, . 1265,

1273, 1278

V. Watts, . 1077,

1078, 1103

Uhler V. Applegate,

1911, 1913

V. Hutchinson,

. 95, 96, 98

V. Sanderson,

. . 93

Uhlfelder v. Levy,

1389, 1392

Uhlrick V. Muhlke,

. 1227

Underbill v. Dennis,

1495, 1496

V. Harwood,

1237, 1246

Underwood v. Brockman,

1723,

1731

1733, 1736

V. Lord Courtown, . 202

V. West, .

. 1017

Union Bank v. Geary, 1704

1707, 1710

V. Kerr,

. 1334

of Tennessee, v. Govan, 1900

Union Canal Co. v. Young, 37, 45,

73,

75, 77, 106

United States v. ChDds,

. 1733

V. Carwine,

. 1908

v. Duncan,

. 317

V. Green, 1516

1525, 1527

V. Gurney,

. 2056

V. Hack, .

. 393

V. Plickabee,

1248,

1249, 1250

V. Hodge,

. 1916

V. Howell,

1914, 1921

V. Hunt, .

. 1899

V. Keokuk

J

. 1402

TABLE OF AMERICAN OASES,

CIX

TT • , ^ PAGE

United States v. Kirkpatrick, . 1899
V. Mertz, . . . 1491
V. Monroe, . . 989
V. Nichol, . . 1899

V. Simpson, 306, 1899,

1900, 1903
Y. Vaughn, 1657,1661, 1666
V. Wyngate, . . 1403
United States Bank v. Beverly, . 331
V. Bromly, . 324
V. Covert, . 2009
United States General Ins. Co. v.
United States Ins.
Co., . . .171
Ins. Co. V. Shriver,

68, 204, 218, 222, 262
University v. Joslyn, . . . 1631
Updegraffv. Insurance Co., . . 1110
Upton V. Wallace, .... 1670
Urkett V. Coryell, . . . .190
Urmston v. Newcomer, . . . 1491

. 1670

. 1908

1396, 1397

. 92, 93, 94

543, 546, 547

. 288

. 1114

. 1266

1859, 1861

46

Vadakin v. Soper, .

Vail V. Foster,
V. Krupp,

Valentine v. Havener,
V. Valentine,

Vallee v. Wheeler,

Valsey v. Grant, .

Van Alst V. Hunter,

Van Amee v. Jackson,

Van Amrage v. Miller,

Van Artsdalen v. Van Artsdalen, . 1510

Van Buren v. Olmstead, 965, 1986, 2007

Van Campen v. Knight, . . 1112

Van Deusen v. Rowley, . . . 1192

Van Doren v. Mayor of New York, 1355
V. Bobinson, 1031, 1140

Van Dusen v. Worrell, . . . 1983

Van Duyne v. Van Duyne, 1859, 1861
V. Vreeland,

Van Epps v. Van Deusen,

Van Heusen v. Eadcliff,

Van Horn, In re, .

Van Home v. Keenan, .

Van Houten, In re, 1488,

Van Meter v. M'Faddin,

Van Ness v. Hyatt,

Van Orden v. Johnson, .

Van Ostrand v. Reed, .

Van Pelt v. Van Pelt, .

Van Rennselaer v. Stafford,

V. Clark, 38, 40,
41, 204, 212, 213, 214

Van Riper v. Van Riper, 820, 822, 826

Van Valen v. Russel, . . .400

Van Winkle v. Van Houton, 350, 351

Van Zandt v. New York, . . 1136

Vance v. Campbell, . . 506, 509
V. Gary, .... 583
V. Nogle, . . 1099,1101

Vandegrift v. Herbert, . . . 1991

Vanderhaise v. Hugues, 1983, 1984, 2011

Vanderheyden v. Vanderheyden, 543, 547

146, 148
. 1487
86, 87
. 1212
. 1353
1490, 1499
. 213
. 2008
. 310
. 944
1276
1672

56,

Vanderkarr v. Thompson,
Vanderkemp v. Shelton,
Vandever's Appeal,
Vandyke's Appeal,
Vanmeter v. Ely, .
V. Jones,
Vanness v. Jacobus,
Varet v. New York Ins,
Varick v. Briggs, .

V. Edwards,
Vartie v. Underwood,
Vasser v. Vasser, .
Vathier v. Zane,
Vattier v. Hinde,
Vaughn V. Barclay,

V. Johnson, 1333,

V. Tracy, .

Vaux V. Shelby,

Veazie v. Parker, .

Vendell v. Harvey,

Vennum v. Davis, .

Ventress v. Smith, .

Verdier v. Verdier,

Vernon v. Farley, .
V. Stephens,

Vervain v. Older, .

Very v. Levy,

Vestry v. Barksdale,

Viele V. Hoag, 1336, 1359, 1910, 1921
y. Osgood, . ■ . . . 1102
V. Troy & Boston R. E., 1031,

1032, 1112, 1129

Vilas V. Jones, 1333, 1358

PAGE

945, 946

283

179-5, 1798

. 411, 412

. 321

. 1366

. 570

Co., 1358, 1704

32, 33, 34, 40

1606, 1607

. 318

. 1988

1381, 1415

33, 49, 66, 67, 72

. 1825

13R9,

1373, 1382

222, 223

. 1379

188, 209

. 1393

. 1330

. 61

. 387

. 1912

1111, 1133

. 1412

. 1100

. 585

Vil'a V. Rodriguez,
Villard v. Robert, .
Villars v. Palmer, 1898,
Villers v. Beaumont,
Villines v. Northfleet,
Vincent v. Ashley,
Voiles V. Green,
Voorhees v. De Meyer,
Vorhees v. Stoothorf,
Vose V. Florida E. R. Co,
Vreeland v. Blauvelt,
Vroom V. Shepherd,
Vrooman v. Phelps,

Wabron, In re,
Waddy v. Hawkins,
Wade V. Paget,

V. Simeon, .

V. Stanton, .

V. Withington,
Wadsworth v. James,
V. Paige,
V. Tillotson,
Wagstaffe v. Lowerre,
Wailes V. Cooper, .
Wainwright v. Bendlowes,
Wakefield Bank v. Truesdale,
Wakeman v. Grover,
V. Hunt,

1373,

1899, 1913

. 1984

205, 582

1904, 1906

. 1258

. 1263

. 1640

1910

1018, 1147

. 569

1898, 1902

. 1610

1631

961

1508

575

43

1724, 1732
. 1916
. 46
. 1631
. 153
. 265
. 541
. 189
. 332
. 1912
104, 420
. 393

ex

TABLE OF AMBEICAN CASES.

PAQE

PAGE

Waldo V. Cummings,

. 697, 707

Ward V. Vass,
Warden v. Wadsworth,

. 1902

V. Russell, .

... 94

. 204

Waldron, Ex parte,

1516, 1525, 1529

Ware v. Cowles, .

. 963

V. Letson,

. . . 980

V. Egmont, .

. 167

Walker v. Bodington,

. 36

Waring v. Ayres, .

. 1028

V. Butz,

. 195

V. Darnell,

. 573

V. Coover, .

. 321, 1099

V. Smith, .

. 46, 2008

V. Crowder,

. 1500

V. Ward, .

. 344

Estate of, 257

333, 557,

Warley V. Warley, 325, 330, 333, 336, 337

562, 654

Warner v. Baynes, .

. 909

V. Eyth, .

. 426

V. Bates, .

. 1864

V. Gilbert, 99, 203, 221, 226, 1370

V. Bennett,

1609, 2048

V. Hill, .

. 975

V. Caulk,

. 1344

V. Mauro, .

1642, 1646

V. Conant, .

1335, 1373

T. Page, .

. 1804

V. Miltenberg, .

. 674

V. Phygick,

. 344

V. Warner,

. 832, 849

V. Bobbins,

. . 1330, 1371

T. Wellington, .

. 1094

V. Eostron,

. 1645

Warnock v. Wightman,

. 213

V. Tipton, .

. 1704

Warren v. Baynes,

. 914

V. Vaughn,

. 1619

V. Copeland,

. 1666

T. Walker,

. 565, 976, 977

v. Lovis, .

. 1993

V. Whaley,

. 1022

V. Richmond, .

. 39

V. Wheeler,

. 2045

V. Scott, .

. 153, 214

Wallace's Appeal, .

. 288

V. Shimer,

. 1729

Wallace v. Brown, .

. 1028

V. Swett, .

. 214

V. Chair Co.,

1629, 1642, 1643

V. Warren,

. 262

V. Conrad,

. . . 322

Warren Railroad Co. v. Clarion

V. Craps, .

. 222

Land Co., .

1412, 1414

Estate of.

. 280, 285, 287

Washburn v. Bank of Bellows Falls,

V. Gridley,

. . .180

384, 392, 393

,395,

V. M'Connell,

. 1405

403, 404, 410

V. M'Laughlin

1119, 1135

V. Merrills, .

. 992

V. Moody,

. . . 207

Washington v. Emery, .

. 579

v. Wallace,' 335. 349, 648, 655

V. Trousdale,

96, 97

Waller v. Ray,

. 589

Washington Bank v. Lewis,

. 168

Walling y. Aiken,

1039, 1984, 2044

Waterman v. Hunt,

. 397

Wallis V. Carpenter,

2053, 2067

V. Whitney, .

1265, 1283

V. Littell, .

. 948, 949

Waters v. Simpson,

. 1921

V. Rhea,

. 98

V. Taylor, .

. 410

Walls V. Stuart, .

. 655

V. Tazewell,

. 502, 507

Wain V. Wilcox, .

. 216

V. Travis, . 1116,

1142, 1148

Walstoneeraft, In re,

. 1527

Watkins v. Baird,

. 1248

Walter v. Chamberlain,

. 1672

V. Edwards,

. 220

V. Locke, .

. 977

V. Gregory,

1993, 2002

V. Ross,

. 1657

V.Hill, .

. 670

Walton V. Avery, .

. 578, 579.

V. Holman,

. 1823

V. Bonham,

. 1343

V, Logan,

. 1408

v. Cronly, .

1986, 2095, 2006

V. Stockett, 103, 965

983, 1990

V. Hamilton,

. 1373

V. Waasell,

. 90

V. Nash,

. 190

Watriss v. Pierce,

. 1907

V. Walton, 649, 664^ 669, 671

Watson V. Bagaley,

. 1658

V. Wilson, .

. 1112

v. Bain,

. 317

Walwyn v. Lee,

. 32, 63, 77, 101

V. Delaplaine, .

. 1134

Wampler v. Wampler,

1266, 1267

V. Duke of Wellingtor

,1648,1650

Warbass v. Armstrong,

569, 570, 571

V. Le Roy,

. 31

Warburton v. Lauman,

. .214

V. Lord Lincoln,

. 793

Ward v. Arredondo,

1824, 1825, 1829

V. M'Laren,

. 1673

V. Coffield, .

. 820

V. Mercer,

. 206

v. Johnson, .

. 1917

V. Palmer,

. 1381

V. Ijewis,

. 950

V. Stone, .

. 1804

V. Lont, , .

. 793

V. Sutherland, .

. 1408

T. Morrison,

. 1665

V.Wells, .

. 169

V. Pelouaon,

. 1857

V. Wilson,

199, 202

V. "Van Bokkelen

. 1415

Watt V. Downs, .

. 593

TABLE OF AMERICAN CASES,

CXI

,„ PAGE

Watts V. Coffins 1344

T. Gayle, .... 1381
V. Kinney, . . 1100, 1149
V. Sheppard, 2053, 2060, 2063, 2067

V. Steele,

V. Waddle, .
Way V. Arnold,

V. Lamb,
Waymau v. Jones,
Wayne v. Kirby, .
Weakly v. Bell, .
Weall V. Bice,
Weaver v. Lynch, .

V. M'Conkle, .
V. Wood, .
Webb V. Jones,

V. Eice, . 1990,

V. Steele,

V. Walker, .

V. Webb, .

T. Wilcher, .
Webber v. Taylor, .
Weber v. Lee County, .

V. Simpson,
Webster v. Harris,

V. Hodgkins,
V. Maddox,
V. Skipwith,
V. Von Steinbergh,
T. Wise, .
Wedenstaudt, Succession of.
Weed V. Jewett,

V. Pierce,

V. Terry,
Weeks t. Haas,

V. Marow, .

V. Weeks, ,
Weems v. Brewer, .
Weetjen v. Vibbard,
Weigand's Appeal,
Weilder v. Farmers' Bank,
Weiler t Hoch,
Weir V. Weir,

Weisser v. Dennison, . 170, 175, 178
Welby V. Duke of Eutland,
Welch's Appeal, .
Welch V. Manderille, .
Weld Y. Madden, .
Welles V. Middleton,
Wellington v. Joyce,
Wells V. Archer, .

V. Mann,

V. Morrow, .

V. Pierce,

V. Eobinson,

V. Smith, 1119, 1121, 1125,

1133, 1134

V.Yates 982

Welsh V. Bayand, . . 1030, 1040

V. Beers, . 293, 297, 303, 308

V. Bekey, 1660, 1661, 1672, 1673

V. Freeman, . . . 915

In re, . . . 1274, 1285

V. Moffit 1106

1500
1117, 1832
212
• 1369
1793
1911, 1921
. 1916
810
1674
1671
1079
332
1991, 2006
1669
1654
595
209
180
. 1402
1990, 2005
993
946
182, 185, 221
1366, 2044
40, 1631
. 1672
. 593
. 1654
. 202
. 1707
1938, 1940
. 1492
. 710
. 1145
1792, 1793
. 1797
. 145
. 1905

1352
. 655
. 1668
. 180
. 1220
. 1040
53,54
. 1906
33, 73, 1989

1362
598

Wemple v. Stuart, .
Wendell v. French,
Wendevart v. Allen,
Wesco's Appeal,
Weskett v. Eaby, .
Wesley v. Thomas,
Wesley Church v. Moore,
West V. Bank of Eutland,

V. Blakway, ,

V. Mayor of New York,

V. Peanes,

V. Kaymond,

V. Smith,
Westbrook v. Harbeson,
Westcott V. Cady, .
V. Potter,
Westerfield v. Westerfield,
Westerman v. Means,

PAGE

. 987

563, 564

. 1330

. 820

. 831

965, 993

. 1358

259, 322

. 1914

1337, 1350

. 1362

1631, 1638

572

.' 963, 996

697, 704, 706

. 1638

. 547

1130, 1143, 2059

Western E. E. Corporation v. Bab-
cock, 999, 1032

Westervelt v. Hass, . 149, 168, 259
V. Matheson, . . 1032

Westfell V. Jones, .... 56
Westley v. Clarke, . _. . 1795

Westmoreland Bank v. Klingen-

smith, 1913

Westoby y. Day, . 1624, 1661, 1668

Weston V. Johnson, . . . 797

Wetherbee v. Dunn, . . . 861

Wetherford v. James, . . . 1147

Wetmore v. Parker, . . 548, 549

V. San Francisco, 1630, 1643

Whaldron, In re, . . . . 1526

Whaley v. Dawson, . , . 919

Whalley V. WhaUey, ... 57

Wham V. Love, .... 582

Wharff V. Howell, . . 1987, 1991

Wharton's Estate, .... 555

Wharton v. Woodbury, . . . 1897

Wheatley v. Slade, . . . 1148

Wheaton v. Dyer, . . 40, 74, 217

V. Washington, . . 1363

V. Wheaton, . 953, 983, 987

Wheeler v. Bingham, . . . 508

V. Hughes, ... 56

V. Kirtland, . . 86, 92

V. Price 1732

V. Eaymond, . . . 1669
V. Smith, . 1234, 1244,

1245, 1723, 1731, 1732

V. Washbnrn, . . . 1911

V. Wheeler, 1643, 1645, 1669

Wheelton v. Hardisty, . 970, 973, 980

Whelan's Appeal, .... 1256

Whelau V. Whelan, 953, 1035,

1206, 1235, 1261
Whelen's Estate, .
Whettington v. Wright,
Whipple V. Adams,
Whitaker v. Bond,

V. Cone, .
Whitchnrch v. Bevis,
White V. Beatty, .
v. Bullock, .

.

557

^ ,

208

.

1859

1035,

1039

.

1631

. 976

, 977

. 337, 353

, 675

. . 54«,

1792

exil TABLE

OF AMERICAN

OASES.

PAGE

PASB

White V. Butcher, .

. 1124

Wilby V.

Phinney, .

. 424

V. Carpenter,

. 90, 192

Wilcox V

.Hill, .

. 148

V. Cashel, .

. 1333

\

^ Morris, .

. 1984

V. Coatsworth,

. 1399

V. Wain, ' .

. 216

V. Cox,

. 1244

■V

'. Wilcox,

. 257, 337

V. Crew,

1328, 1336

WUde V.

Gibson, .

. 156

V. Delaplaine,

. 1116

Wilder v

. Brooks, .

. 203, 204

V. Denman, 89, 93, 206, 215, 216

V

. Keeller, 257,

381, 384,

V. Dingley,

2052, 2069

388,392,416,418,419,

V, Dobson, .

1131, 1145

420, 421, 427

V. Dougherty,

. 423

Wildes V

. Chapman,
. M'Connell,

. . 399

V. Foster, .

37, 39, 149

Wildey v

. 1381

V. Garden, .

. . 43

Wildgoose v. Wayland,

. 152

V. Graves, ,

1216, 1265

Wiley V.

Knight, .

. 176

V. Green,

. 337, 675

Wilhite V. Roberts,

1639, 1640

V. Heylman,

1245, 1248

Wilkes V

. Harper,

90, 283, 287

V. Hormann,

. 1030

V

. Rogers, .

. 1500

V. Patten, .

. 211, 1610

V

. Smith, .

. 1106

V. Pomeroy,

. 1494

Wilkins

V. French,

. 2007

V. Sheppard,

. 1729

V. Hogue,

1343, 1347

V. Skinner, .

1637, 2047

V. Wilkins,

899, 900, 901

V. Thompson,

. 1034

Wilkinson v. Porkingtoi

1, . . 1154

V. Thornburgh, .

. 418

Will's Appeal,

. 702, 1212

V. Union Ins. Co.,

. 393

Willan V

. Willan, . 979

, 980, 986, 1032

V. Washington, 1329,

1362, 1365

Willard

V. Bassett,

. . 597

V. Whaley, .

. 1216

V. Chovin,

. 1504

V. White, .

1823, 1830

V. Taylor,

1090, 1141

V. Whitney,

. 2007

Willcox

V. Smith, .

. 548

V. Wilson, . . 98?

!, 989, 1002

Willes V.

Jernegan,

. 955

V. Winchester, 647,

649

V.

Smith, .

. 2047

659, 663, 668

William v. Hickman,

. 1631

V. Woodward,

. 410

V. Mosher,

. 572, 574

Whitehead v. Brown, .

. 989

Williams

' Appeal, .

. 782

V. Chadwell,

. 417, 423

V. Alexander,

. 1707

Whitehorn v. Hines,

. 1230

V. Baker,

1216, 1265

Whitesides v. Greenlee,

. 1037

V. Bank,

. 204

WhiteweU v. Willard, .

. 1411

V. Beard,

. 41

Whitfield V. Fausset, .

. 58

V. Brown,

. 180

V. Levy, 2054,

2055,

V. Campbell,

. 1804

2063,

2067, 2068

Case,

. 1501

Whithead v. Boulnois, .

. 38, 218

V. Champion,

. 1147

Whithorn v. Harris,

. 1233

V. Council,

. 1631

Whiting V. Beebe, .

. 195

V. Crary,

791, 825, 826

V. Springfield Bank

. 87

V. Davis,

. 1339

V. Whiting,

. 1860

V. De Haven,

. 1798

Whitlock V. Duffield, .

. 1031

V. Downing,

. 1661

V. Vaun,

. 663

Ex parte, 396

, 397, 400,

Whitney v. Peddicord, .

. 1805

402, 1527

V. Union Eailway Co., . 2049

Executors,

, . . 1271

Whitted V. Webb,

. 578, 579

V. FuUerton,

. 1671

Whittemore v. Gibbs, .

. 1667

V. Green, 20

52, 2057,

Whittle V. Skinner,

. 1911

2058, 20

60, 2061,

Whittleser v. Heberer, .

. 1906

c

!067, 2068, 2069

Whittrick v. Kaine,

. 32

V. Harden,

. 1338

Wickersham's Appeal, .

. 563

V. Hatch, '

. 989

Wickham v. Hawker, .

. 1630

V. Henderson,

. 417

V. Martin,

. 89

V. HoUingswo

rth, . 90, 94

Wicklifie V. Bell, .

. 195

V. Holmes,

. . 1672

Wickley V. Hall, .

. 1638

V. James,

. 287

Wickliffv. Preston,

. 668

V. Jersey,

. 1348

Wierich v. De Zoya,

. 1368

V. Jones,

1358, 1373

Wiggins V. M'Donald, .

. 1642

V. Lambe,

. . 64

Wigglesworth v. Steer, .

. 1244

V, Lee, . ]

L378, 1380, 1387

Wightman v. Reside, .

. 1116

V, Maitland,

. 1792

TABLE OE AMERICAN CASE!

CXlll

PAGE

PAGE

WilliamB v. Price, 312,

313, 1336,

Wilson V, Mason, .

. 1415

1902, 1903

V. Nance, .

. 1632

V. Eussell,

. 43

V. Patrick, . 1983,

1989, 1999

V. Shelby,

. 82

V. Eobertson,

394, 402

V. Sneed,

. 1725

V. Sherburne, .

. 973

V. Sprigg,

180, 181, 186

V. Shoenberger, . 225,

1987, 2003

V. Staake,

. 1137

V. Soper, 393, 396, 397, 403,

V. Tatnall,

. 175, 176

404, 405, 415

V. Townsend,

. 1985

V. Tappan, .

. 1117

V. Washingtoi

1, . 262, 280

V. Troup, ,

. 2008

T. Webb,

. 1646

V. WattB, 972, 975,

1014,

V. Wiegand,

. 904

1015,

1236, 1237

V. Williams,

. 596

V. Wilson, 549, 572,

1007, 2047

Williamson v. Berry,

. 915, 1504

V. Wright, .

. 287

V. Brown, 3

i, 145, 154,

Wilt V. FrankUn, .

. 1059

156, 158

161, 183,

AVilton V. Warwood,

. 1014

186, 187 218, 220, 221

Wiltshire v. Babbits, .

. 166

V. Gordon,

. 36

Wilty V. Hightower,

182

V. Johnson,

1377, 1386

Wimple V. Knoopf,

. 94S

V. Mason,

. 588

VVinborn v. Garrell,

36, 201

V. Wilkins,

. 586

Winch's Appeal, .

1408, 1409

V. Williams

. 579

Winch V. Winchester, .

998, 1026

V. Williams

on, 702, 713, 716

Winchester v. Paine,

. 200

Williard v. WilUard,

. 1725

V. Railroad Co., 170, 171, 175

WiUick V. Haine, .

. 974

Windewart v. Allen,

. 1371

Willing V. Brown, .

. 904

Winfield v. Baron,

. 1363

Willingtou V. Gale,

. 2007

Wing V. Cooper, .

. 1992

Willis V. De Castro,

. 1910

Wingate v. Hamilton, .

. 1149

V. Fernald, .

. 946

V. Heywood, .

1366, 1388

V. Forney, .

1028, 1119

Winged v. Lofebury,

. 1084

T. Henderson,

. . 87

Winkley v. Foye, .

. 1657

V. Twambly,

. 1672

Winn V. Albert, .

. 1350

V. Valette, .

. 170

V. Chamberlain, .

946

WUliston V. Williston,
Willoughby vf Willough

. 1138

V. Wier,

. 819

by, 31, 32,

Winne v. Eaymond,

. 1117

34,36,

37, 47, 53, 70, 72

Winnipisogee Co. v. Perley,

. 988

Willis V. Lonbat, .

. 1638

Winslow V. Merchants' Ins

Co.,

V. Smith,

1123

1622, 2007

Wilmot V. Pike, .

166

Winston v. Westfeldt, .

196, 197

V. Woodhouse,

829

Winter v. Drury, .

. 1653

Wilmshurst v. Bowker,

1107

Wintermute v. Snyder, .

. 1734

Wilsey v. Maynard,

1332

Winthrop v. Gould,

. 340

Wilson's Appeal, .

552

T. Lane,

. 1385

Wilson V. Bowden,

1667

Wise V. Harris,

. 271

V. Brown, .

. 289, 290

V. Shepherd, . 270, 273, 275, 2S0

T. Carson, .

1642, 1643

Wiseman v. Westland, .

. 202

V. Clark, . ^

1091, 1098, 1099

Wisham v. Lippincott, 417

421, 1415

V. Conway Fire

Ins. Co., . 178

Wisley v. Finley, .

. 906

V. Coupland,

. 1670

Wist V. Raymond, .

. 1223

V. Drumrite,

1984, 1988

Wistar's Appeal, . 551,

1217, 172S

V. Duncan, 8

94, 895, 915, 916

Wistar v. M'Manes, 1362, 1364, 1366, 1371

V. Edwards,

. 1908

Wiswall V. Hall, 982, 988,

1002,

Estate of, .

. 1606

1008, 1009,

1010, 1017

V. Fisher, .

. 1796

V. M'Gowan, 1135,

1136,

V. Foot,

. 1918

1147,

1152, 1154

V. Glover, .

. 1905

Witbeek v. Waine,

. 947

v. Green, .

1913, 1917

Wither's Appeal, .

. 552

V. Hill,

. 57, 1671

Withers v. Carter,

270, 285

V. Jarvis, .

. 1391

V. Hickman, .

1501, 1503

V. Leigh, .

. 1335

V. Yeadon,

. 18C8

V. M'Clure,

. 1079

Witherspoon, Ex parte.

581, 583

V. M'ConneU,

. 427

Witman's Appeal, .

551, 552

V. M'Cullough,

50, 147, 166

Witman v. Norton,

. 349

V. :M'Kenzie,

. 1403

Witten V. Witten, .

. 395, S94

VOL. II. — H

C'XIV

TABLE OF AMERICAN CASES,

PAGE

Wiitman v. Goodhand, . . . 1273
Witter V. Richards, . . 392, 410
Wodehouse v. Farebroth, 1336, 1341
Wolbert v. Lucas, .... 303
Wolcott V. Jones, .... 1363
V. Robbins, . . . 861
Wolf V. Bates, .... 1339
Wolf's Creek Co. v. Schultz, . . 2053
Wolford V. Herrington, . . . 976
WoUastonv. Tribe, 1251,1252, 1254,1256

Wollesblaren v. Sheales,
Wolstonecraft, In re,
Womack v. Austin,
Wood V. Brown,

V. Bryant, .

V. Chapin, .

V. Cooper, .

V. Dodgson,

V. Downes,

V. Dwarris, .

V. Farmere,

V. Garnett, .
V. Goff,
V. Griffith, .
V. Gurist,
V. Huntingford,
V. Lee,
V. Little,
V. Mann
V. Marvin, .
V. Partridge,
V. Patterson,
V. Perry,
V. Price,
V. Trask,
V. Warner, .
V. Wood,
Woodbridge v. Perkins.

1905

. 1521

1801, 1803

. 1793

. 828

94, 107, 108

. 163

. 281

1220, 1224

973

146, 148J 18o!

183, 184, 186

. 577

. 595

1148, 1637

. 1379

. 343

. 595, 999

906, 907, 915

34, 36, 75

. 43

. 1666

. 987

. 1672

. 982

. 2009

. ]823

1507, 1521, 1803

1666

Woodbury Savings Bank v. Insu-
rance Co., 981

Woodcock V. Bennett, 1018, 1152,

1153, 1154
Wooden v. Haviland,
Woodford v. Dow, .
Woodman v. Saltonstall,
Woodrop v. Brice, .
Woodruff V. Fisher,
Woods V. Jfonroe,
V. Sullivan,
V. Wallace,
Woodward's Appeal,
Woodward v. Aspinwall,
Estate of,
V. Harris,
V. Pritchett,
V. Van Buskirk,

980, 993

, 1911

. 1355

. 426

. 1337

. 1337

710, 711

. 1984

. 344

1094, 1097

333, 661

1154

. 2007

1369,

1373, 1382

324, 327, 835

. 214

. 38

Woodworth's Estate,
Woodworth v. Guzman,

V. Paige,

V. Van Buskirk, 1369,

1373, 1382
Woolcocks V. Hart, 259, 262, 318

PAGK

Woolfolk V. Woolfolk, 897, 1707, 1726
Woolford V. Herrington, . . 972
Woolston V. White, . . .674
Woolstonecraft, In re, . 1511, 1512
Wooten V. Burch, 698, 700, 701, 706, 707

V. Copeland, . . .918
Worcester v. Merchant, . . 1489

Work's Appeal, . . . 1668

Work V. Harper, .... 206
Workman v. Guthrie, 999, 1000,

1010, 1021, 1023, 1024
Worley v. Tuggle, 985, 993, 994,

995, 1002, 1006, 1009

V. Worley, . . .327

Wormley v. Lowry,

V. Wormley,
Worral v. Dunn, .
Worrall's Account,
Worrall v. Jacob, .
Worrell's Appeal, .
Worth V. Case,

V. M'Aden,
Wray v. Furniss, .

V. Wray,
Wrenshall v. Cook,
Wright V. Atkinson,

V. Austin, .

V. Bates,

V. Grist,
V. Holbrook,
V. Hood, .
Y. Howard,
V. King,
V. M'Cormick,
T. Marsh, .
V. Nutt,
V. Parker, .
V. Proud, .

. 36
. 1102

1704, 1725
. 1258

1801, 1803
. 1031

1792, 1794
. 1343
. 1211
. 1342

. 293, 318

. 318, 1337
184, 185, 965,

1984, 1988

1412
. 346
. 101
. 1124
. 1092
. 1009
. 894
319, 320, 321
2009
1220

V. Simpson, 314, 318, 320,

322, 1898
V. Smythe, . . . 1344

V. Stockton, . . 1905

V. Slorrs 1910

V. Thompson, . . . 1108
V. Tustin, . . . .314
V. Wilkinson, . . 589

v. Wood, . . .180, 188
V. Wright, 584, 586, 1489,

1606, 1729

V. Yell, . . . .1900

Wurtz V. Hart, . . 258, 314, 323

Wurzburger v. Meric, . . . 979

W^yatt v.Barwell, 195, 207, 217, 218, 219

V. Elam, . . . .221

V. Harrison, . . . 264

v. Stewart, .... 98

Wyche v. Greene, .... 979

\. Macklin, . . .961

Wykofl' V. Davis, . 293, 295

Wylie V. Coxe, . . . 1640

Wyllie V. Pollen, . . . 155, 178

Wyman v. Babcock, . . . 1986

Wyncoop v. Cowing, . . . 1986

TABLE OF AMERICAN CASES.

CXV

PAGE

PAGE

Wyse V. Smith,

323

Young V. Paul, 1040, 1094, 1100,

Wj-vell V. Bishop of Exeter,

1142

1149, 1150

V. Eathbone, . . . 1124

Yarborough v. Newell,

965,

1988,

1991

V. Reynolds, . . . 1328

V. Thompson,

1334

V. White 2059

Yates V. Donaldson, 1910,

1914,

V. Wilson, . . . .205

1917,

1918

Youngblood v. Vastrue, . . 40

V. Monroe, .

1415

Youngs V. Lee, .... 86

Yeate> v. Groves, .

1643J

1647

Youst V. Martin, . 74, 75, 76, 78, 79

Yenner v. Hammond,

2068

Yundt's Appeal, . . . 816, 818

Yersley v. Gregsby,

1102

Yoder's Appeal, .

552

Zabriskie V. Smith, 1624, 1625, 1626

York V. Landis,

280

V. Vreeland, . . , 1416

York Bank's Appeal,

32C

, 399

Zane v. Zane, . . . 1703, 1707

Youle y. Richards,

1984

Zeiter v. Zeiter, . . . 676, 814

Young y. Chaney, .

592

Zerbe V. Miller, , . . .108

y. Coleman,

988

989",

1002

Ziegler v. Eckert, . 676, 809, 812, 831

y. Daniels, .

1113,

1124

V. Hughes, . . . 1224

Ex parte, .

573

V. Long, . . 259, 271, 285

V. Frost,

1237

Zimmerman v. Zimmerman, 1271, 1281

V. Littlejohn,

1910

Zollman v. Moore, 32, 34, 47, 70, 71

y. Miller, .

985

A SELECTIO]^

LEADING CASES IN EQUITY,

BY

F. T. WHITE AND 0. D. TUDOR,

OV THE MIDDLB TEMPLE, ES^a,, BABBISTEBS-AT'LAW.

Wt^ Annotations,

CONTAmmG EEFEEENCES TO AMERICAN" CASES,

BY

J. I. CLARK HARE AND H. B. WALLACE.

Jourtl) ;2lm£rt£an, from t\)c ibttrtl) Contron (Htition.

WITH

ADDITIONAL NOTES AND EEFERENCES TO AMERICAN DECISIONS,

BY

J. I. CLARK HARE.
IN TWO VOLUMES.

VOL. II.
Part First.

PHILADELPHIA:

T. & J. W. JOHNSON & CO.,
LAW BOOKSELLEKS AND PUBLISHEES,

No. 535 CHESTNUT STBBET.
1877.

LIST OF CASES REPORTED

YOLUME II, PART I.

PAGE

Agae V. Fairfax (Partition) .... . . 865

Aldrich v. Cooper (Marshalling) 228

AsHBrE>'ER V. Macgtjire (Specific Legacy — Ademption) . . 600
Basset v. NoswOETBrr (Purchase for valuable consideration without

notice) 1

Blandy v. Widmore (Performance of covenant to leave money by

partial intestacy) . . 834

Chancey's Case (Satisfaction of a debt by a legacy) . . . 752

HooLEY V. Hatton (Cumulative legacies — Repetition of legacies) 721
Howe v. Dartmouth (Earl of) (Conversion of residue bequeathed

to persons in succession) ....... 676

Le Neve v. Le Neve (Notice) 109

Pye, Ex Parte (Satisfaction of a legacy by a portion — Ademp-
tion) 741

Robinson v. Pett (No allowance to an executor or trustee for his

care or trouble) 512

Scott v. Tyler (Conditions in restraint of marriage — Public

policy) 429

Silk v. Prime (Equitable assets) 353

Talbot (Sir John) v. Shrewsbury (Duke of) (Debt satisfied by

a legacy) 751

Wake v. Conyers (Confusion of boundaries) .... 850

WiLCOCKS r. WiLCOCKS (Performance of covenant to purchase and

settle an estate) ......... 833

WoOLAM V. Hearn (Distinction between seeking and resisting spe-
cific performance as to the admission of evidence) . . 920

LEADING CASES IN EQUITY.

BASSET V. NOSWORTHT.

TERM HIL. 25 CAR. 2, ANNO 1673.

EEPOKTEB REP. TEMP. FINCH, 102.

Purchase for valuable Coksideration without Xotice. — A bill
loas filed by an heir-at-law against a person claiming as purchaser
from the devisee binder the will of his ancestor to discover a revoca-
tion of the will. The defendant pleaded, that he was a purchaser
for valuable consideration, bond fide, icithout notice of any revocation,
and the plea was allowed, and, upon p>roof of it, the bill was dis-
missed.

Though lands by the falling in of several lives prove to be of much
greater value than they ivere at the time of the purchase^ if the con-
sideration be such as will make the defendant a purchaser within
the Stat. 27 Eliz., he irill be considered as a purchaser for valuable
consideration ; for the question is, not whether the consideration be
adequate, but whether it be valuable.

The plaintiff, Sir "William Basset, entitled himself, as son and
heir of Elizabeth Seymour, who was the only daughter and heir
of Sir Joseph Killegrew, who was brother and heir of Sir Henry
Killegrew, whose estate the lands in the bill mentioned formerly
were ; the defendant's title being under (as the plaintiff alleged)
a pretended purchase of these lands at Drury House, and under
the will of Sir Henry Killegrew, the purchase being from Jane
Davis (afterwards the wife of Mr. Berkley) and from *Henry p^„.
Hill, the pretended natural son of the said Sir Henry Kille- L -■
grew, of which will the plaintiff alleged there was a revocation
by some subsequent deed or will ; and for a discovery thereof,
and what ^Ir. Nosworth}' really paid for the purchase, and what
deeds and writings he had, and to set aside the incumbrances
which he had bought to protect his purchase, and that Mrs. Sey-
mour might try her title at law, upon the supposed revocation
against the title of the defendant, as a purchaser under the said
Avill, the now plaintiffs exhibited this bill.'

^ A bill of revivor.
VOL. II 1

BONA FIDE PTTROHASBRS.

To which t?ie defendant pleaded a dismission of a bill in the
Court of Exchequer,^ signed and enrolled, which bill was there
brought for the same matter as in this bill, and fully examined
and dismissed upon a full hearing, but without prejudice, and
the dismission duly signed and enrolled.

The defendant further pleaded, that he loas a purchaser for a
valuable consideration, bond fide paid, without notice of any revocation.

This cause being heard by the Lord Keeper Bridgman, he
ordered precedents to be searched, where a plaiutitt, after a dis-
mission of his bill on a judicial and formal hearing, and a full
examination of witnesses in one Court of equity, and that with-
out prejudice, had ever been admitted in another Court of equity,
to examine new witnesses to the same matter formerly in issue
and examined.^

Afterwards there being several orders made in this cause, and
one by which the plea was overruled,' the cause now came on to
be heard.

Lord Keeper Finch,'' having read the articles for the defend-
ant's purchase, and the conveyances, leases, fine, and recovery,
which appeared to be made before any purchase, at Drury House,
and having considered the whole matter, was of opinion that the
Court had gone much out of the way, and that the cause had
been perplexed with several extraordinary orders and not accord-
r*q-, ing to the usual course of proceedings ; and therefore it *was
L -I to be brought back to that state where it first went wrong.

Whereupon he discharged all former orders for examining wit-
nesses at large, and confined^ all examinations to the matter of
the defendant's plea, which, by the justice of a Court of equity,
ought to conclude the plaintiff, unless he could disprove it. And
a bill of the same nature having been brought in the Court of
Exchequer, and there, after full examination, dismissed, it seemed
very hard that the dismission was without prejudice, because no
cross bill can or ought to be received after publication, to examine
the same witnesses again ; for that might be a means to introduce
subornation and perjury, even by the order of this Court, and no
precedents can be faund to warrant such practice.

Therefore the defendant having pleaded this dismission in bar
of any further examination, and that he is a purchaser bond fide,
without notice of any revocation, and afterwards for the Court to

1 See Seymour v. Nosworthy, Hard. 374, upon an issue directed by the Court
of Exchequer, whether the will of Sir Heury Killegrew was revoked or not;
Midi. 16 (Jar. 2.

2 Seymour v. Nosworthy, before Lord Keeper Bridgman and Justice Moreton,
1 Ch. Ca. 155, where, however, the name of the case is omitted, and the cause
is said to have been on demurrer; whereas it appears from other parts of the
report to have been on a plea.

3 Seymour v. Nosworthy, Mich. Hil. 1669 ; 3 Ch. Rep. 40 ; Nels. 135 ; Freem.
Ch. Eep. 128 ; 2 Eq. Ca. Ab. 69.

■■ Afterwards Lord Chancellor and Earl of Nottingham.
' "Confirmed," evidenily by mistake in the report.

BASSET V. NOSWOKTHY. 3

save the benefit of this plea, by way of answer, and yet to allow
an examination to the whole n)atter which had been pleaded in
bar to snuh examination (all which had formerly been done in
this cause), was in efi'ect to surprise the defendant, and, unawares,
to draw him oft" from that which was his most material defence.

The cause being then ^t right before the Court upon the true
merits thereof, there were only two points which were considera-
ble:

1st, What the law of this Court is concerning purchasers ;

2nd, Whether the defendant was a purchaser within that law.

As to the first point, a purchaser bona fide, without notice of
any defect in his title at the time of the purchase made, may law-
fully buy in a statute or mortgage, or any other incumbrance ;
and if he can defend himself at law by any such incumbrances
bought in, his adversary shall never be aided in a Court of equity
by setting aside such incumbrances; for equity will not disarm a
purchaser, *but assist him. And precedents of this nature r^ -■,
are very ancient and numerous, viz., where the Court hath ■- -'
refused to give any assistance against a purchaser, either to an
heir, or to a widow, or to the fatherless, or to creditors, or even
to one purchaser against another.

And this rule, in a Court of equity, is agreeable to the wisdom
of the common law, where the maxims which refer to descents,
discontinuances, nonclaims, and to collateral warranties, are only
the wise arts and intentions of the law to protect the possession,
and to strengthen the rights of purchasers.

As to the second point, the Court declared, that the defendant
had sufiiciently proved his plea, and himself to be a purchaser
within the protection of this Court, because no fraud or circum-
vention appeared ; and it was evident that the defendant had paid
several great sums to discharge statutes which incumbered those
lands, over and above what was paid to Mrs. Jane Berkley for
her estate for life and to lienry Hill for his reversion ; and though
the lands were proved to be of much greater value at this time,
by the falling in of several lives, than what they were at the time
of the purchase, yet that will not alter the case in equity ; because
in purchases the question is not, vjhether the consideration be adequate,
but whether it be valuable :'■ for if it be such a consideration as will
make the defendant a purchaser within the statute 27th Eliz.,^ and
bring him within the 'protection of that law, he ought not to be impeached
in equity.

And since Henry Hill had nothing to subsist on during his
minority but this reversion, and being a bastard, could have no
kindred by the law, and probably but few friends, there was some
hazard of the money which was advanced during his minority, if
he died betore the fine and recovery suifered.

Therefore, the Court allowed the plea and dismissed the bill,

1 See Oopis v. Middleton, 2 Madd. 410, 433.
* In the report by mistake cited as 31 i-liz.

BONA FIDE PURCHASERS.

and suppressed all the depositions taken in this cause before April
last, and all since, but only such which relate to this plea of this
defendant.*

r-^c-n *In the principal case, Lord Nottingham acted upon the well-
known rule, that equity will give no assistance against a bona fide
purchaser without notice of an adverse title, and his statement of the
law of the Court upon the subject is both succinct and accurate. Lord
Rossljm, C, thus comments on and adopts it : " In Basset v. Nos-
worthy (Ca. t. Finch, 102), which produced many points, the plaintiff
took up the cause as heir of Lady Seymour, claiming under a legal
title ; the defendants set up a purchase for valuable consideration with-
out notice ; Lord Bridgman had overruled the plea, in consequence of
which a great variety of proceedings took place in this Court. It came
before Lord Nottingham. He reversed Lord Bridgman's order, and
suppressed all the proceedings that took place in consequence of the
production and discovery. The book does not state it amiss. ' A pur-
chaser bona fide, without notice of any defect in his title at the time
he made the purchase, may buy in a statute, or mortgage, or anj^ other
incumbrance : aud if he can defend himself at law by any such incum-
brance bought in, his adversary shall never be aided in a Court of
equity for setting aside such incumbrance, for equity will not dfisarm a
purchaser, hut assist him ; and i^recedents of this nature are very an-
cient and numerous ; viz., where the Court hath refused to give any
assistance against a purchaser, either to an lieir or to a widow, or to the
fatherless, or to creditors, or even to one purchaser against another,' "
2 Ves. jun. 45'! ; and see the important judgment of Lord Chancellor
Westbury in Phillips v. Phillips, 8 Jur. (N. S.) 145; 31 L. J. N. S.
(Ch.) 321 ; 4 De 8. F. & J. 208; Glemow v. Geach, 6 L. R. Ch. App.
147.

Nothing can be clearer than that a purchaser for valuable considera-
tion, without notice of a prior equitable right, obtaining the legal estate
at the time of his purchase is entitled to priority in equity, as well as
at law, according to the well-known maxim, where equities are equal,
the law shall pre aail. Pitcher v. Rawlins, t L. R. Ch. App. 259.

Nor will a Court of equity prevent a bona fide purchaser without
notice from protecting himself, against a person claiming under a prior
equitable title, by getting in the outstanding legal estate, because, as
the equities of both parties are equal, there is no reason why the pur-

' Proceedings were afterwards taken at law in this long contested case. See
Hitchins v. Basset, 3 Mod. 203 ; 4 Jac. 2; B, R. 1688 ; Salli. 592 ; Trin, 5 ; W. &
M. B. R. 1 Sliow. 537. And ultimately, upon a special verdict, the Court was
of opinion tliat there was no revocation ; and upon a writ of error, the judgment
in B. R. was affirmed by the House of Lords. See Sir Edward Hungerford v.
Nosworthy, Show. P. C. 146 ; and see 1 Vern. 351.

BASSET V. NOSWORTHT.

chaser should be deprived of the advantage he may obtain at law by his
superior activity or diligence. See Golehorn v. Alcock, 2 Sim. 552 ;
Marsh v. Lee, ante, vol. L, p. 611, and note.

And it is clear that a purchaser who pays, and procures the legal es-
tate from an unsatisfied mortgagee, may hold it as against all mesne
incumbrances of which he had no notice, before he completed *his r-^,-,
purchase, even if that were done pendente lite, provided it was
done before a decree to settle priorities : Bates v. Johnson, Johns. 304 ;
Prosser v. Eite, 27 Beav. 68 ; Young v. Young, 3 L. R. Eq. 801 ; Fease v.
Jackson, 3 L. R. Ch. App. 516 ; Marsh v. Lee, ante, vol. i., p. 6 11, and note.

To so great an extent has equitj' favoured purchasers bona fide with-
out notice, that it appears by Culpepper's case, cited by Lords Commis-
sioners Trevor and Rawlinson, in Sanders v. Deligne, Freem. Ch. Rep.
123, that where a man had bought gavelkind land of the eldest son,
and paid his purchase-money without Ijnowledge that it was gavelkind,
and afterwards for a song bought in the titles of the younger brothers,
who were ignorant of tlieir titles, it was yet held, that they could not
be relieved afterwards in equity ; for it was said that the purchaser,
having honestly paid his money without notice, might use what means
he could to fortify his title. In Sir John Fagg's case, cited 1 Yern.
52, "a purchaser came into a man's study, and there laid hands on a
statute that would have fallen on his estate, and put it in his pocket ;
and in that case, he having thereby obtained an advantage in law, though
so unfairly and by so ill a practice, the Court would not take that ad-
vantage from him ;" S. C, nom. Sherly v. Fagg, 1 Ch. Ca. 68 ; and in
Harcourt v. Knowel, cited 2 Yern. 159, a purchaser was allowed to take
advantage of a release obtained from the grantee of a rent-charge with-
out consideration, and bj' fraud. And see Siddon v. Charnells, Bunb.
298. These, however, are extreme eases, showing, indeed, how partial
equity is to purchasers, but extending the doctrine of protection to
them farther than it would be carried at the present day : see Carter v.
Carter, 3 K. & J. 617, 636, 637.

Where the equitable title of the purchaser, who had got in the legal
estate, depended upon a forged will, he was held entitled to the protec-
tion of the Court. See Jones v. Powles, 3 My. & K. 581 : in that case
a person advanced money upon the mortgage of an estate, claimed by
the mortgagor under a will, which ultimately turned out to be forged,
and got a conveyance of the legal estate, then outstanding, in a mor1>
gagee whose debt had been satisfied. Upon a bill being filed by the
heiress-at-law, it was held, by Sir John Leach, M. R., that the mort-
gagee, being a purchaser without notice of the plaintiff's title, could
protect herself by the legal estate. " My impression," said his Honor,
" at the opening of this case was. that the protection of the legal es-
tate extended only to cases where the title of the purchaser for valua-
ble consideration without notice was impeached by reason of some secret

6 BONA TIDE PURCHASERS.

|-^h-| act or matter done by the vendor *or those under whom he claimed :
but upon full consideration of all the authorities which have been
referred to, and the dicta of judges and text writers, and the principles
upon which the rule is grounded, I am of opinion that the protection
of the legal estate is to be extended, not merely to cases in which the
title of the purchaser for valuable consideration without notice is im-
peachable by reason of a secret act done, but also to cases in which it
is impeached by reason of the falsehood of a fact of title asserted bji-
the vendor, or those under whom he claims, where such asserted title
is clothed with possession, and the falsehood of the fact' asserted could
not have been detected by reasonable diligence." See 1 J. & L. 264.

So in the recent case of Young v. Young, 3 L. R. Eq. 801, a testator,
in 1832, devised his estate (which was then subject to a mortgage to one
Talford), to his wife for life, and then to his children. The will was
never proved, and no notice of it was entered on the Court rolls. The
widow emigrated in 1845, leaving her eldest son in possession of the
estate as her agent. In 1851, the son falsely representing himself to be
in possession of the estate as heir of his father, procured a further ad-
vance upon mortgage of the estate, from W. Longrigg, who paid off the
first mortgage to Talford, in whom the legal estate was vested by cus-
tomary grant and admittance, and having taken a grant of the estate
from Talford and the son, was, thereupon, admitted tenant of the prop-
erty. Longrigg, when he advanced the money was in perfect ignorance
of the existence of the will, and believed that the son was the owner of
the estate as heir of his father. The widow having died, it was held by
Sir R. Malins, Y. C, that Longrigg having legal estate, without notice
of any adverse title, was entitled to be protected against the rights of
the children, and to tack his further advance. " Here," said his Honor,
" the heir-at-law was in possession, and seems to have represented that
he was in possession as heir, which is equivalent to a representation
that there was no will, and, being in such possession, he applies for a
further advance. The will was not proved, and there was no entry of it
on the Court rolls ; consequently, there can be no negligence attributa-
ble to Mr. Longrigg, and 1 must consider that he has all the rights that
a purchaser for valuable consideration would have. The case of Jones
V. Powles (3 My. & K. 581), is a very strong one. ... It was ap-
proved of by Sir W. Page Wood, in the case of Garter v. Garter (3 K.
& J. 61*7, 688). Those cases go beyOnd what is here wanted."

The principle upon which these cases proceed, seems to have been
|-^g-| ^departed from in the case of Garter v. Carter, 3 K. & J. 61Y.
There the testator died in 184^, leaving a will dated January,
1846, by which he gave a beneficial share in an eighth of real estates to
John Carter. Thereupon, John Carter, believing himself to be the
beneficial owner, conveyed his share to the defendant as mortgagee.
Afterwards, a later will of the testator, dated in April, 1846, was dis-

BASSET V, NOS WORTHY.

covered, by which the estates were devised to John Carter and two
otiiers upon certain trnsts. The two other trustees disclaimed, and
John Carter, thereupon, became the sole trustee, and the legal estate was
vested in him, which he had already conveyed to his mortgagee. It
was held by Sir W. Page Wood, Y. C, that although the defendant had
acquired the legal estate in one-eighth of the estate for valuable consid-
eration, as it were by accident and without notice that the former will
had been revoked, so that his conscience wasnot affected by any of the
trusts to which, by the subsequent will the estate was subjected, he
must hold subject to those trusts, since the will by which they were
created was the very instrument upon which his title to the legal estate
depended. " The only legal estate," said his Honor, " he (the defend-
ant) can avail himself of, is a legal estate under a conveyance, which on
the very face of it, betrays the trust ; and the question is, whether you-
are obliged to say, ' I have no other convej-ance thaQ this : this is m3^
legal title,' such a legal title can be held a protection from the claims
of thecestuis que trustent. In other word?, on a bill filed by the cestuis
que trustent for the execution of the trusts of the will, can any pur-
chaser plead a purchase of the trustees' legal estates without notice of
trusts ; because the trustee affected to convey a different estate from
that which he in fact convej^ed. Now, no case has ever been brought
up to tliat ; and looking to the distinction drawn between the case of a
trust expressed on the face of the instrument, and cases where there is
merely the general direction to hold in trust for the persons ultimately
to be entitled — two cases of an extremeljr different character — it does
not appear to me, that if 3-ou are desirous to rely for your title on that
which on the very face of it, when produced, discloses the equitable in-
terests, you can be heard to say, ' I claim the estate under this instru-
ment, and I disclaim every charge that appears upon the face of it ; or
aver ignorance of the deed which constitutes your title.' "

In a recent case, however, it has been held, that a bona fide pur-
chaser for value, having the legal estate, will not be held to have notice
of the contents of a deed, concealed from him at *the time of his pg-,
purchase, on the ground that he would be compelled to rely upon
,it in support of his legal title in an action of ejectment: Pilcher v.
Rawlins, 7 L. R. Ch. App. 259, where the Lord Chancellor and Lords
Justices reversed the decision of Sir John Romilly, M. R. (reported 1 1
L. R. Eq. 53), who followed the decision of Sir W. Page Wood, Y. C,
in Carter v. Garter, 3 K. & J. 617. And Lord Justice James in his
judgment thus comments upon Carter v. Garter. " In the case of Car-
ter V. Garter," says his Lordship, " which was decided by the present
Lord Chancellor, and which was followed by the Master of the Rolls ia
this case, and with which 1 am bound to say I am unable to agree, an
exception from the rule was under the circumstances supposed to exist.
It is very clearly expressed in a few lines of the judgment in that case ;

BONA FIDE PURCHASERS.

'But here the purchaser taking the conveyance under one will, sup-
posed by all parties to be really the last will of the testator, finds him-
self driven to rely upon another, and a second will containing on the
face of it all the trusts which the testator has created ; ' and that circum-
stance is supposed to create the exception. To my mind, there are to
that supposition two short and conclusive answers — the one, a matter
of principle, and the other, a matter of fact. My view of the principle
is, that when once you haA-e arrived at the conclusion that thepurcliaser
is a purchaser for valuable consideration without notice, the Court has
no right to ask him, and has no right to put him to contest the ques-
tion, how he is going to defend himself, or what he is going to rely on.
He may say, honestly and justly, " I am not going to tell you. I have
got the deeds ; I defend them, and you will never be able to produce
secondary evidence of them. I am not obliged to produce them at all ;
probably, before you get half way through j'our action of ejectment,
you will find a jus terdi which you will not dispose of; the estate is in
the hands of a legal tenant to whom I have letdt, and no one can deter-
mine that tenancy without notice, and no one can give that notice but
m3"self ; I will not give that notice, and no Court has an}" power to com-
pel me to give it. I have a right to rely, as every person defending his
position has, on the weakness of the title of the person who is seeking
to displace me.' That seems to be exactly the position of such a pur-
chaser as this."

" The purchaser in Qarler v. Garter, did not rely on the will which
created the trust ; he relied on another title ; for the will formed the
title of the adverse party, and the answer to that adverse party is, by
the good luck which sometimes attends honest men, ' though you pro-
duce an instrument which *points out your title, and gives the
L J property to some one else, yet I am prepared with a legal de-
fence in a conveyance which was executed before.' It appears to me,
that there is no right in this Court to prevent the purchaser from
setting up that defence to the claim so made against him. If there
ever was a case in which, according to my judgment, any Court
ought to be in favour of a purchaser and against such a title, it is a
case in which a testator has through the grossest negligence, allowed,
two wills to exist after his death, so that some members of his
family produce one will, apparently making out a perfectly good title
to a mortgagee or purchaser, and then, when a mortgagee or purcha-
ser has been induced, unwittingly, to pay or advance his monej',
some other members of the family produce the other will, which has
been suppressed or concealed during the whole of that time, and thus
seek to take the estate away from the mortp;agee or purchaser. It seems
to me to be a very ingenious device by which a testator would be able
to give his property twice over to his family ; but in my opinion, it is
a device which ought not to be encouraged in any way in equity. I

BASSET V. NOSWOKTHY. '9

am, therefore, of opinion, that whatever may be the accident by which
a purchaser has obtained a good legal title, and in respect of which he
has paid his money and is in possession of the property, he is entitled
to the benefit of that accident ; j list as a purchaser would be entitled to
avail himself of the possession so acquired, without any reference to the
rights of the persons who may be otherwise interested : " Monckton v.
Braddell, 6 I. R. Eq. 352.

It seems, however, that a person cannot plead that he is a purchaser
for valuable consideration without notice, where he purchases and pays
the purchase-money to a pretended agent of an apparent owner, with-
out his authority, the apparent owner being merely a grantee under a
fraudulent deed, who had never been in possession : Ogilvie v. Jeaffre-
son, 2 Gifi'. 353, 380.

And not only where the purchaser has actually obtained, but where
he has the best right to call for the legal estate, will he be entitled to
the protection of equity ; Willoughby v. Willoughby, 1 T. R. 163 ;
Blake v. Sir Edward Hungerford, Prec. Ch. 158 ; Charlton v. Low, 3
P. Wms. 328 ; Ex parte Knott, 11 Ves. 609 ; Shine v. Gough, 1 Ball. &
B. 436 ; Boioen v. Evans, 1 J. & L. 264 ; Tildesley v. Lodge, 3 Sm. &
G. 543. And see ante, vol. i., p. 624.

And the rule in favour of purchasers applies to personal as well as to
real estate : Dawson v. Prince, 2 De G. & Jo. 41.

Where a trustee has made good a breach of trust with regard to one
trust fund, by the application for that purpose of funds belonging
*to another trust, the cestuis que trustent of the first fund will

r*iii

be considered as purchasers for value without notice, and the ces- '- -^
tuis que trustent of the second fund will not be able to reclaim any part
of it so applied in making good the breach of trust. Thus, in Thorn-
dike V. Hunt, 3 De G. & Jo. 563, a trustee of two different settlements
having applied to his own use funds subject to one of the settlements,
replaced it by funds which, under a ^ower of attorney from his co-
trustee under the other, he transferred into the names of himself and
his co-trustee in the former. In a suit in respect of breaches of trnst of
the former settlement, tlie trustees of it transferred the fund thus re-
placed into Court on a motion. It was held by the Lords Justices, re-
versing the decision of Sir John Ropaillj^, M. R., that the transfer was
equivalent to an alienation for value without notice, and that the cestuis
que trustent under the other settlement could not follow the trust fund.
See also Case v. James, 29 Beav. 512, 3 De G. F. & J. 256.

But though a purchaser bona fide without notice may, after notice,
obtain the legal estate, buy in an incumbrance, or lay hold on any
planli to protect himself, " yet he shall not protect himself by taking a
conveyance from a trustee after he had notice of the trust ; for by tak-
ing a conveyance, with notice of the trust, he himself becomes the trus-
tee, and must not, to get a plank to save himself, be guilty of a breach

10 BONA FIDE PURCHASBUS.

of trust." See Saunders v. Dehew, 2 Vern. 211 ; 5. C, notn. Sanders
V. Deligne & Barnes, Freem. C. C. 123 ; Allen v. Knight, 5 Hare, 2T2 ;
afl9rmed by Lord Cotteiiham on appeal, 11 Jur. 521 ; Baillie v. M'Kewan,
35 Beav. Ill ; and a trustee for successive encumbrancers cannot by
conveying the legal estates to one of them give him priority over
the other : Sharpies v. Adams, 32 Beav. 213 ; Collyer v. Finch, 19
Beav. 500 ; 5 Ho. Lo. Ca. 905.

But as the first mortgagee is not a trustee for the second, although
he have notice of his mortgage, a third mortgagee advancing his money
without notice of the second may gain priority over it bj' taking a con-
veyance of the first : Peacock v. Burt, 4 L. J. N. S. Ch. 33 (Coote,
Mortg. Append.).

There does not, however, appear to be any case in which a purchaser
obtaining a conveyance of a mere dry trust estate from a trustee of a
satisfied term, or from a mortgagee whose mortgage has been satisfied,
such trustee or mortgagee having at the time when he made the con-
veyance, notice of an intei-vening charge or trust, has been held entitled to
protect himself from such charge or trust, by means of the legal estate
which he has so obtained. Per Sir W. P. Wood, V. C, in Garter v.
Garter, 3 K. & J. 640 ; and see * Maundrell v. Maundrell, 10
L ^^J Ves. 246: Ex parte Knott, \\ Yes. io()<i ; Gory \. Eyre, \ De G.
Jo. & Sm. 149. See, however. Dart, V. & P. 759, 4th ed.

A purchaser, moreover, without notice cannot avail himself of the
legal estate, which, by the fraud of another, has been obtained from the
holder for the protection of the purchaser, but has not actually been
conveyed to him. See Eyre v. Burmester, 10 Ho. Lo. Ca. 90. In that
case Eyre was the holder of a mortgage on lands given to him by John
Sadleir who was largely his debtor. John Sadleir afterwards mortgaged
these lands to the directors of a banking company as security for some
fresh advances. Before these advances were actually made, the solici-
tor for the directors discovered that the lands had been previously mort-
gaged to Eyre. The directors refused to complete the transaction with
John Sadleir unless Eyre's interest in the lands was released. John
Sadleir represented to them that it would be easy to procure the re-
lease as Eyre's mortgage was only collateral security, and he applied to
Eyre, who consented to give the rejease on getting proper securities in
substitution for the mortgage. Bj^ deeds duly executed between Eyre
and John Sadleir, the latter pretended to give substituted securities,
among others, railwaj^ shares and a promissory note. The release was
executed by Eyre. '1 he substituted securities, the shares and the note,
proved to be forgeries. It was held by the House of Lords, reversing
the decree of the Lord Chancellor of Ireland, that Eyre had not, by ex-
ecuting the release, lost his right against the mortgaged lands, the re-
lease having been obtained from him by fraud, that even if John Sadleir
had conveyed the released lands to the directors they could only have

BASSET V. NOS WORTHY. 11

claimed under him against Eyre, and that the release, valid against
John Sadleir and those who claimed under him, was invalid as against
Byre, who claimed not only not under John Sadleir, but against him by
a title paramount.

An important question arises, when the person, seeking the aid of
equity against a bona fide purchaser comes himself fortified with the
legal estate ; and one might have supposed that the Court acting up to
the maxim, '■'■where equities are equal, the law shall prevail," would,
whether the bill were for discovery or relief, give aid against the pur-
chaser. The authorities, however, have determined otherwise. In the
principal case, it will be observed, the plaintiff, claiming under a legal
title as heir, sought the assistance of the Court ; but Lord N'ottingham
left him to get whatever remedy he could at law, observing, " that
equity will not disarm a purchaser, but assist him ; and that precedents

of this nature *were very numerous where the Court had refused

r*13T
to give any assistance against a purchaser, either to an heir, or ^ -i

to a widow, or to the fatherless, or to creditors, or even to one pur-
chaser against another."

In Burlace v. Cooke, Freem. Ch. Ca. 24, an heir exhibited a bill for
discovery of evidence concerning lands of his ancestor's ; the defendant
swore that he was a purchaser of the lands, and the heir demanded a
sight of his writings ; but Lord Nottingham said that he should not
see them. For although the heir prima facie had a legal title, he might
go into a Court of law if he pleased ; but this Court would not com-
pel the showing of writings to any person unless he had an equitable
title, as a mortgagee ; and that was the difference between a legal and
equitable title. In Sogers v. Seale, Freem. Ch. Ca. 84, Lord Notting-
ham, on the contrary, made this distinction, "that where the plaintiff
hath a title in law, there, though the defendant doth purchase without
notice, yet he shall discover writings ; but otlierwise, it is if the plain-
tiff hath only a title in equity ; for there, if the defendant purchased
without notice, he shall never discover, nor make good the plaintiff's
title." These two first decisions of Lord Nottingham, both of which
are badly reported, are clearly contradictory.

In Parker v. Bhjthmore, Prec. Ch. 58, the plaintiff had a legal title,
but the deed under which he claimed was lost, upon his filing a bill
setting up the deed. Sir John Trevor, M. R., was of opinion that the
plea of the defendant, that he was a purchaser for valuable considera-
tion without notice, was good ; but it was not necessary actually to
decide the question, as the plaintiff, by replying to the plea, had ad-
mitted its validity.

In Williams v. Lamhe, 3 Bro. C. C. 264, a widow filed a bill against
a purchaser from her husband, claiming her dower. The defendant
pleaded, that he was a purchaser of the estate (subject to a mortgage),
for valuable consideration, without notice of the vendor being married.

12 BONA FIDE PURCHASEKS.

Lord Thuilow, however, overruled the plea, observing, that the only
question was, whether a plea of purchase without notice would lie
against a bill to set out dower ; he thought, where a party is pursuing
a legal title, as dower is, that plea does not apply, it being only a bar
to an equitable, not to a legal claim. He therefore overruled the plea,
though he said he could not see how the plaintiff could proceed with-
out making the mortgagee a party, as, if it turned out that the mort-
gage (being in fee) was before the marriage, there would be an end to
her title.

In Jerrard v. Saunders, 2 Yes. jun. 454 (where, however, neither
Parker v. Blythmore nor Williams v. iamSe, are cited), Lord Rosslyn
*said he had looked into Sogers v. Seale, Freem. Ch. Ca. 84 ;
L -' that it was impossible it could be the determination of Lord
Nottingham, that, if the plaintiff has a legal title, the defendant could
not protect himself as a purchaser for valuable consideration, but he
might if the plaintiff had an equitable title ; that it was directly contrary
to what he laid down in Burlace v. Cooke, soon after he got the Great
Seal ; that the verjr reverse was often stated by him ; that it was laid
down by him, that, against a purchaser for valuable consideration, this
Court had no jurisdiction; that Fagg^s case (cited 1 Vern. 52) was de-
termined by him ; the defendant had picked up from the conveyancer's
table the deed that affected his title, and though he got it in that man-
ner. Lord Nottingham would not oblige him to set it forth. However,
in Strode v. Blackburne, 3 Yes. 222, Lord Rosslyn said, that the plea
of purchasefor valuable consideration without notice, was a shield to
the possession, and that he found it very difficult to imagine a case in
which it could be used for any other "purpose than to defend the actual
possession ; and accordingly in that case, where a bill being filed by
the tenant for life in possession, under a settlement for discovery or
delivery of the title-deeds, the defendant pleaded a mortgage in fee by
a former tenant for life alleging himself to be seised in fee, without
notice of the settlement ; his Lordship ordered the plea to stand for an
answer, with liberty to accept.

In the important case of Walwyn v. Lee, 9 Yes. 24, Lord Eldon consid-
ered not only that the. plea was good as against the plaintiff with a legal
title but also (clearly overruling Strode v. Blackburne), that the fact of
the plaintiff being in possession, gave him no claim to the assistance of
the Court against a bona fide purchaser without notice. In that case a
tenant in tail in possession under a marriage settlement, filed a bill for
discovery and delivery of title-deeds of an estate which had been mort-
gaged by his father, who was tenant for life under a settlement, and a
private Act of Parliament. The defendant pleaded that the plaintiff's
father, alleging himself to be seised in fee, and being in actual posses-
sion of the premises as apparent owner, and being also in actual pos-
session of the title-deeds relating thereto, as apparent owner thereof,

BASSET V. NOSWORTHT. 13

and having the disposal thereof, executed the several mortgages
(stating them) under -which the defendant claimed, and averred that
the defendant, and the other mortgagees, through whom he derived,
had no notice. It was argued for the plaintiff, that, as the defendant
neither was in possession, nor had the means of procuring it, the Court
ought not to permit him to keep the deeds for the sole puriMse of
extortion. Lord Eldon, however, *allowed the plea. " This
bill," said his Lordship, " is filed by a person having got pos- <- ->
session. If the principle is, that this Court will not stir against a pur-
chaser for valuable consideration without notice, what are the legal
rights of the son, tenant in tail, when his father's life estate deter-
mines ? His legal rights are, that he shall have possession of the
estate : I do not know that I am entitled to say, of the title-deeds, but
that he shall recover in trover the value of the deeds, or in detinue, in
which the judgment is for the deeds, or the value. But, without
attending to the imperfection of the law in such actions, which is
probably the ground of the jurisdiction here for the specific delivery
of the thing, J will suppose his right at law to be the specific delivery.
It is true, he is not seeking in equity to recover possession of the estate.
But he is seeking to recover something, which he cannot .recover at
law, the value of which non constat he can recover at law without the
discovery of the deeds. Is it of necessity, then, that this Court must
hold as against a purchaser for valuable consideration without notice,
that, if the possession of the' estate has been got from him, the posses-
sion of the deeds shall be taken out of his hands by this Court, and
thrown in to the person who has got from him the possession of the
estate ? I do not go further to consider, whether the possession can be
forever withheld from him, reserving that, and doubting whether, upon
the argument of this jDlea, the Court has any right to discuss that
question, or to take upon itself to say, as the ground upon which it is
in this state of things to proceed, that the possession may be for ever
withheld from him. Is it not worth consideration, whether the very
principle of this plea is not this : ' I have honestl}- and bona fide paid
for this, in order to make myself the owner of it, and j'ou shall have
no information from me as to the perfection or imperfection of my
title, until you deliver me from the peril in which you state I have
placed mj'self in the article of purchasing bona fide ?'

" Is it not worth consideration, whether ever}' plea of purchase for
valuable consideration without notice does not admit that the defend-
ant has no title ? If he has a good title, why not discover ? I appre-
hend there is sufficient ground for saying, a man who has honestly dealt
for valuable consideration without notice shall not be called upon, by
confessions wrung from his conscience, to say he has missed his object
in the extent in which he meant to acquire it. I doubt, therefore, the
argument calling upon the Court to presume that this man can bring

14

BONA FIDE PURCHASERS.

no ejectment ; that if he did, he could not recover ; that he has not
r*1fi1 now the legal fee ; that he *has not some term vested in him;
L J that he may not be able to procure either ; and presuming that,
at the hazard of preventing him from doing that very thing, if he is at
this moment engaged in the endeavour to do it. It is asked whether
the Court is to permit extortion, by enabling the defendant to with-
hold the deeds from the owner ? Is not the very doubt, whether this
Court will call upon the defendant to admit that the plaintiff is the
owner ? Next, the possession of the deeds at least is a thing pur-
chased with the estate ; and if it happens that the purchase misses its
object to this extent, that the purchaser has had the possession taken
from him without the assistance of this Court, is there a clear principle,
that, therefore, the possession of the deeds shall, with the assistance of
the Court, be recovered by that person who so obtained possession of
the estate ? I am not sure that follows as a principle of sound equity,
if the principle of the Court is, that, againnt a purchaser for valuable
consideration without notice this Court gives no assistance. Peeling
this case to be of great importance, with reference to the transactions
of the world, especially if I shall be compelled to infringe upon an
authority to which I look with great respect, but which at this moment
I cannot think consistent with the doctrine of this Court as to a pur-
chaser for valuable consideration without notice, I am obliged to take
some further time." The plea having stood a considerable time for
judgment, was allowed.

Notwithstanding the decision of Walwyn v. Lee, the question was
again raised in Collins v. Archer, 1 Russ. and My. 284. There, a
rector, in 1811, demised his rectorj' to A. for a term of j-ears, to secure
the due payment of an aunuitJ^ In 1814, he for valuable consideration
demised the tithes of certain lands withiu the rectory to the occupier,
B., who, at the time, had no notice of the prior charge. The annuity
fell into arrear in 1816, and in 181'? the rector took the benefit of the
Insolvent Act. B. remained in the occupation of the lands, and
retained the tithes, claiming to be entitled to them under the deed of
1814; and no step was taken to enforce payment until IBS'!, when A.
filed against him a bill for an account ; in answer to which B. insisted
that he was a purchaser for valuable consideration without notice.
But it was held by Sir John Leach, M. R., that the defendant ought to
account for the tithes for the six j'ears before the filing of the bill.
" Following," said His Honor, " the case of Williams y. Lambe, and
the general principle of a Court of equity, I am of opinion that that
defence is of no avail against the legal title." In this case Burlace v.
Cooke, Parker v. Blythmore, Jerrard v. Saunders, and Wal-
L -^ ivyn V. *Lee, were not cited, either in the argument or judgment.

The subject, however, afterwards met with full consideration by
Lord Chancellor Sugden, in the case of Joyce v. JDe Moleyns, 2 J. & L.

BASSET V. NOSWORTHT. 15

3'74, where th« doctrine laid down in Walwyn v. Lee was approved of
and acted upon. There the heir-at-law obtained possession of title-
deeds relating to impropriate tithes, of which his second brother, under
the will of their father, was tenant for life, and deposited them with
bankers by way of equitable mortgage, to secure a sum which they ad-
vanced to him. Upon a bill being filed by the administrator of a bond
creditor of the father, for the administration of his estate, and praying
that the bankers might be decreed to deliver up the deeds, the bankers
insisted that they were purchasers for valuable consideration, without
notice of the will, or of the title of any persons claiming thereunder, or
of the demands of the plaintiff; and submitted that the bill should
either be dismissed, or that the plaintiff shou,ld redeem them. And
Lord Chancellor Sugden dismissed the bill as against the bankers, with
costs. " It is clear," observed his Lordship, " that the persons entitled
to the tithes may maintain trover for tlie deeds. There is no question
as to their title to recover at law ; but I apprehend that the defence of
a 'pxircha&e for value without notice, is a shield, as well againxt a legal
as an equitable title. There has been a considerable difference of opinion
upon the subject amongst judges. I must decide the question for my-
self: and I have always considered the true rule to be that which I have
stated. Therefore, 1 think that the mere circumstance that this is a legal
right, is not a bar to the defence set up, if in other respects it is a good
defence. That it is a good defence, cannot be denied. Suppose a ten-
ant for life under a will, with remainder over ; and that the tenant for
life, being the heir-at-law of the testator, conveys the inheritance to a
purchaser witliout notice, the remainderman cannot have au}- relief in
equity against the purchaser. He must establish his title outside of
this Court, as well as he can. It is the same with respect to title deeds.
Deeds are chattels ; and, where no adverse claimant interferes, the per-
son entitled to the estate is entitled to the deeds. But the person who
has possession of the deeds may deal with them as with any other
chattels, subject to the rights of those who are interested in them.
Here a person obtains the possession of title deeds having no title to
the estate ; anotlier person advances money to him upon the security
of a deposit of the deeds. The rule, therefore, comes into operation
(for it applies equally to real estate and to chattels), that if a man ad-
vance money bona fide, and without *notice of the infirmity
the title of the seller, he will be protected in this Court, L J

and the parties having title must seek relief elsewhere

In answer to the objection made by the defendants, it is urged
that they are equitable mortgagees, and brought before the Court in
that character, and tliat the Master will, under the decree, report
on their title ; and so they maj', under the decree, have what is their
right. That, however, is merely begging the question ; for, if their
title as purchasers for value enables them to say that the bill must

16 BONA FIDE PURCHASERS.

be dismissed as against them, then the plaintiff offers «them nothing,
for he says that the person who pledged the deeds had no interest of
any kind in the estate : therefore, though the plaintiff treats them as
equitable mortgagees of the estate, yet at the hearing he denies them
that character ; and they cannot fill the character of equitable mortga-
gees of the deeds, for the person depositing them had no title. The de-
fendants, therefore, use the possession of the deeds, as they have a
right to do, as a shield to protect them against the plaintiffs. They
can make no use of the deeds themselves ; they cannot maintain pos-
session of them against the true owner : but in this Court they have a
right to say that tliey ought not to be compelled to deliver them up,
as they obtained them bona fide and without notice." On the following
day his Lordship said, that Lord Eldon had decided the very point in
Wahvyn v. Lee^ 9 Ves. 24, and added, that in Bernard v. Drought, 1
Moll. 38, Sir A. Hart extended the doctrine to the case of a solicitor's
lien, but in Smith v. Chichester, 2 D. & War. 393, he considered that
it had been carried to far.

So in Bowen v. Eoans, 1 J. & L. 264, Lord Chancellor Sugden said
that in his opinion, whether the purchaser has the legal estate, or only
an equitable interest, he may by way of defence, avaU himself of the
character of a purchaser without notice, and is entitled to have the bill
dismissed against him, though the next hour he may be turned out
of possession by the legal title. See also Payne v. Covipton, 2 Y. & C.
Exch. Ca. 451; Attorney-General v. Wilkins, 17 Beav. 285; Lane y.
Jackson, 20 Beav. 535 ; Hope v. Liddell, 21 Beav. 183 ; Penny v. Watts,
1 Mac. & G. 150: Gomm v. Parrott, 5 W. R. (C. P.) 882, 3 Jur. N. S.
1150, where this doctrine has been approved of and Ibllowed.

The principle however of the cases that decide, that the defence of
being a purchaser for valuable consideration without notice, can be
made by persons not having the legal estate, is not applicable to cases
where a legal mortgagee files a bill of foreclosure against a subsequent
mortgagee or purchaser who has advanced his money without notice of
the prior incumbrance. *See Finch v. Shaw, and Colyer v.
L -I Finch, 19 Beav. 500; there Finch, the plaintiff in the first suit'
in 1842, became first legal mortgagee of an estate of the defendant
Shaw, and Colyer, the plaintiff in the second suit, became purchaser of
the estate in 1849. It was held by Sir John Romilly, M. R., that Col-
j'er could not set up as a defence to a bill of foreclosure by the first
mortgagee, that he was a purchaser for valuable consideration without
notice of the mortgage. His Honor, after stating that he had no doubt
as to the propriety of the decisions with respect to purchasers for valu-
able consideration without notice, observed, " It would be a new and a
very dangerous doctrine, to say, that where a person has mortgaged
property to one, and given him a legal mortgage, and has afterwards
mortgaged the same proj)erty to a second, concealing the existence of

BASSET V, NOSWORTHT. 17

the first mortgage, the first mortgagee is to be deprived of his ordinary
rights in this Court, incidental to his mortgage. I have found no case
that leads to that conclusion, and on the contrary, it appears to me in-
consistent with the whole doctrine of this Court relating to tacking."

. . . And after observing that there were several cases upon the
subject, which might require some nicety of distinction to reconcile
precisely, and noticrag the cases of Williavis v. Lambe (3 Bro. C. C.
264) and Collins v. Archer (1 Russ. & My. 284), his Honor added,
" The distinction I apprehend to be this : — if the suit be for the en-
forcement of a legal claim for the establishment of a legal right, then,
although this Court may have jurisdiction in the matter, it will not in-
terfere against a purchaser for valuable consideration without notice,
but leave the parties to law ; if on the other hand, the legal title is per-
fectly clear, and attached to that legal title there is an equitable rem-
edy, or an equitable right, which can onlj' be enforced in this Court, I
have not found any case, nor am I aware of anj', where this Court will
refuse to enforce the eqiiitable remedy which is incidental to the legal
right." The case of Colyer v. Finch, was on appeal affirmed by the
House of Lords (5 H. L. Cas. 905) ; and Lord Cranworth, C, observed
that the reasons of the Master of the Rolls were no doubt perfectly sat-
isfactory, but that he should proceed on a shorter ground, " For the
purpose," said his Lordship, " of the question whether the Court would
interfere against a purchaser for valuable consideration without notice,
a foreclosure is not relief at all. The mortgagee who seeks foreclosure
stands in such a position to the mortgagor, or the purchaser from the
mortgagor for valuable consideration without notice, that that purcha-
ser can at *any time file a bill to redeem the mortgage ; and that
being so, it would be most unjust if there was not a correlative L J
right on the part of the mortgagee to say, ' You shall redeem now, or
you shall never redeem.' Therefore I think that is a ground which en-
tirely puts an end to all questions as to Mr. Finch's suit, and that he
would be entitled, unless so far as it is interfering with the other suit,
to the decree which the Master of the Rolls has given him ; namely,
the ordinary foreclosure decree." See also Burlace v. Cooke, Freem.
Ch. Ca. 24, ante, p. 13.

Nor can the defence of a person being a purchaser for valuable con-
sideration without notice, be used by a person having equal equities
against an incumbrancer not having the legal estate, who is prior to
him in point of date. See Phillips v. Phillips, 4 De F. & Jo. 208 ; 31
L. J. Ch. (N. S.) 325 ;/8 Jur. (N. S.) 145. There, A. being entitled to
the equ'ity by redemption in certain lands, by a deed of family arrange-
ment dated in February, 1820, granted to his brother B. an annuity of
20Z. chaiged on tl>ose lands, and payable on the death of his mother C.
By a settlement made on his marriage in May, 1821, A. settled the
above lands, subject to the mortgage existing thereon, and he at the
VOL. II 2

18 BONA FIDE PUECHASEES.

same time covenanted that they were not otherwise incumbered. A;
died in 1825, and C. died in 1839. The first payment of the annuity
became due in March, 1840. In 1859 B. filed a bill against those claim-
ing under the settlement for payment of the annuity. The defendants
set up orally at the bar the defence, that they were purchasers for valu-
able consideration without notice of B.'s annuity. It was held by Lord
Westbury, C, that even assuming such defence could be set up orally
at the hearing (but which he held could not), it was not available, inas-
much as the defendant was only the purchaser of an equitable interest.
" I take it," said his Lordship, " to be a clear proposition, that every
conveyance of an equitable interest is an innocent conveyance, that is
to say, the grant of a person entitled merely in equity passes only
that which he is justly entitled to, and no more. If, therefore, a per-
son seised of an equitable estate (the legal estate being outstanding),
makes an assurance by way of mortgage, or grants an annuity and
afterwards conveys the whole estate to a purchaser, he can only grant
to the purchaser that which he has, namely, the estate subject to the
annuity or mortgage, and no more. The subsequent grantee takes only
that which is left in the grantor. Hence grantees and incumbrancers
claiming in equity, take and are ranked according to the dates of their
r^ot-i securities, and the maxim ^applies qui prior est in tempore,
potior est in jure. The first grantee is potior, that is poten-
tior. He has a better and superior, because a prior, equity. The first
grantee has a right to be paid first, and it is quite immaterial whether
the subsequent incumbrancers at the tim.e they took tlieir securities
and paid their money had notice of the first incumbrance or not. These
elementary rules are recognized in the case of Brace v. The Duchess of
Marlborough (2 P. Wms. 491) ; and they are furtlier illustrated by the
familiar doctrine of this Court as to the tacking securities. It it well
known that if there are three incumbrancers, and the third incum-
brancer at the time of his incumbrance and payment of his money had
no notice of the second incumbrance, then, if the first mortgagee or
incumbrancer has the legal estate, and the third pays him off and takes
an assignment of his securities and a conveyance of the legal estate, he
is entitled to tack his third mortgage to the first mortgage he has ac-
quired, and to exclude the intermediate incumbrancer. But this doc-
trine is limited to the case where the first mortgagee has the legal title;
for if the first mortgagee has not the legal title, the tliird mortgagee,
by payment ofi" of the first, acquires no priority over the second. Now
the defence of a purchaser for valuable consideration is the creature of
the Court of equity, and it can never be used in a manner at variance

with the elementary rules which have been already stated It

was indeed said at the bar that the defendants being in possession had
a legal advantage in respect of that possession of which they ought not
to be deprived. But that is to confound the subject of adjudication

BASSET V. N OS WORTHY. 19

with the means of determining it. The possession is the thing -which
is the suhject of controversy, and it is to be awarded by the Court to
one or to the other. But tlie subject of controversy, and the means of
determining the right to that subject, are perfectly different. The argu-
ment, in fact, amounts to this : ' I ought not to be deprived of posses-
sion, because I have possession.' The purchaser will not be deprived
of anything that gives him the legal right to the possession, but the
possession itself must not be confounded with the right to it. Tlie
case, therefore, that I have to decide is tiie ordinarj"^ case of a person
claiming under an innocent equitable conveyance that interest which
existed in the grantor at the time when that conveyance was made.
But, as I have already said, that interest was diminished by the estate
that had been previously' granted to the annuitant, and as there was no
ground wliatever for pretending that the deed creating the annuity was
a voluntary deed, so there is no ground whatever for *contend- r-jjiog-i
ing that the estate of the person taking under the subsequent
marriage settlement is not to be treated by this Court, being an equit-
able estate, as subject to the antecedent annuitj', just as effectually as
if the annuity itself had been noticed and excepted out of the opera-
tion of the subsequent instrument. I have no difficulty in holding that
the plea of purchase for valuable consideration is, upon principle, not
at all applicable to the case before me, even if I could t;ike notice of it
as having been rightly and regularly raised." See, also, Vorley v.
Cooke, 1 Giff. 230 ; Parker v. Clarke, 30 Beav. 54.

In consequence of the decisions of Walwyn v. Lee, and Joice v. De
Moleyns, questions have arisen in what instance the Court will order
the delivery up of title deeds in favour of a person entitled to them,
though the person holding the title deeds may have taken them without
notice of any prior estate or interests. Jn those cases it will be ob-
served, that the sole object of the suits, which were by the legal owners,
was the recovery of the title deeds ; and the learned judges, by whom
those eases were decided, refused to give any assistance against a pur-
chaser for valuable consideration without notice, inasmuch as in each
case the legal owner might, in an action of trover, recover the deeds
at law.

Where, however, in consequence of a fund being in Court (Stack-
hQuse V. Countess of Jersey, 1 J. & H. 721), or in consequence of the
legal estate being outstanding in a trustee, and the beneficial interest
being claimed by several adverse but equally innocent purchasers for
value without notice, the Court is called upon to declare, and does de-
clare, the right to the fund or estate in question, in such cases as the
Court is called upon to make, and does make, a decree against some
one or more of such purchasers for value, such a decree would be ob-
viously incomplete in a material particular if, while declaring the plain-
tiff to be absolutelj' entitled to the whole beneficial interest iu the

20 BONA FIDE PURCHASERS.

estate, it left the title deeds in the possession of one of the defendants,
claiming to hold them under an adverse title -which the same decree
declared to have no foundation ; the Court therefore will, in such cases,
order the deliver}'' up of the title deeds. Per Lord Hatherley, L. C,
in Newton v. Newton, 4 L. R. Ch. App. 144. Suppose the owner of
an equitable estate for value conveys the whole estate to A., and then
does the same to B., and again conveys the whole estate to C, for
valuable consideration, having, in fact, nothing whatever to convey to
B. or to C. ; then neither B. nor C. can hold the title deeds of the prop-
erty against A. But the Court will, on declaring who is the real owner,
r*9q-| declare that B. or C. shall deliver *up to A. the title deeds be-
longing to that estate, of which A. is the sole and exclusive
owner. Per Lord Romilly, M. R., in Newton v. Newton, 6 L. R. Eq.
141 ; see also Frazer v. Jones, 17 L. J. Ch. (N. S.) 353.

Where the person creating a charge in favour of a subsequent claim-
ant, had any interest whatever in the subject-matter which he proposed
to charge, then the person in whose favour he has created this latter in-
cumbrance, and who has got possession of the title deeds belonging to
the estate, may hold them till he is redeemed or foreclosed ; and in such
cases the court will not go into the question of the greater or lesser
amount of the prior charge, but if he had a beneiieial interest in the
propertj', or a right to redeem it, that is sufficient to give the last in-
cumbrancer a right to hold the deeds. For instance, if the equitable
owner of an estate creates a first charge on it in favour of A., and a
second in favour of B., and a third in favour of C, to whom he delivers
up the custody of the title deeds, whether this order of priorities is
originally undisputed, or whether it is settled by the decree of the
Court, C. cannot be compelled to deliver up the title deeds until he is
foreclosed or redeemed, because there is a possibilitj' of interest in the
estate remaining to him after payment of A. and B. Per Lord Romilly,
M. R., in Newton-v. Newton, 6 L. R. Eq. 141 ; see also Thorpe v. Holds-
worth, 1 L. R. Eq. 139.

It may appear difficult to reconcile all the cases upon this subject
with each other, especially the cases of Williams v. Lamhe and Collins
V. Archer. Lord Westbury, however, in the important case of Phillips
V. Phillips, 4 De G. P. & Jo. 208 ; 8 Jur. N. S. 145 ; 31 L. J. Ch. N. S.
321, approves of the decisions of Williams v. Lamhe and Collins v
Archer, upon the ground that in those cases the application being made
where the Court had concurrent jurisdiction with Courts of law, the
rule that a defendant could plead that he was a purchaser for valuable
•consideration without notice, did not apply, as it did in the other eases
before noticed, where the application was made to the auxiliary juris-
diction of the Court. His Lordship gives the following summary of
the law on this subject : — " The defence of a purchase for valuable con-
sideration is the creature of the Court of equity. ... It seems at

BASSET V. NOSWORTHY. 21

first to have been used as a shield against the claim in equity of persons
having a legal title. Basnet v. Nosworthy, Rep. temp. Finch, 102, S. C,
2 White and Tudor's Leading Cases in Equity, 1, is, if not the earliest,
the best early reported case on the subject. There the plaintiff claimed
under a legal title, and this circumstance together with the maxim I have
*referred to (qui prior est tempore potior est jure) probably gave r^ic 04,-1
rise to the notion that this defence was good only against the
legal title. But there appear to be three clauses of cases, in which the
use of this defence is most familiar — first, where an application is made
to the auxiliary jurisdiction of the Court by the possessor of a legal
title, as by au heir-at-law (which was the case of Basset v. Nosworthy),
or hy a tenant for life for the delivery of title deeds (which was the case
of Walwyn v. Lee), and the defendant pleads that he is a bona fide pur-
chaser for valuable consideration without notice. In such case the de-
fence is good, and the reason given is, that as against a purchaser for
valuable consideration without notice, the Court gives no assistance —
that is, no assistance to the legal title. But this rule does not apply
where the Court exercises a legal jurisdiction concurrently y^Wn Courts
of law. Thus it was decided by Lord Thurlow in Williams v. Lambe
(3 Bro. C. C. 264), that the defence could not be pleaded to a bill for
dower ; and by Sir J. Leach in Collins v. Archer (1 Russ. & My. 284) j
that it was no answer to a bill for tithes. In those cases a Court of
equity was not asked to give to the plaintifi' any equitable, as distin-
guished from legal relief. The second class of cases is the ordinary one
of several purchasers or incumbrancers, each claiming in equity, and one
who is later or last in time succeeds in obtaining an outstanding legal
estate, not held upon existing trusts, or a judgment or any other legal
advantage, the possession of which may be a protection to himself or an
embarrassment to other claimants. He will not be deprived of this ad-
vantage by a Court of equity. To a bill filed against him for this pur-
pose by a prior purchaser or incumbrancer, the defendant may maintain
the plea of purchase for valuable consideration without notice, for the
principle is, that a Court of equity will not disarm a purchaser — that is,
will not take from him the shield of any legal advantage. This is the
common doctrine of the tabula in naufragio. Thirdly, where there are
circumstances that give rise to an equity as distinguished from an equi-
table estate — as, for example, an equity to set aside a deed for fraud,
or to correct it for mistake, and the purchaser under the instrument
maintains the plea of purchase for valuable consideration without no-
tice the Court will not interfere. Now these are the three cases in

which the defence in question is most commonly found."

Lord St. Leonards, in his last edition of Vendors and Purchasers
(I4th ed.), pp. 195 — 798, disapproves of the doctrine as laid down by
Lord Westbury in Phillips v. Phillips, and says, that " Till *the r^cjr t
case of Phillips v. Phillips the validity of the defence against an

22 BONA FIDE PURCHASERS.

equitable title appears not to have been questioned." Lord Westbury's
doctrine, however, appears not only to reconcile the apparently con-
flicting decisions upon this subject, but also puts the doctrine upon an
intelligible ground.

It is no doubt true that the plea of purchase for valuable considera-
tion without notice, may, as a general rule, be used as a defence both
as against a plaintiff having a legal or an equitable estate, where the
right of the plaintiff must necessarily be determined at law.*

If the plaintiff has a legal title, he is left to recover at law without
any assistance from equity ; if, on the other hand, the defendant, a bona
fid§ purchaser, has got the legal estate, a Court of equity will do
nothing to deprive him of the advantage he may obtain thereby in a
Court of law.

Where, however, a Court of equity has concurrent jurisdiction with
the Courts of law, as in matters of dower or tithes, it will, as in Wil-
liams V. Lavibe (3 Bro. 0. C. 264), and Collins v. Archer (1 Russ. &
My. 284), refuse to allow the plea of purchase for value without
notice a fortiori will it refuse to do so where the right of the plaintiff
is purely equitable, and must, if at all, be determined in a Court of
equity.

All that a Court of equity does when it allows the plea, is to send
the plaintiff without assistance to the forum proper to determine the
question at issue between the parties, when the Court itself has no
jurisdiction to do so. If the Court of equity has either concurrent or
exclusive jurisdiction, it refuses to allow the plea, for if it did not do
so its conduct in the first case would cause unnecessary delay and
expense, in the second case it would amount to an absolute denial of
justice. It follows that if courts of equity were invested with complete
legal jurisdiction, tlie plea could no longer be used.

The cases of Williams v. Lambe and Collins v. Archer appear to
have been rightly decided, because, to use the words of the learned
counsel for the plaintifis (Mr. Tinney and Mr. Rolfe) in the latter case,
and which are equally applicable in the former — " the plaintiffs apply
to a Court of equity (the subject being one in which a Court of equity
has concurrent jurisdiction), because the account, which is necessary to
complete relief, can be obtained more conveniently here than by pro-
ceeding at law:" 1 Russ. & My. 290. The reason, however, given for
the decision, viz., that the plea is no defence against a legal title, is
erroneous, and at variance with the numerous authorities already cited,
and does not appear to be supported either by the decision of Phillips
V. Phillips, *or the propositions laid down by Lord Westbury in
L -' that case.

A defendant, who may have a right, by setting up the defence in his
answer that he is a purchaser for value without notice, to protect him-
self from the production of title deeds, will not be able to do so as to

BASSET V. NOSWORTHT. 23

those the contents of which he has set forth in his answer, because
when a defendant professes to set out a deed the plaintiff has a right to
see whether it is stated correctly or not : Hunt v. Ulmes, 27 Beav. 62,
64 ; and see Litimer v. N''.ate, 11 Bligh. 154 ; 4 C. & F. 510 ; but see
Wigram on Discovery, 352, 2nd ed.

The defence that a person is purchaser for valuable consideration
will not prevent the Court from protecting the property pending litiga-
tion. Thus in Greensladev. Dare, IT Beav. 502, where a bill was filed
to impeach a conveyance of an advowson. Sir John Romilly, M. R.,
restrained the institution of a clerk presented by a person who set up
the defence that he was a purchaser for valuable consideration without
notice. " Although," said his Honor, " this Court regards with favour
the case of a purchaser for valuable consideration without notice, j'et
there being a real question in the cause between the plaintifi" and the
defendant, it does not allow the defendant to talse the fruit on an alle-
gation on his part, even though supported by evidence, until the hear-
ing of the cause, for then, and not until then, is the question in the
cause to be determined." Upon the hearing the bill was dismissed with
costs, 20 Beav. 284.

And it is clear that although a Court of equity will assist a widow
by putting a term out of her waj', where third parties are not inter-
ested, it will not give that assistance against a purchaser : D^Arcy v.
Blake, 2 S. & L. 388 ; Lady Radnor v. Vandehendy, Free. Ch. 65 ;
Show. P. C. 69.

In Baker v. Morgans, 2 Dow. 526, Baker, in 1T81, by an ejectment
for non-paj'ment of rent, entered upon the possession of a widow, ten-
ant for life of a lease for lives renewable forever, remainder to her
children, who were infants. Baker demised part of the premises to J.
C. Beresford, and part to J. Coghlan. The children, in 1806, long after
they came of age, filed their bill for relief against Baker, Beresford,
and Coghlan ; but it was held by the House of Lords, reversing a
decree of the Irish Court of Exchequer, that there was no ground for
interference in equity. Lord Redesdale observing, that the chief ques-
tion as to the interference of equity in such cases, had come before
him in the case of O'Connors v. Lord Bandon (2 S. & L. 679) ; tliat it
was only a question at law, and that the length of time during which
one of them had been of age before proceeding *commenced, r:,,^^-,
would be a strong objection, even at law. " He could not," he
added, " dismiss the subject without adverting to the situation in which
Beresford and Coghlan were placed by the decree. It was important
to keep in view, that they were both purchasers for valuable considera-
tion. Both had taken possession, and expended money on the premises ;
and this was the first time when equity had turned a purchaser for
valuable consideration out of possession when the legal title was in him.
The efiect of turning them out of possession was to vest a right of ac-

24 BONA FIDE PURCHASERS.

tion in them against Baker, who would thus be involved in difficulties
beyond description. Was a purchaser for valuable consideration bound
to see that the whole of a [jroceeding at law under which the vendor or
lessor was in possession, was perfectly regular ? There never was a
time when equity so dealt with purchasers for valuable consideration.
Even if this ground, then, was tenable as against Baker, it was not
tenable as against them. But there was nothing here to warrant the
plaintiffs to proceed in equity in any way ; the proceeding, if any were
competent, must be at law. Tliey did not state that they wanted any
necessary instrument ; there was no affidavit to the bill of any such
being lost ; and it even appeared by their own showing, that they had
evidence to proceed by ejectment, if they had so chosen. Equity, there-
fore, could not interfere."

In many other respects favour was shown to bona fide purchasers.
Thus, a commission of bankruptcy would not formerly have been super-
seded for fraud, if there were purchasers under it ; for, under the old
law a commission being superseded, all fell with it. {Ex parte Ed-
wards, 10 Ves. 104; Ex parte Leman, 13 Ves. 2TI ; Ex parte Bawson,
1 V. & B. 160 ; Ex parte Latour, 1 M. & B. 89.)

Nor will a Court of equity relieve against a mere accident, (-Hizruy v.
Woodhouse, Sel. Ch. Ca. 80) ; or rectify a mistake (Bell v. Cundall,
Amb. 101), so as to affect a purchaser without notice. The mistake or
ignorance of parties to a conveyance of their claims, will not turn to the
prejudice of a bonS, fide purchaser : Maiden v. lleniU, 2 Atk. 8 ; liar-
shall V. Collett, 1 Y. & C, Exch. Ca. 238. So, in Sturge v. Starr, 2
My. & K. 195, a man already married, performed the ceremony of mar-
riage with a woman, and joined with her in assigning her life interest
in a trust fund to a purchaser ; it was held, that though she might not
have executed such an instrument, had she been aware of the fraud
practised upon her, that fraud could not affect the rights of a bona fide
purchaser.

Mow purchaser may defend himself. — 1st. By demurrer, if it appear
clearly on the face of the *bill, that the defendant was a pur-
L -I chaser for valuable consideration without notice : see Mitf. Tr.
PI. 199, 4th ed.

2nd. By plea, which must be sworn to by the defendant : Marshall
V. Frank, Prec. Ch. 480. The plea must aver that the person who con-
veyed was seised, or pretended to be seised, when he executed the con-
veyance : Story v. Lord Winsdor, 2 Atk. 630 ; Jackson v. Euice, 4 Russ.
514 ; and that he was in possession, if the conveyance purported an im-
mediate transfer of the possession at the time when he executed the
purchase or mortgage deed: Trevanian v. Mosse, 1 Vern. 246; Lady
Lanesborough v. Lord Kilmaine, 2 Moll. 403 ; Ogilvie v. Jeaffreson, 2
Giff. 353, 379.

If it be of a particular estate, and not in possession, it must set out

BASSET V. NOSWORTHT. -iO

how the vendor became entitled to the reversion: Hughes v. Garth ^
Arab. 421. But if the purchaser set up a fine and non-claim as a bar
to the plaintiff's right, it is not sufficient to aver, that at the time the
fine was levied, the seller of the estate being seised, or pretending to be
seised, conveyed, &c., but it must be averred that he was actually seined :
Story V. Lord Windsor, 2 Atli. 630; Page v. Lever, 2 Ves. jun. 450 ;
Dobson V. Leadbeater, 13 Ves. 230. The plea must aver the actual con-
sideration (Millard's case, Freem. Ch. Ca. 43; Wag staff v. Bead, 2 Ch.
Ca. 156) ; although, in some cases, it has been held sufficient to aver
generally that it was valuable (More v. Mayhow, 1 Ch. Ca. 34 ; Day v.
Arundel, Hard. 510) ; but it must aver that the consideration was bona
fide paid, not merely secured to be paid : Hardingham v. Nicholls, 3
Atk. 304 ; Molony v. Kernan, 2 D. & War. 31. A mere statement of
the payment in the recital of the purchase deed in the plea will not be
sufficient (Maitland v. Wilson, 3 Atk. 814) ; and if the consideration
be valuable, equity will not inquire whether it be adequate ; because, as
is laid down in the principal case, " the question is not whether the con-
sideration be adequate, but whether it be valuable ; for if it be such a
consideration as will make the defendant a purchaser within the statute
27 Eliz., and bring him within the protection of that law, he ought not
to be impeached in equity : " More v. Mayhow, 1 Ch. Ca. 34 ; ^agstaff
V. Read, 2 Ch. Ca. 156 ; Bullock v. Sadlier, Amb. Y64 ; Mildmay v.
Mildmay, cited Amb. 76T.

The plea must also deny notice of the plaintiff's title or claim pre-
vious to the execution of the purchase deeds and the payment of the
consideration ; for if he had notice before either the execution of the
deeds, or the payment of the consideration, he would be bound by it :
Lady Bodmin v. Vandebendy, 1 Vern. 179 ; Jones v. Thomas, 3 P.
Wms. *243 ; Attorney- General v. Gower, 2 Eq. Ca. Ab. 685, pi. ^^„„-,
11 ; More v. Mayhow, 1 Ch. Ca. 34; Story v. Lord Windsor, 2 L J
Atk. 630. And the notice so denied must be notice of the existence of
the plaintiff's title, and not merely notice of the existence of a person
who could claim under that title: Kelsal v. Bennet, 1 Atk. 522, over-
ruling Brampton v. Barker, cited 2 Vern. 159.

Notice must be denied whether it be charged in the bill or not : Aston
V. Curzon, and Weston v. Berkeley, 3 P. Wms. 244, n. (/) ; Brace v.
Duchess of Marlborough, 3 P. Wms. 491, 6th Resolution; Hughes v.
Garner, 2 Y. & C, Exch. Ca. 328. Notice of fraud must be denied
by way of averment in the plea, otherwise the fact of notice of fraud
will not be in issue (Harris v. Ingledew, 3 P. Wms. 94 ; Meadoivs v.
Duchess of Kingston, Arab. 756 ; Hoare v. Parker, I Bro. C. C. 578 ;
S. C, 1 Cox. 224 ; Jackson v. Bowe, 4 Russ. 514). But it will be suffi-
cient if they are denied generally ; for it is not the office of a plea to
deny particular facts of notice, even if such particular facts are charged :
Pennington v. Beechey, 2 S. & S. 282 ; Thring v. Edgar, 2 S. & S.

26 BONA FIDE PURCHASERS.

274 ; Corkv. Wilcopk, 5 Madd. 328. If, however, particular instances
of notice of fraud are charged, the plea must be accompanied by an
answer denying the notice of fraud as specially and particularly as
charged bj' the bill, so that the plaintiflf may be at liberty to except to
its sufficiency (Pennington v. Beechey, 2 S. & S. 282 ; and see Anon., 2
Ch. Ca. 161 ; Price v. Price, 1 Vern. 186 ; Hardman v. Ellames, 5
Sim. 650 ; 2 My. & K. 132). But a general denial will be sufficient
since the orders of August, 1841, where the interrogatory is framed
in general terms : Gordon y. Shaw, li Sim. 293. And see Consolidated
Order XV., rule 3.

A settlement in consideration of marriage may of course be pleaded
as a purchase for valuable consideration (Harding v. Hardrett, Rep.
t. Pinch, 9) ; but if it be made after, in pursuance of an agreement be-
fore marriage, the agreement must be stated in the plea as well as the
settlement: Lord Keeper v. Wyld, 1 Vern. 139.

A plea of a purchase for valuable consideration protects a defendant
from giving any answer to a title set up by the plaintiff ; but a plea of
a bare title only will not be sufficient: Brereton v. Gamul, 2 Atk. 241.
And where a defendant has a right to plead to a discovery of deeds
and writings, he must except his own purchase deeds, for he plea-ls
them : Salkeld v. Science, 2 Ves. lOl.

3rd. Bij answer If a purchaser without notice neglects to protect

himself by plea, he maj' defend himself by answer (Attorney- General
r*^m *^" '^^^^^^S) 1'^ Beav. 285, 291) ; but if he submits to answer, he
must, according to the general rule, answer full}'', although he
might by demurrer or plea have protected himself. " It was," observes
Lord Lyndhurst, " for some time considered an exception to the rule
when the defence was a purchase for vahiable consideration without
notice (Jerrard v. Saunders, 2 Ves. jun. 454; Howe v. Teed, 15 Ves.
3T2 ; Leonard v. Jjconard, 1 Ball & B. 323) ; but in the case of Ovey
V. Leighton (2 S. & S. 234), where that point came distinctly before
Sir John Leach, he said that it fell within the same principle, and he
decided accordingly; and afterwards the present Vice-Chancellor of
England, in the case of The Earl of Portarlinglon v. Soulby (1 Sim.
28), acted upon that decision. I consider, therefore, that this is no
longer to be considered an excepted case ; and that a party whose de-
fence is, that he is a purchaser for valuable consideration without notice,
cannot, if he chooses to make that defence by his answer, refuse to
answer consequential matters ; and that, if he wishes to protect himself
from that necessity, he ought to avail himself of the defence by plea
or demurrer:" Lancaster v. Evors, 1 Ph. 352.

In a case in the House of Lords, Lord Eldon made the following re-
marks as to the different defences which might be set up by a pur-
chaser : " Certainly there is a great difference," said his Lordship, " in
point of prudence, between pleading that he was a purchaser for valu-

BASSETV.NOSATOKTHY. 27

able consideration without notice, and running the risk of what may
appear at the hearing. If a man buys an estate, and a bill is filed, and
a title shown to relief, he may plead that he is a purchaser for valuable
consideration without notice ; and he must support this plea by deny-
ing all the circumstances from which notice miiy be implied ; and if,
after all that can be said to charge him with notice, he is hardy enough
to swear that he had no notice, and to deny all the circumstances, and
he does plead, and refuses to try the question in any other way, then it
must rest very much with his own conscience. But if he forbears to
plead, and if it turns out in the progress of the suit that he was a pur-
chaser for valuable consideration without notice, it is too much to de-
prive him of the effect of that, merely because he does not stop the
suit at first, if it be so in fact:" Lord Rancliffe v. Parkins^ 6 Dow,
230. It has however been recently decided, that where a defendant puts
in an answer, but does not set up the defence that he is a purchaser for
value without notice, he cannot afterwards insist on that defence : Phillips
V. Phillip.f, 4 De G. F. & Jo. 208 ; 31 L. J. N. S. (Ch.) 321 ; 8 Jur. (N.
S.) 145 ; and *see Lyne v. Lyne, 21 Beav. 318 ; 8 De G. Mac. & r^coi-i
G. 553. '- -^

Assistance given by Courts of Equity to bona fide purchasers.] —
Hitherto it has been taken into consideration how far a purchaser with-
out notice can defend himself, and hj what means ; but equity will not
onlj' stand neutral, and render no aid against a purchaser, it will also,
as laid down by Lord Nottingham in the principal case, assist him.
Thus, upon the application of a bon& fide purchaser without notice,
ancient statutes (Pembroke v. Eyre, Toth. 158 ; Purge v. Wolfe, Toth.
160), sleeping mortgages, or incumbrances under which no claim has
for a long time been made (Butter v. Partley, Toth. 160; Abdy v.
Loveday, Rep. t. Finch, 250 ; Sibson v. Fletcher, 1 Ch. Rep. 59 ; Lord
Billon V. Gostelloe, 2 Moll. 512; Wallace v. Lord Donegal, 1 D. &
Walsh, 461), have been decreed by the Court to be delivered up, can-
celled, or vacated.

Where a person, knowing his own title to property, even although
covert or under age, encourages, or even lies by, and permits a pur-
chaser to buy it, equity will compel such a person to convey to the pur-
chaser : [ Wendell v. Bennsellaer, 1 Johnson's Ch. 354 ; Vanhorn v.
Frick, 3 S. & R. 278 ; Carr v. Wallace, 1 Watts, 100 ; Wells v. Pierce,
7 Foster, 503 ; Eiggins v. Ferguson, 14 Illinois, 269 ; 2 Smith's Lead-
ing Cases, 759, 7th Am. ed. ; Belknapp v. Nevins, 2 Johnson, 573 ;
Gheeney v. Arnold, 18 Barbour, 435; Saunderson v. Ballance, 2 Jones,
Eq. 322 ; Godefrey v. Caldwell, 2 California, 489.] See Savage v.
Foster, 9 Mod. 35 ; in which case a mother being entitled under a
settlement to a life interest in an estate, with remainder to a daugh-
ter by a first marriage in tail, on the marriage of her daughter by
a second marriage, conveyed the land to her own use for life, with

28 BONA FIDE PURCHASERS.

reinaindei- to tlie intended husband and his heirs. The daughter by
the first marriage, and her husband who knew the lands were settled
upon her in tail, solicited her mother to make the convej-ance, and
assisted in carrying on the marriage. The lands were afterwards
sold, and, upon a bill being filed by the purchaser, it was decreed that
the eldest daughter should levy a fine to the plaintiff, to extinguish her
right to the lands in the settlement, and that the plaintift" should have
a perpetual injunction to quiet his possession. " This bill," it was ob-
served by the Court, " is brought to be relieved against a fraud in the
defendant, who would avoid the plaintilT's title by an elder settlement,
though she was privy to and assisting in carrying on the marriage of
him under whom the plaintiff claims, and never gave any notice of the
title to the purchaser. Now, when anything in order to a purchase is
publicly transacted, and a third person, knowing thereof, and of his own
right to the lands intended to be purchased, doth not give the purchaser
notice of such right, he shall never afterwards be admitted to set up
such right to avoid the purchase : for it was apparent fraud in him not
to give notice of his title to the intended purchaser ; and in such case
r*qo-| infancy *or coverture shall be no excuse; for though the law
prescribes formal con\'eyances and assurances for the sales and
contracts of infants and feme coverts, which every person who con-
tracts with them is presumed to know ; and if tliey do not take such
conveyances as are necessary, they are to be blamed for their own
carelessness, when they act with their eyes open ; yet, when their right
is seci"et, and not known to the purchaser, but to themselves, or to such
others who will not give the purchaser notice of such right, so that there
is no laches in him, this Court will relieve against that right, if the per-
son interested will not give the purchaser notice of it knowing he is
about to make the purchase ; neither is it necessary that such infant or
feme covert should be active in promoting the purchase, if it appears
that they weiis so privy to it tliat it could not be done without their
knowledge." See also Hobbs v. Norton, I Vern. 136; 2 Ch. Ca. 128;
Hanning v. Ferrers, 2 Eq. Ca. Ab. 356, pi. 20 ; Glare v. Earl of Bed-
ford, 13 Vin. 536 ; Walts v. Gresswell, 9 Vin. 415; S. G., nom. Watts
V. Hailswell, 4 Bro. C. C. 507, n. ; Berrisford v. Milward, 2 Atk. 49
Gory V. Oertcken, 2 Madd. 40 ; Mangles v. Dixon, 1 Mac. & G. 431
Thompson v. Simpson, 2 J. & L. 110; Govett v. Richmond, 1 Sim. 1
Nicholson v. Hooper, 4 My. & Cr. 1T9, 185, 186 ; Overton v. Banister,
3 Hare, 503. And see, and consider, Stikeman v. Dawson, 1 De G. &
Sm. 90 ; Wright v. Snowe, 2 De G. & Sm. 321 ; Vaughan v. Vander-
stegen, 2 Drew. 363 ; In re King, 3 De G. & Jo. 63 ; Sharpe v. Foy, 4
L. R. Ch. App. 35 ; In re Lush's Trusts, lb. 591.

But altliough an infant may falsely represent himself of age, a person
aware that he was not of age, and who was therefore not deceived

BASSETV.NOSWORTHT. 29

by such representation, cannot obtain relief in equity : Nelson v.
Stacker, 4 De G. & Jo. 458.

Upon the principle laid down in Savage v. Foster, if a person having
an incumbrance on an estate, deny the fact upon an inquiry being made
by a person about to purchase it, equity will relieve against the incum-
brance : Ibbolson v. Rhodes, 2 Vern. 554 ; Amy's case, cited 2 Ch. Ca.
128 ; Hickson v. Aylward, 3 Moll. 1 : so likewise, where upon a treaty
for a mortgage of an estate, a person who was entitled to be recouped
out of the estate, in case a certain incumbrance was levied out of his
own estnte, was in communication with the mortgagee, to whom he was
referred as a person to give information upon the subject of the trans-
action, but he gave the mortgagee no information of his equitable claim,
it was held by Lord Chancellor Sugden that he could not afterwards
set up his claim against the mortgagee : Boyd v. Belton, 1 J. & L. '730.
*If a trustee, in whom property is vested, represent it as un- r^i^qq-i
incumbered, he will be answerable to the purchaser in case it
turns out that he has had notice of an incumbrance, and he will not be
allowed to allege forgetfulness as an excuse. See Burrows v. Lock, 10
Yes. 470, 4Y5 ; Slim v. Groucher, 2 Giff. 31, 1 De G. P. & Jo. 518 ; Be
Ward, 31 Beav. 7. But in order to render a trustee so liable, his repre-
sentations must be clear and unambiguous, so that there can be no
doubt as to the sense in which they were used, unless indeed he used
ambiguous language for the purpose of deception : Stephens v. Venables,
31 Beav. 124.

Mere silence, however, on the part of an incumbrancer, where he is
not brought into contact with parties engaged in any transaction rela-
tive to the property upon which he claims a charge, or where he is not
called upon by them to speak concerning it, will not, it seems, amount
to a waiver of it on his part. Thus, in Osborn v. Lea, 9 Mod. 96, the
Court was of opinion, " that it would be very hard for a mortgagee to
be at the peril of losing his mortgage money, if he did not give notice
of his mortgage to any person whom he knew to treat about the sale, or
any settlement of the lands in liis mortgage ; and that it very much dif-
fered from the case where the mortgagee himself helps to carry on such
trcatJ^"

Even where a person has been induced to become a purchaser, by the
misrepresentation of another, ignorant of his own right, but where he
might have had notice of it, equity will relieve the purchaser ; Shirley v.
Wright, 2 Ohio, N. S. 651, 2 Smith's Lead. Cases, T69, 1th Am. ed. ; thus,
in Teasdalev. Teasdale, Sel.Gh. Ca. 59, a father, supposing his son to be
tenant in fee, stood by and let his son make a settlement on his intended
wife, for her jointure. The father, after the decease of his son, discov-
ered that he was only tenant for life, and that the fee was in himself, on
which title he had a verdict, and j udgment at law. Upon a bill being
filed by the son's widow, it was insisted on behalf of the father, that the

30 BONA FIDE PURCHASERS.

case was different from the cases where persons cognizant of their title
had concealed them ; that the father did not know of his title, and there-
fore could not be said to conceal it. But Lord King said he should
make no difference whether he knew of this title or not, considering the
near relation of father and son. It was plain, it was thought the son
had the fee ; and, had it been known it was in the father, it would have
been insisted on that he should have joined, else the marriage would
not have been had ; as he knew of the settlement, he should not take ad-
vantage against it. See also Pearson v. Morgan, 2 Bro. C. C. 388 ;
West V. Jones, 1 Sim. N. S. 205.

[The distinction seems to be between participation or procurement,
and silence or acquiescence; the one imposing no liability, unless there
is wilful concealment or fraud : Glabaugh v. Byerly, "7 Gill, 384 ; Strong
V. EUsioorth, 26 Vermont, 369 ; Knovff v. Thompson, 4 Harris, 35t ;
while the other may create a bar, by rendering it more just to throw
the loss on him who has occasioned it, than on a purchaser who has
been induced to buy by an assurance, which, though made in good
faith, proves to be unfounded ; Wells v. Pierce, 7 Foster, 503 ; Willis
V. Swartz, 4 Casey, 413 ; Beaupland v. 3I'Eeen, lb. 124 ; BFKelvey
V. Truhy, 4 W. & S. 323. No one should be made answerable for
stating his opinion truly, or for answering a question according to his
knowledge or belief; Parker v. Barker, 2 Metcalf, 421 ; Laurence v.
Brown, 1 Selden, 394 ; Morris v. Moore, 1 Humphreys, 343 ; Tilgh-
man v. West, 8 Iredell, 83 ; Royston v. Howie, 15 Alabama, 309 ; but
the case is widely different where one officiously induces another to
bu3' or expend money by a statement which is untrue in fact, although
made under the influence of mistalie and without an intention to de-
ceive; Stiles V. Cowper, 3 Atkyns, 692; Buchanan v. Moore, 13 S. &
R. 394 ; Richardson v. Pickering, 41 New Hampshire, 380 ; Robinson
V. Erwin, 2 Penna. 19 ; M^Kelvey v. Truby ; Wells v. Pierce, 2 Smith's
Leading Cases, 662, 5th Am. ed. ; and see post, vol. 2, note to Ryall v.
Rowles, for cases on the analogous question which arises on the assign-
ment of choses in action.

In M''Kelway v. Amour, 2 Stockton's Ch. 115, the owners of two ad-
jacent lots of land were under the influence of a mistaken impression as
to the identity of their lots, each supposing that the land which be-
longed to his neighbor was his own. In consequence of this mistake,
one of them built a house on the lot of the other, and the latter stood
by without objecting, while the walls were going up. A bill having
been filed, under these circumstances, for relief, the Court held that
both parties were bound to redress a common error for which neither
could reproach the other, and that the defendant might elect to retain
the land and pay for the building, or to convey the land and receive a
pecuniary compensation for its value, but that if he would do neither,
he should then be compelled to exchange the lot which belonged to him

BASSET V. NOSWORTHT.

81

for the adjacent lot, which both parties supposed to be his when the
house was erected, although it really belonged to the complainant.

The principle that acquiescence may estop applies with peculiar force
to chattels and to choses in action, because the right to personal prop-
erty is usually transferred in pais, and the buyer cannot rectify or avoid
the error by examining the written or recorded title ; The Morris
Canal Co. v. Lewis, 1 Beasley, 323.]

In the principal case, the Lord Keeper justly remarked, that the
*rule by which a Court of equity affords protection to purchasers,
is agreeable to the wisdom of the common law, where the maxims
which refer to descents, discontinuances, non-claims, and collateral war-
ranties, were only the wise arts and intentions of the law to protect the
possession and strengthen the rights of purchasers. The same object
has been constantly kept in view by the Legislature, by which many
statutes have been enacted for the protection and relief of purchasers.

As to tacking incumbrances, see Marsh v. Lee, ante, vol. i., p. 611.
As to what amounts to notice, see note to Le Aeue v. Le Neve, post,
p. 4C.

[*34]

The general rule, that priority
in point of time gives priority in
point of right, is recognized by
courts of equity, as well as by
those of common law ; 2 John-
son's Ch. 608; 18 Wend. 253; 9
Paige, 76 ; Watson v. Le Boy, 6
Barbour, S. C. 485 ; Boone v.
Chiles, 1 0 Peters, 1T7 ; Willoughby
X. Willoughby, 1 Term. Y63, 1U ;
Frere v. Moore, 8 Price, 475, 488.

If land which has been mort-
gaged to different persons succes-
sively, be sold and the proceeds
brought into chancery for distribu-
tion, the first mortgagee is entitled
to a preference. Under these cir-
cumstances, the case falls within
the general rule, prior in tempore,
potior in jure, and it will make no
difference that tlie second mort-
gagee gave value without notice,
and that neither claimant has the
legal title. See Colyer v. Finch,

19 Bevan, 510; 5 House of Lords
Cases, 906, 921 ; Brace v. The
Duchess of Marlborough, 2 P.
Wms. 490, 495; Willoughby v.
Willoitghby, 1 Term R. 730. But
where a chancellor, instead of deal-
ing with the thing itself, has to
reach it through the conscience of
the parties, he must necessarily in-
quire whether the complainant has
a right in foro conscientise, which
cannot be effectually prosecuted at
law. In other words, it must ap-
pear that the defendant is morallj'
bound to do what the pra3er of the
bill requires, and that the aid of
equity is requisite to perfect the
complainant's title. It follows,
that a chancellor can have no
jurisdiction as against one who
having bought in good faith, may
conscientiously retain what he has
acquired if he can do so con-
sistently with the law of the land.

32

BONA FIDE PURCHASEKS.

If the complainant has the legal
title, it miiy be enforced before a
tribunal constituted for that end.
If he has not, there is no moral
obligation on the defendant to
make way for the complainant.
Hence, a court of equity stands
neutral, and will not lend its aid
to either side ; Beekman v. Frost,
14 Johnson, 544, 562. In Jerrard
V. Saunders, 2 Vesey, jr., 454,
451 ; Lord Loughborough de-
clared, " against a purchaser for
valuable consideration, this court
has no jurisdiction. You cannot
attach upon the conscience of the
party any demand whatever, where
he stands as a purchaser having
paid his monej', and denies all
notice of the circumstances set up
by the bill. * * * Against
such a one, this court will not
take the least step imaginable."
Or as the principle is stated by
Sugden in terms that have been
adopted by the Supreme Court of
the United States : " A court of
equity acts only on the conscience
of the party ; and if he has done
nothing that taints it, no demand
can attach upon it so as to give
jurisdiction." Sugden on Vendors;
Boone v. Ghilles, 10 Peters, 117,
210. The dicta of Lord Eldon in
Walwyn v. Lee, 9 Vesey, 24, ante,
13, are but an amplification of this
principle.

It is accordingly established, that
a bona fide purchase for value, and
without notice, is a good defence,
not only against all prior equities,
but against all adverse proceed-
ings in equity, whether instituted
td"- compel the purchaser to sur-
render what he has bought, or to

make a discovery which might be
used to his prejudice in a court of
law ; Zollman v. Moore, 21 Grat-
tan, 313 ; Carter v. Allen, lb. 241 ;
Howell v. Aishmore, 1 Stock-
ton, 82 ; Jones v. Zollicoffer, 2
Taylor, 214 ; Demarest v. Wyn-
coop, 3 Johnson's Chancery, 141 ;
High V. Batte, 10 Yerger, 335;
Woodruff V. Cook, 1 Gill & J.
210 ; Whittick v. Kane, 1 Id. 202 ;
Owings v. Mason, 2 A. K. Marshall,
380 ; Goodtitle v. Cummings,
Blackford, 119 ; Varick v. Briggs,
6 Paige, 323 ; Tompkins v. Powell,
6 Leigh, 516 ; Hughson v. Mande-
ville, 4 Dessaussure, 81 ; Maywood
V. Lubcock, 1 Bailey's Equity,
382; Brown v. Budd, 2 Carter,
442 ; Bany. M' Knight, 6 Halsted,
385 ; Mundine v. Pitts, 14 Ala-
bama, 84 ; Heilner v. Imbrie, 6 S.
& R. 401. The source or nature
of the prior equity is immaterial ;
and a vendor who conveys Black-
acre by mistake for Whiteacre, can-
not reclaim it from a subsequent
bona fide purchaser ; Harrison v.
Cochelin, 23 Missouri, 111.

Every one is a purchaser within
this rule who gives value or
changes his position for the worse,
under a belief that the vendor is
entitled, which is justified by what
appears at the time, although the
event shows it to be ill founded.
The sale need not be absolute; it
is enough that money is advanced,
or credit given in any other form
and the land taken as a security.
A mortgagee is consequently enti-
tled to protection as a purchaser,
and the law has been so held from
an early period ; Willoughby v.
Willoughby, 1 Term. 163 ; Dicker-

BASSET V. NOSWORTHY.

33

son V. Tillinghast, 1 Paige, 214 ;
Boyd V. Beck, 29 Alabama, 713;
Wells V. Morrow, 38 Id. 125; Por-
ter V. Green, 4 Clarke, 511. But
the mortgage must be given for an
advance made at the time, and not
as a mere collateral or additional
security for the fulfilment of a
previous obligation ; Dickerson v.
tillinghast, 4 Paige, 214. One
■who takes a deed or mortgage
solely in consideration of an ex-
isting debt, is not a purchaser,
because he receives without giv-
ing anything in return. But if
time be given for the payment of
the debt, or a valid security relin-
quished, and a fortiori if the grant
or mortgage is accepted in satis-
faction, a new consideration will
arise, ami the transaction may be
valid as against an antecedent
equity; Padgel v. Laurance, 10
Paige, 170, 180; PetrieY. Clark,
11 S. & R.371; 2 American Lead.
Cases, 223, 5th ed.

A grantee from a bona fide
purchaser stands in tiie same
position as the grantor, and will
be equally favored by a chancel-
lor, although affected with notice
at the time of the grant ; Bracken
V. Miller, 4 W. & S. 102; Church
V. Church, 1 Casey, 228. The
grantor's conscience is clear, and
he may transfer that which he
might honestly retain. The rule
is not less politic than just, because
the jus difponendi would other-
wise be clogged by a restraint of
indefinite duration ; Bumpus v.
Plainer, 1 Johnson's Ch. 213 ;
Fletchtr v. Beck, 6 Cranch, 36;
Alexander v. Pendleton, 8 Id. 462 ;
Vattier v. Hinde, 1 Peters, 252;
VOL. II. — 3

Boone v. Chilles, 10 Id. 177 ; Dana
V. Newhill, 13 Mass. 498 ; Connec-
ticut V. Bradish, 14 Id. 296 ; IVwll
r. Bigelow, 16 Id. 406 ; Boynton
V. Bees, 8 Pick. 29 ; Filby v. Mil-
ler, 1 Casey, 264 ; Bulgers v.
Kingsland, 3 Halsted's Chancery,
178, 658 ; Blight's Heirs -v. Banks,
6 Monroe, 198 ; Ealstead v. The
Bank of Kentucky, 4 J. J. Mar-
shall, 554 ; Gallatian v. JErwin,
Hopkins, 48 ; 8 Cowen, 36 ; Bum-
pus V. Plainer, 1 Johnson's Chan-
cery, 213 ; Demarest v. Wyncoop,
3 Id. 147 ; Varick v. Briggs, 6
Paige, 323 ; Griffith v. Griffith, 9
Id. 315 ; Lacy v. Wilson, 4 Mun-
ford, 413 ; Curtis v. Lanier, 6 Id.
42 ; Brackett v. Miller, 4 W. & S.
102 ; Mott V. Clark, 9 Barr, 399 ;
The City Council v. Paige, Spear's
Ch. 159 ; Holmes v. Stov^, 3 Green's
Ch. 492.

In like manner, notice at a sale
under an execution, will not afiect
the purchaser unless the equity is
anterior to the judgment, because
he is entitled to fall back on the
right of the judgment creditor ; or,
to speak more accurately, because
the judgment creditor is entitled
to obtain payment of the debt, and
cannot be precluded from doing so
by information which comes too
late after the lien has attached ;
Henderson v. Downing, 24 Missis-
sippi, 208 ; Schutt v. Large, 6
Barb. 375. But one who acquires
or parts with an estate fraudu-
lently', cannot clear the title by
conveying the property to a bona
fide purchaser, and then taking a
reconveyance ; and a trust will on
the contrary be fastened on the
estate as soon as it returns to

S4

BONA FIDE PURCHASERS.

his hands ; Church v. Church, 1
Casey, 218 ; Oliver v. Fiatt, 3
Howard, 401 ; Schutt v. Large.
And it is well settled in general,
that to make a defence, grounded
on a purchase for value, available,
there must be positive good faith,
as well as absence of notice, and
that when there is anything in-
equitable in the conduct of the
purchaser, or in the circumstances
under which he buys, he will not
be entitled to the protection of a
court of equity ; Gram v. Mitchell,
1 Barbour's Ch. 251.

A purchase without notice from
a purchaser with notice will confer
a valid title, because the vendee
is not answerable for a fraud of
which he is ignorant ; Tompkins
V. Pow)e?Z, 6 Leigh. 176; GLidden
V. Hunt, ^ Pick. 221 ; Varick v.
Boggs, 6 Paige, 323.

It results from the same prin-
ciple that a bona fide purchase is
valid, not only against an ante-
cedent equity, but although the
premises were fraudulently ac-
quired by the vendor ; Somes v.
Brewer, 2 Pick. 184 ; Wood v.
Mann, 1 Sumner, 506 ; Galatian
V. Erwin, Hopkins, 48.

It seems that formerly a chan-
cellor would not deprive a bona fide
purchaser of an advantage gained
by fraud or even feloniously, ante,
5 ; See Zollman v. Moore, 21 Grat-
tan, 318, 321 ; but it was held with
more reason in Sanders v. Dehew,
1 Vernon, 271, that a purchaser
can.iot protect himself by taking
a conveyance from a trustee with
knowledge that it is a violation
of the trust ; Willoughby v. Wil-
loughbij, 1 Term. 763, 771. And

the recent cases of Fielcher v.
Rawlins, 9 L. R. Eq. 53, and
Garter v. Garter, 3 Kay & John-
son Ch. 617, are to the same effect.
So to cite an analogous case, an
incumbrancer who takes an assign-
ment of an outstanding term,
knowing that it is held for the
protection of a mortgage, cannot
set it up against another mortgage
to the same part}', of which he was
ignorant. For as the second mort-
gagee has the best right to an as-
signment of the term, so it cannot
be used against him by one who
buys with notice ; Willoughby v.
Willoughby 1 Term. 763, 771.

It was said in the principal case
that equity will not disarm a pur-
chaser, but assist him. The weight
of authority, nevertheless, is that
a bona fide purchase is not a
ground for relief, although it may
be a defence ; Patterson v. Slaugh-
ter, Ambler, 293 ; Beekman v.
Frost, 1 Johnson Ch. 288; 14
Johnson, 544, 561. In the case
last cited, Spencer, C. J., observed :
" No book of precedents, no treatise
on equity, furnishes an instance of
a bill filed on the ground that
there has been a purchase without
notice and for a valuable considera-
tion." In Beekman v. Frost, the
bill alleged that the defendant held
a mortgage for $3000, which had
been erroneously recorded as being
for a debt of $300 ; that the com-
plainant purchased the mortgaged
premises in good faith, without
notice of the mistake ; and that he
tendered the sum of $300, with in-
terest, which was refused. The
prayer was for an injunction to
prevent the defendant from dis-

BASSET V. NOSWORTHY.

35

posing of the premises, under a
provision in the deed authorizing
a sale in case of default. It was
held hy the court of errors, revers-
ing tlie decree of the chancellor,
that the complainant was not enti-
tled to such relief on the facts
averred. His liability did not ex-
tend beyond the debt as recorded,
unless he had notice ; but the pro-
per way of raising the question
was through a bill to redeem, aver-
ring his readiness and willingness
to pay the $300, which was con-
fessedly a charge on the land.

It is no doubt true, that a court
of equity will not assist a purchaser
against one who has a prior
right which he can maintain with
a good conscience ; but it would be
too much to assert that a purchase
cannot be a ground for equitable
relief and discovery. A vendee,
under articles of agreement, may
sustain a bill for specific perform-
ance against the vendor and those
claiming under him with notice.
And it is well settled that equity
will supply the defective execution
of a power in aid of a purchaser.
The true rule therefore appears to
be that to entitle a purchaser to
come into a court of equity as a
plaintiff, it must appear that the cir-
cumstances are such as not only to
discharge his conscience, but charge
the defendant's. If the latter is
under an obligation which cannot
be adequately enforced at law, a
chancellor will not withhold his
aid, because the complainant's right
grows out of a purchase. The ratio
decidendi in Buckman v. Frost,
seems to have been that the mort-
gagee was as much a purchaser as

the complainant, and the equities
being equal, there was no reason
why the former should be enjoined.
But the conduct of the mortgagee
in proceeding to sell under the
power, for a greater amount than
was legally due as between him
and the complainant, and after a
tender had been made hy the lat-
ter, was clearly inequitable, and
therefore a fit subject for an in-
junction.

Lord Chancellor Cowper is re-
ported to have said that a court of
equity will not compel a trustee
to act, or to afford the cestui que
trust the means of acting for him-
self, to the prejudice of a bona fide
purchaser, and this doctrine is
seemingly approved by Sugden.
It would, nevertheless, appear that
as the favor shown to a purchaser,
is because there is nothing to
charge his conscience, it should
not extend to discharging the con-
science of another. Moreover, while
a purchaser may claim protection
where the bill is filed directly
against him, a chancellor will not
refrain from enforcing a just right
because it may incidentally preju-
dice a purchaser. A decree wilt
not be made against a bona fide
mortgagee, at the instance of a
prior incumbrancer, but a sale or
foreclosure will be unhesitatinglj'-
decreed on behalf of a first mort-
gagee, although a subsequent bona
fide mortgagee will thereby be ex-
cluded from the fund ; ante, 16.

It seems to have been thought
in some instances, tliat a plea that
the defendant is a bona fide pur-
chaser, is not valid, unless he has
acquired the legal title, and does

36

BONA FIDE PURCHASERS.

not apply where the vendor had no
right, or had parted with his right
by a prior deed. See Polk v. Gal-
lant^ 2 Dev. & Bat. 395 ; Winhorn
V. Gorrell, 3 Iredell Eq. 117; Boone
Y. Chilles, 10 Peters, 171. Wood
V. Mann, 1 Sumner, 506. But
this is at variance with the princi-
ple that a chancellor has no juris-
diction where there is nothing to
affect the defendant's conscience.
An innocent purchaser is not less
entitled to favor in a court of equity
because the vendor had nothing to
convey ; ante, 6. It is accordingly
clear under the English decisions,
that it is not essential to the im-
munity of the purchaser that he
should have acquired the legal
estate. It is enough that he has
abetter right to such estate than
his adversary ; Coleman v. Cooke,
6 Rand. 618 ; Walker v. Boding-
ton, 2 Vernon, 599 ; Willoughby v.
Willoughhy, 1 Term, 763, 768. A
puisne mortgagee may, ^ay having
an outstanding term which is held
in trust to protect the inheritance,
assigned to a trustee for his use,
obtain a preference over a prior
mortgage of which he was igno-
rant, though not if he knew of its
existence when he made the loan ;
Willoughhy v. Willoughhy. So, in
Williamson v. Gordon's Ex'rs, 5
Munford, 257, where property
which had been conveyed in trust
for the payment of debts, leaving
a resulting equity in the grantor,
was subsequently sold by him to
the plaintiff, who applied the pur-
chase-money in discharge of the
trust, subject to an agreement with
the trustee for a conveyance, this
agreement, though not fulfilled,

was held to give the purchaser a
better right to the legal title than
that of the holder of an interme-
diate equity, for which nothing
had been actually paid, and which
had grown up between the date of
the original deed of trust, and that
of the sale to the plaintiff. A
similar opinion was expressed in
The Mutual Assurance Society v.
Stone, 3 Leigh, 218, although the
circumstances did not require its
application. It would, neverthe-
less, appear that a covenant by a
trustee or other holder of the legal
title to convey it to a purchaser,
will not give him " a better right"
as against one to whom the trustee
actually conveys without notice,
because the covenantee has a mere
equity to a specific performance,
and not the law. See Maundrell v.
Maundrell, 16 Vesey, 247; Frere
V. Moore, 8 Price, 475.

It is well settled, on the one hand,
that notice before the sale is per-
fected by the payment of the price
and the execution of the deed, will
invalidate any subsequent step that
may be taken by the purchaser ;
Murray v. Finster, 2 Johnson's
Ch. R. 155 ; Frost v. Beekman, 1
Id. 288 ; Wormley v. Wormley, 8
Wheaton, 421 ; Beck v. Uhrich, 1
Harris, 636 ; Jewett v. Palmer, 7
Id. 65 ; Losey v. Simpson, 3 Stock-
ton, 246 ; and on the other, that
where the character of a bona fide
purchaser has been acquired by
paying value and obtaining a con-
vej'ance, notice of an antecedent
equity will not preclude the ven-
dee from strengthening his posi-
tion by any means that do not
savor of wrong. One who takes

BASSET V. NOSWORTHT.

37

an equitable title or incumbrance
in ignorance of its nature, and un-
der the belief that he is acquiring
a legal right, may, therefore, pro-
tect himself by getting in the legal
title to the exclusion of equities
prior to his own ; Bagarly v. Gai-
thei\ 2 Jones' Eq. 80 ; Carroll v.
Johnston, lb. 120 ; Boone v. Chil-
les, 10 Peters,, 177. Accordingly,
an assignment of the legal estate
in the form of a first mortgage or
outstanding term, to a subsequent
mortgagee, will entitle him to a
preference over an intervening
mortgage, of which he was igno-
rant when he made the loan ;
Marsh v. Lee, 2 Ventris, 337 ;
Willoughby v. Willoughby, 1 Term,
763 ; Sugden on Vendors, 695 ;
Adams Eq. 103. This doctrine,
which is commonly known as that
of tacking, can have no application
in this country, unless both in-
cumbrances are unrecorded, for
where a prior mortgage is of
record, junior encumbrancers are
held to have notice of its ex-
istence, and where it is not, it will
be postponed under the operation
of the recording acts, to any other
which is; vol. 1, 855, notes to
Marsh v. Lee. As between two
equitable liens, which do not ap-
pear of record, that which is forti-
fied by the legal title should pre-
vail. But the union of the legal
and equitable estate will not pro-
duce this result, unless they not
only meet in the same hand, but
are held in the same right, and a
third mortgagee will not obtain
priority over the second, by ap-
pointing the holder of the first
mortgage as his executor, although

the latter accepts the office ; Barnet
V. Wilston, 12 Vesey, 130.

The statutes of the several
States declare unregistered deeds
and mortgages void against sub-
sequent purchasers. It is well
settled, that to entitle a purchaser
under these acts, he must have
given value in good faith ; Dick-
ersony. Tillinghast,4 Paige, 214;
Harris v. Norton, 16 Barb. 464 ;
Maupin v. Emmons, 4 Missouri,
304; Spackman v. Ott, 15 P. P.
Smith, 131 ; Cary v. White, 52
New York, 38 ; Nice's Appeal, 4
P. F. Smith, 206. Knowledge, or
the notice which is equivalent to
knowledge, may consequently take
the place of registration ; Henry
V. Morgan, 2 Binney, 497 ; Jac-
ques V. Weeks, 7 Watts, 90 ; The
Union Canal Co. v. Young, 1
Wharton, 432 ; Farmers' Bank v.
Bronson, 14 Michigan, 361 ; Mat-
thews V. Eueritt, 23 New Jersey
Eq. 473 ; Owens v. Miller, 29
Marj-land, 144 ; Fort v. Burch, 5
Denio, 487 ; Harrington v. Allen,
48 Mississippi, 493 ; The Matter
of Lineman, 32 Maryland, 225 ;
Myers v. Ross, 3 Head. 60 ; George
V. Kent, 7 Allen, 16 ; Lint-man's
Est., 22 Maryland, 325 ; Mass.
Manuf. Co. v. Emmons, 47 Mis-
souri, 304 ; White v. Foster, 102
Mass. 305 ; Bayliss v. Young, 51
Illinois, 127 ; Gilbert v. Jess, 31
Wisconsin, 110; Conouer v. Van
Mater, 3 C. E. Green, 481 ; Baker
V. Mather, 25 Michigan, 31 ; Myers
V. Boss, 3 Head. 59 ; Nices' Appeal.
So, where judgments have priority
by statute over unregistered deeds
and mortgages, a failure to record
the instrument may be supplied by

38

BONA FIDE PURCHASERS.

notice to the creditor before judg-
ment, though not afterwards ;
Ayres v. Depaey, 2t Texas, 593 ;
Mellon's Appeal, 8 Casey, 121 ;
Brittain's Appeal, 9 Wright, 112;
Hoy V. Allen, 21 Iowa, 201.

These cases proceed on the
ground that one who buys, know-
ing that the vendor has sold or
mortgaged the property to a third
person, is particeps criminis ;
Gihhes v. Gohb, 1 Eichardson's
Bq. 54; Jackson v. Burgott, 10
Johnson, 451, 459 ; Hamilton v.
Nutt, 34 Conn. 501 ; Beal v. Oor-
don, 55 Maine, 482. Moreover, the
object of registration, which is to
afford notice, is attained if the pur-
chaser receives the requisite infor-
mation by other means. The doc-
trine applies, although the statute
provides unqualifiedly that an un-
registered conveyance shall be
void against subsequent purcha-
sers, because the Legislature will
not be presumed to have designed
that any one shall retain a title
which has been fraudulently ac-
quired ; Oibbes v. Cobb ; Grim-
stone V. Carter, 6 Paige ; Van
Senssalaer v. Glark, 11 Wend. 25 ;
and as legal and equitable jurisdic-
tion are concurrent as it regards
fraud, so relief may be had in a
legal tribunal ; Jackson v. Tuttle,
9 Cowen, 233 ; 6 Wend. 213 ; Jack-
son V. Burgott ; Van Eenssalaer
V. Clark ; although this conclu-
sion is questionable where the
notice is merely constructive.

It was held at one period, in New
York, in accordance with the earlier
English decisions, that one who
buys in ignorance of an unrecorded
deed, will not be affected by the

constructive notice which does not
amount to knowledge, or indicate
the existence of conscious fraud ;
Day V. Dunham; Jackson v. Van
Valkenhurg, 8 Cowen, 262 ; Hine
V. Dodd, 2 Atkyns, 215, ante ;
Doyle V. Teas, 4 Scammon, 202,
245 ; and the authorities in Mary-
land and Ohio, incline in the same
direction ; Alderson v. Ames, 6
Maryland, 52 ; The Oirard Ins.
Co. V. The U. S. Ins. Co., 3
Maryland Ch. 380 ; 11 Maryland,
511 ; Woodworth v. Paige, 5 Ohio
N. S. 16. In Dey V. i)?*n7i,am, Chan-
cellor Kent said, that the notice
which puts a party upon inquiry,
is not sufficient to break in upon
the policy and express pro-
visions of the recording acts,
and the same rule was laid down
in Jackson v. Van Valkenburg.
Agreeably to this view, the sub-
sequent purchaser will not be
postponed, unless the notice is so
clearly proved as to show that his
conduct was fraudulent in accept-
ing a conveyance " in prejudice to
the known title of another," ante.
But it is now established in New
York, as it would appear to be in
England, that any notice which
would be effectual in the case of an
antecedent equity, will supply the
want of registration in that of a
deed; ante, Whitheadv. Boulnois,
1 Young & Collier, 303 ; Tuttle v.
Jackson, 6 Wend. 213 ; Jackson v.
Post, 15 Wend. 438, 588 ; Grim-
stone V. Carter, 3 Paige, 421 ;
Williamson v. Brown, 15 New
York, 354, 358; Boyle v. Teas,
4 Scammon, 202, 250. The same
doctrine prevails in Pennsylvania;
Jacques v. Weeks, 1 Watts, 261 ;

BASSET V. NOSWORTIIT.

89

and generally in the United States,
where the law has not been changed
by statute ; Perkins v. Swanky 43
Mississippi, 349 ; Harhert v. Han-
rick, 16 Alabama, 599 ; Center v.
The Bank, 22 Id. 744 ; Hewes v.
Wiswell, 8 Maine, 94 ; Clark v.
Bosworth, 51 Maine, 520; War-
ren V. Richmond, 53 Illinois,
32. A lis pendens and a recital in
a mortgage, through which the de-
fendant in a judgment derived
title, were accordingly, in Center
V. The Bank, held to give the
judgment creditor constructive no-
tice of an unrecorded deed.

The revised statutes of Massa-
chusetts provide " that no unre-
corded conveyance of real estate
shall be valid except against the
grantor and persons having actual
notice thereof," and the statutes of
California, Maine and Vermont
and Maryland are to the same
effect.

The constructive notice arising
from possession, is not sufficient
under these statutes, although it^
may, when coupled with other cir-
cumstances, present a case of ac-
tual notice ; Pomeroy v. Stevens,
1 1 Metcalf, 244 ; Mara v. Pierce,
9 Gray, 306 ; Messick v. Sunder-
land, 6 California, 315 ; Stafford
V. Lick, T Id. 489 ; Bird v. Denni-
son, lb. 305. But actual notice in
this sense does not mean notifica-
tion, and may be inferred from the
purchaser's admissions, from a re-
cital in the deed, or from any evi-
dence tending to show knowledge
Maupin y., Emmons, 47 Missouri,
304 ; Lyman's Est. 22 Maryland,
325 ; White v. Foster, 102 Mass-
375 ; George v. Kent, 7 Allen, 16.

In Oeorge v. Kent, part of a tract
of land, covered by a mortgage,
was conveyed to one Patrick Mur-
phy, by an unregistered deed, and
the grantor subsequently conveyed
another portion of the same tract
to the plaintiff, by a deed describ-
ing his lot as " bounded on the
west by land of Patrick Murphy,"
and it was held that this descrip-
tion was notice of the unregistered
deed, and that Murphy had acquired
a prior right entitling him to
throw the burden on the mort-
gagor, and consequently on the
plaintiff. Chapman, J., said : " It
is not requisite that notice should
be by actual exhibition of the un-
registered deed. Intelligible in-
formation of a fact, either verbally,
or in writing, and coming from a
source which a party ought to give
heed to, is generally considered as

notice of it Tl^e

description of the land in the plain-
tiflf's deed was equivalent to an
affirmation by the grantor, that the
land lying west of it was owned by
Patrick Murphy, by virtue of some
proper instrument of conveyance.
He knew from this information,
that Murphy's title was prior to
his own. Having such a title,
Murphy is not bound to contribute
to the redemption of the mort-
gage."

It results from what has been
said, that the position of a grantee
in an unregistered deed is similar
fx> that of the owner of an equita-
ble estate or interest. In some of
the States there is this difference,
that as between two successive
grantees of the same premises, he
will have precedence whose deed

40

BONA FIDE PURCHASERS.

s first registered ; Reed v. Kemp,
16 Illinois, 445 ; Potts v. Anstatt,

4 W. & S. 307 ; Ehner v. Gonndie,

5 Id. 49; Youngblood v. Vastrue,
46 Missouri, 239 ; Goundie v. The
Northampton Water Co., T Barr,
233 ; Souder v. Morrow, 9 Casey,
85 ; Lightner v. llooney, i 0 Watts,
407. Although the second grantee
may have given value in good faith,
his title is incomplete until he
registers his deed, and maj^ be de-
feated by tlie registration of tlie
prior conve3^auce ; The Penna.
Salt Go. V. Niel, 4 P. F. Smith, 9.
But this course of decision rests
on the wording of the statutes
of these States rather than on
general principles, and when the
terms of the act are general,
that unregistered deeds shall be
void against subsequent pur-
chasers, such a purchaser will ac-
quire a title whether he does or
does not recoid his deed ; Steele v.
Spence, I Peters, 552, post. It is
the equity arising from the pay-
ment of value, under the false im-
pression occasioned by the neglect
of the prior purchaser, which the
policy that dictated the registry
acts should protect ; see Wheaton
V. Dyer, 15 Conn. SOY.

It is well settled, that a pur-
chase with notice of an unrecorded
deed or mortgage from a purchaser
without notice, will confer a valid
title; Trull v. Bigelow, 16 Mass.
406 ; Boynton v. Rees, 8 Pick. 329 ;
Molt V. Clark, 9 Barr, 399 ; Lacey
V. Wilson, 4 Munford, 313 ; Web-
ster V. Van Steinbergh, 46 Barb.
211; and so of a purchase with-
out notice from a purchaser with
notice ; Jackson v. Given, 8 John-

son, 137 ; Jacksonw. Valkenburgh,
8 Cowan, 260 ; Varick v. Briggs,
6 Paige, 323 ; Fallass v. Pierce,
30 Wisconsin, 443 ; Knox v. Sillo-
way, 10 Maine, 221 ; Connecticut
V. Bradish, 14 Mass. 296 ; Mallory
v. Stodder, 6 Alabama, 801 ; Tru-
luck V. Peeples, 3 Kelly, 446. This
is not less true under the record-
ing acts than where the prior right
is an equity arising from an act in
pais or a parol contract. But as
this rule is designed in furtherance
of good faith and fair dealing, it
does not apply where land which
has been fraudulently acquired is
sold to a bona fide purchaser, and
reconveyed by him to the vendor,
aud the latter will then be as much
bmnd to make restitution to the
rightful owner as he was before the
sale ; Shult v. Large, 6 Barb. 373.
So a purchaser with actual or con-
structive notice cannot stand on
the validity of the title as deduced
of record, if the vendor bought
with notice, although this was
unknown to the purchaser, and he
had every reason to rely on the
good faith of Ids immediate ven-
dor. It has been held to follow
that if the same premises are
conveyed successively to different
persons, and the first conveyance
is registered, although not until
after the registration of the second,
a subsequent purchaser from the
second grantee will run the risk of
his good faith, and may be post-
poned by proof that he knew,
or ought to have known of the
prior grant ; Mahoney^ v. Middle-
ton, 41 California, 48 ; Jackson v.
Post, 9 Cowen, 120; 15 Wend.
588; Van Rensselaer y . Clark, 17

BASSET V. NOSWORTHT.

41

Wend. 25. In Van Rensselaer v.
Clark, land whicli had been con-
veyed to Van Rensselaer was again
conveyed to Schuyler. The latter
had actual notice, but was the first
to record his deed, and Claik rely-
ing on this, bought from him after
the registration of the deed to
Van Rensselaer. The Court was
of opinion that the registry of this
deed was notice, although Schuy-
ler's deed preceded it on the record,
and that Clark was therefore to be
regarded as standing in Schuyler's
shoes, and could not hold the land
against Van Rensselaer. Cowen,
J., said, " It has been contended
that Clark having bought of
Schuyler on the faith of finding
that his deed was first recorded,
should not be compelled to look
further, or run the risk of actual
notice to Schuyler. In Jackson
V. Post, 15 Wend. 588, it was held
that the registry of a deed is notice
to every one from the time of its
being recorded, and even to a pur-
chaser standing a second or farther
remove from the common source
of title. The same decision estab-
lished that a purchaser, with such
notice, takes, at the peril of his
immediate grantor's title being
impeached by actual notice, though
his deed was recorded previous to
the adverse one." In like manner
the registration of a deed after
judgment has been obtained against
the grantor, is constinictive notice
to one who buys subsequently at
a sheriff's sale under a writ issued
on the judgment; Potter v. if'-
Bowell, 43 Missouri, 93 ; Stilwell
V. M'Bonald, 39 Id. 288. It
would, nevertheless, appear that

nothing should operate as notice,
which does not indicate the exist-
ence of a better right than that
which the vendor apparentl}^ has,
and professes to be able to convey.
This cannot be said of a deed
which, though prior in date, is sub-
sequent as regards the time of
registry. One who buys under
these circumstances should not be
affected by a latent fact, which is
not brought to his knowledge. A
party whose laches have con-
tributed to mislead a purchaser,
is not entitled to the favor shown
to diligence. See Uly v. Wilcox,
20 Wisconsin, 523 ; Williams v.
Beard, 1 South Carolina, 309. The
better opinion, consequently, seems
to be that it is not requisite to
bring the search against an ante-
cedent grantor further down than
the registry of the deed, by which
he conveyed to the vendor, and
that the purchaser, will not, there-
fore, be charged constructively
with notice of a deed, which
though executed before, was not
registered till after the sale ; Ely
V. Wilcox ; Trull v. Bigelow, 16
Mass. 418; Somes v. Brewer, 2
Pick. 184; Bay v. Clark, 25 Ver-
mont, 402 ; The State of Connecti-
cut V. Bradish, 14 Mass. 291.
" When," said Jackson, J., in the
case last cited, "a purchaser is ex-
amining his title in the registry of
deeds, and finds a good convey-
ance to his grantor, he is not ex-
expected to look further. This
case, it is true, presents the ques-
tion in a very strong point of view
for the demandants, as Bradish
had only to look to the next page
to discover the prior conveyance

42

BONA FIBE PURCHASERS.

to them. But if he is required to
look one daj', or one page beyond
that which exhibits the title of his
grantor, it will be impossible to
say where the inquiry shall stop."
In Day v. Clark, 25 Vt. 402,
the Court held that if registering
a deed, after the registration of a
second deed from the same grantor,
was notice to a purchaser from the
grantee in the second deed, that the
premises had been conveyed to a
third person before the execution
of the conveyance to his immediate
vendor, it did not inform him that
the latter had such notice. Whether
he had or not, was consequently
immaterial to the purchaser, who
was entitled to rely on the priority
of registration, as conclusive of the
question of right. This reasoning
was cited and approved in Ely v.
Wilcox, 20 Wisconsin, 530. It
would, nevertheless, appear, that if
the purchaser is put on inquiry, as
he necessarily is, if he has no.
tice of the prior deed, he should
apply to the grantee in the first
deed, and ascertain from him
whether he gave notice to the
second grantee. The true ground
seems to be, that when the regis-
tration of a deed is not from any
cause notice to a grantor, it will
not be more effectual as it regards
those claiming under him as credi-
tors or purchasers.

A fraudulent grant is voidable,
and not void, and cannot be set aside
after the property has passed into
the hands of an innocent purchaser.
This is equally true whether the
fraud is practiced on the grantor,
or collusively with him, to the in-
jury of third persons : Ledyard v.

Butler, 9 Paige, 152; Somes v.
Brewer, 2 Pick. '184; Fletcher v.
Peck, 6 Cranch. 133; 1 Smith's
Leading Cases, 355. pos<, Y Am. ed. ;
Collins V. Heath, 34 Georgia, 443 ;
Price V. Junkin, 4 Watts, 85 ; Fet-
terman v. Murphy, lb. 424 ; Poor
V. Woodbury, 25 Vermont, 236 ;
Hari V. The Bank, 33 Id. 252;
Mateer v. Hissim, 3 Penna. 160.
Such is the well settled rule at com-
mon law, and such the uniform con-
struction of the statutes of 13 &
21 Elizabeth, invalidating convey-
ances made to defraud creditors
and purchasers ; Thompson v. Lee,
3 W. & S. 479. It was held at one
period that as the 13 Elizabeth de-
clares that convej'ances to defraud
creditors shall be utterly void, no
title vests in the fraudulent grantee,
and he cannot give what he has not
received ; Hope v. Henderson, 3
Devereux, 12,16; PrestonY. Crow-
foot, 1 Conn. 521. The law was so
held by Chancellor Kent in Roberts
V. Anderson, 3 Johnson, Ch. 3'?1 ;
18 Johnson, 516. But the decree
was reversed on error, Spencer,
C. J., saying that an act which was
merely void, might be treated as
a nullitj' by the doer, or by third
persons who had no interest in
the controversj'. Applying this
test to the case in hand, it was
plain that a conveyance in fraud
of creditors, conferred a title which
was valid as between the parties
and against every one who was
not aggrieved. It followed that
a bill filed after the property had
been conveyed for value without
notice, came too late. The law is
now established on this basis
throughout the Union. Boyce v.

BASSET V. NOSWORTHT.

43

Waller^ 2 B. Monroe, 91 ; Led-
yard v. Butler, 9 Paige, 132, and
Frazer v. Western, 1 Barb. Ch.
220 ; Wood v. Marvin, 1 Sumner,
507 ; Eowley v. Bigelow, 12 Pick.
307 ; Hood v. Fahnestock, 8 Watts,
489 ; Erskine v. Decker, 89 Maine,
467 ; Sydney v. Roberts, 13 Texas,
598; Reed v. Smith, 14 Alabama,
38 ; Coleman v. Goche, 6 Ran-
dolph, 618 ; 1 Amer. Lead. Cases
58, 5th ed.

In like manner, a vendor who is
induced to sell by fraud, cannot
reclaim the property from one who
has purchased it in good faith
from the fraudulent vendee.
White V. Garden, 10 C. B. 919
Rowley v. Bigelow, 12 Pick. 387
Root v. French, 13 Wend. 570
Hears v. Waples, 3 Houston, 581
The Chicago Dock Co. v. Foster, 48
Illinois, 507 ; Williams v. Russell,
39 Conn. 406 ; see 1 Smith's Lead-
ing Cases, 1203, 7 Am. ed. ; al-
though the principle does not ap-
ply while the vendor remains in
possession, nor until the goods are
actually delivered by him, nor
where possession is obtained surrep-
titiously without his knowledge or
consent; Dean v. Gates, 22 Ohio,
N. S. 388 ; Barnard v. Campbell,
68 Barb. 287. It has also been
held that where the fraud consists
in a false allegation that the buyer
is acting on behalf of a third per-
son, who has given no such au-
thority, the contract is merely void,
and a subsequent bona fide pur-
chaser will not acquire a title ;
Kingsford v. May, 1 Hurlstone &
Norman, 503 ; Decan v. Shipper,
11 Casey, 239.

The principle is the same whether

real or personal estate is in ques-
tion, and was applied in Taylor v.
Gilt, 10 Barr, 428, in favor of one
who had given value for a bond
on a faith of a written assign-
ment by the obligee, which the
latter sought to invalidate on
the ground of fraud. The price
must, nevertheless, be adequate
if not full ; it must have been ac-
tually paid before notice ; and there
must be nothing in the transacbion
to indicate that the purchaser was
cognizant of the fraud ; Buffington
v. Gerrish, 15 Mass. 156 ; Hodgden
V. Hubbard, 18 Vermont, 504 ;
Field V. Stearns,i2 Id. 506 ; Poor
V. Woodburn, 25 Id. 235 ; Jackson
V. Somerville, 1 Harris, 259
Roberts v. Dillon, 3 Daly, 50
Robinson v. Dauchy, 3 Barb. 20
Joslin V. Cower, 60 Id. 48 ; Risen
V. Knapp, 1 Dillon, 201.

In general, when the legal and
equitable title meet in the same
hand, the former ceases to exist,
and will not be revived in favor of
a volunteer. If the legal interest in
land descend ex parte materna, and
the equitable interest ex parte pa-
terna, tlie equitable estate will
merge in the legal, and both go in
the line through which the legal
estate descended ; Goodright v.
Wells, Douglas, 741 ; 3 Vesey, 339 ;
Wade V. Fdget, 1 Brown, Ch. 363 ;
James v. Morey, 2 Cowen, 246,
259, 313, 318 ; Doty v. Russell, 5
Wend. 129. The equitable estate
will not be kept alive in favor of
the heirs on the maternal side, for
the sake of preventing those on the
paternal side from taking by virtue
of their legal and therefore supe-
rior title. " The moment," said

44

BONA FIDE PURCHASERS.

Lord Mansfield, " both meet in the
same person, there is an end of
the trust. He has the legal inter-
est and all the profits by his title.
One cannot be a trustee for him-
self." It follows that when the
holder of an equity executes a
conveyance, or suffers the lien of
a judgment, and afterwards ac-
quires the legal title, a subsequent
purchaser from him for value and
without notice should be pre-
ferred to the grantee or judgment
creditor ; and the case is still
stronger if the purchaser has the re-
cord on his side as against an unre-
corded equity. Such a controversy
may arise where a judgment is
entered against a vendee under arti-
cles of agreement, who subse-
quently obtains a deed, records it,
and mortgages the premises to a
third person who is ignorant of
the antecedent equity. Under these
circumstances, the mortgagee ob-
viously has the better right ; first,
as a bo)ia fide purchaser, and next,
as holder of the legal title, which
being deduced of record, should
prevail against any right which
the record does not disclose.

A different view prevails in
Pennsylvania where the acquisition
of the legal title bj"^ him who has
the equitable right, affects it with
the liens which bound the equity,
contrary to tlie general doctrine of
that State, that judgments shall
not bind after acquired land ;
Lynch v. Dearth, 2 Penna. 101 ;
Foster^ s Appeal, 3 Barr, ^9 ; Lyon
V. WGaffney, 4 Id. 126 ; Camp-
bell's Appeal, 12 Casey, 24T. In
Lynch v. Dearth, & judgment was
entered against a purchaser under

a written contract. The vendor
then gave him a deed which was
placed of record, and the premises
were mortgaged the same day to a
third person who had advanced
the purchase-money. The court
held that the judgment had pri-
ority over the mortgage.

The claims of a judgment credi-
tor do not rise as high as those of
a purchaser, and it is a logical in-
ference from these decisions, that
the grantee of an equity will be
preferred to one who gives value
in good faith after the grantor has
acquired the legal title. Such a
conclusion is obviously indefensi-
ble ; and would hardly be adopted
by any tribunal that was not
bound by the authority of Lynch
V. Dearth. One who carries the
search for incumbrances back to
the period at which the estate
vested of record in the vendor,
need look no further as it regards
him, and should be safe in buying,
if the record shows that the title
came to the vendor's hands with-
out break or flaw, and that
nothing was done, or suffered by
him subsequently, that could im-
pair the title. To affect such a
purchaser with a prior unrecorded
equity, it should at least appear
that it was brought home to him
by notice, ante.

It has been held in some in-
stances that a purchase for value
and without notice cannot be
pleaded as against the legal title ;
Snelgrove v. Snelgrove, 4 Des-
saussure, 274 ; Jones v. Zollicof-
fer, 2 Taylor, 214 ; Blake v. Hey-
ward, 1 Bailey's Equitj', 208 ;
Larrow v. Beam, 10 Ohio, 148-

BASSET V. NOSWOETHT.

45

Such an allegation is irrelevant in
a court of law, and we have seen
that it is not a ground for equita-
ble relief. But the better opinion
seems to be that it is always
pleadable in equity as a defence,
ante, 15. To justify the interven-
tion of a chancellor, it must appear
not only that the complainant has
a legal right, but that the defend-
ant is under a moral obligation
to concede what the bill requires ;
Beekman v. Frost, 18 Johnson,
544. And as this is equally true,
whether the complainant's title is
legal or equitable, so a plea that
the defendant is a l)ona fide pur-
chaser is good in either instance.
See The Union Canal Co. v.
Young, 1 Wharton, 431. It was
indeed said in Peahody v. Fenion,
3 Barb. Ch. 451, 464, that to pro-
tect a purchaser, he must have ac-
quired tlie legal title as well as
the equitable right. Taken llter-
all}', this would imply that he is
not entitled to protection where
the legal title is in the complain-
ant. But it will appear on exami-
nation that what the chancellor
meant was that an agreement to
buy is not sufHcient, and that the
sale must have been consummated
by the transfer of such title as the
vendor had to give. " The princi-
ple," said Lord Crauworth, in
Colyer v. Finch, 5 House of
Lords Cases, 906, 921, " on which
the court protects a purchaser for
valuable consideration without no-
tice, is wholly regardless of what
estate he has. It may be that he
has not the legal estate, but that
will be quite unimportant as to a
court of equity interfering or re-

fusing to interfere. His equity
depends on this, that he stands
equitably in at least as favorable
a position as his opponent, and
therefore, the court will not in-
terfere against him. In The Union
Canal Co. v. Young, Rogers,
J., said that whatever the rule
might be " elsewhere, a purchase
for value without notice was a
good defence in Pennsylvania
under the recording acts, as well
against a legal as an equitable
title."

The rule that a purchase for
value is a good equitable defence,
is, nevertheless, subject to certain
qualifications. Where the titles of
both parties are merely equitable,
and there has been no laches or
neglect on either side, the first in
point of time will prevail, and a
plea that the subsequent purchaser
gave value in good faith is invalid,
because chancery is the only tri-
bunal that can take cognizance,
and if it remained neutral there
would be a denial of justice ;
Ji dams' Equity ; Jones v. Jones, 8
Simons, 633. See Ballards v. J/'-
Carty, 10 Watts, 63 ; Newton v.
Newton, 6 Law R. Eq. 141 ; 4 Law
R. Cb. Appeals, 144, ante, 20.

In like manner, a court of equity
may direct a sale or foreclosure at
the instance of a mortgagee, al-
though the premises have been
sold without notice of the mort-
gage. Such an order does not de-
prive the purchaser of any legal or
equitable right, and is merely that
he shall redeem at once, or be for-
ever barred; Colyer v. Finch, 19
Beavan, 510 ; 5 House of Lords
Cases, 906, 921. The legal title

46

BONA FIDE PURCHASERS.

to the premises is in the mortga-
gee, and if the decree incidentally
precludes the terre tenant, this is
because there are no other means
of rendering the land available for
satisfaction of tlie debt.

A plea that the defendant is a
purchaser for value and without
notice, has no application as be-
tween legal titles, or in a court of
law. A defective title does not
become valid by being transferred ;
JRuckman v. Decker, 8 C. E. Green,
283. What it was in the hands of
the grantor, it will be in those of
the grantee. Nemo plus juris ad
alium tran sf err e potest quam ipse
habet ; Coke Lit. 309, b. It is im-
material that the grantee gives
value in the belief that he is ac-
quiring a good title. This is true
even when the flaw is latent, and
could not be discovered by an at-
tentive examination. The fraudu-
lent alteration of a deed by the
grantee may consequently pre-
clude a subsequent bona fide pur-
chaser, although the change is
made by filling up a blank, and
does not appear on inspection ;
Arrison v. Harmistead, 2 Barr,
3 91, 19'7. Rogers, J., said that
" where the vendor has nothing to
convey, nothing can be acquired
by the vendee. One who bought
from the grantee, in a voidable
deed, might be in a better position
than a vendor. But the principle
did not apply to a sale by a vendor
who had no title, or, what came to
the same thing, who had avoided
the title by his own wrong. A
deed acquired surreptitiously with-
out, or altered after, delivery, was
invalid even in the hands of a bona

fide purchaser; Van Amrage v.
Miller, 4 Wheaton, 382. This was
true of negotiable instruments, and
applied a fortiori where land was
concerned ; Van Amrage v. Miller ;
Master v. Miller, 4 Term. 320 ; 2
-H. Bl. 140; Waring v. Smith, 2
Barb. Ch. 133 ; Wade v. Withing-
ton, 1 Allen, 561 ; 1 Smith's Lead.
Cas. 1280, Y Amer. edition."

In like manner, the purchaser of
an equitable estate must stand or
fall by the right of the vendor, and
cannot rely on his having given
value in good faith, as a reason
why he should be preferred to a
prior grantee ; Boons v. Chilles, 10
Peters, ]'77; Kramer v. Arthurs,
7 Barr, 65; 24 Mississippi, 208;
Pensonneau v Blakely, 14 Illinois,
15 ; Daniel v. Hollingshead, 16
Georgia, 196. His conscience may
be clear, but he is necessarily sub-
ject to the rule that one who buys
from a vendor who has parted with
his title, can take notliing by the
deed ; Neivton v. Newton, 6 Law R.
Eq. 141 ; ante, 20. In the words of
Vice Chancellor Shadwell, equity
follows the law, and when the le-
gal estate is outstanding, convey-
ances of the equitable interest, are
considered and treated, in a court
of equity, in the same manner as
conveyances of the legal estate are
considered and treated at law ;
Jones V. Jones, 8 Simons, 633 ;
Sumner v. Waugh, 56 Illinois, 531.
A plea that the defendant is a bona
fide purchaser must consequently
aver that he had good reason to
believe that the legal estate would
pass by the deed ; 'Boone v.
Chilles, 171, 210. As between
merely equitable claimants, each

BASSKT V. NOSWORTHT.

47

having equal equity with the other,
" he who hath precedency in point
of time, hath the advantage in
point of right; " Shiras v. Craig,
7 Cranch, 48. This has sometimes
been laid down too broadly, and in
a way to convey the idea that the
purchaser of an equity is affected
with notice of every act tending
to impair the title, done or suffered
by the vendor ; Chew v. Barnet,
11 S. & R. 389 ; Serjeant v. Inger-
soll, 7 Barr, 340 ; 3 Harris, 343 ;
Goldsborough v. Turner, 67 North
Carolina, 403. See Bhines v.
Baird, 5 Wright, 256, 265. Prop-
erly understood, the rule is simply
this, that the assignment of an
equity transfers the vendor's inter-
est, and can transfer no more ; but
the assignee is not, on that ac-
count, less a bona fide purchaser,
or precluded from taking any
legitimate step to perfect his title ;
Sumner v. Waugh, 56 Illinois,
539 ; Filzimmons v. Ogden, 7
Cranch, 218 ; Peacock v. Burt,
Appendix to Coote on Mortgages.
The purchaser of an equitable
estate or interest may consequentlj'
procure a conveyance of the legal
title for the purpose, and with the
effect of defeating a prior equity,
of which he was ignorant at the
time of buying, although it has
been brought to his knowledge
since the sale; Adams' Equity,
159, 160 ; Butler's note. Coke Lit.
290 ; Fitzimmons v. Ogden, 7
Cranch, 1, 18; Zollman v. Moore,
21 Grattan, 313 ; Cavipbell v.
Brackenridge, 8 Blackford, 471;
GiUer v. Tremble, 14 Ohio, 423 ;
Osborn v. Carr, 12 Conn. 195, 208 ;
Siter V. M'Clenachan, 2 Grattan,

280, 283 ; Baggarly v. Gaither, 2
Jones' Eq. 80 ; Carroll v. Johnston,
lb. 129. Such at least is the rule,
where the purchaser buys on the
faith of a pretended legal title, and
the vendor's interest proves to be
merely equitable. Hence it is that
a mortgagee of an equity of re-
demption maj' by taking an assign-
ment of the legal title from the
first mortgagee, exclude an inter-
vening incumbrancer ; Brace v.
Marlborough, 2 Peere Williams,
491, vol. 1, 841; Belchierv. Butler,
1 Eden, 523 ; and although this doc-
trine does not apply in the United
States under the recording acts, it
is, nevertheless, sound in principle.
Accordingly, if the purchaser of an
equitable estate or interest can ac-
quire an outstanding legal title,
he will be secure not only against
any secret act or matter, whereby
the vendor's right was impaired,
but although the vendor had no
right, or a determinable right which
has expired ; Willoughby v. Wil-
loughby, 1 Term, 763 ; Jones v.
Bowles, 3 Mylne & Keen, 581;
Cottrel V. Hughes, 15 C. B. 532,
560; Willoughby v. Willoughby, 7
Term, 763, 770. A purchase from
a cestui que trust, fortified by a
conveyance from the trustee, is
consequently valid, notwithstand-
ing a prior grant by the cestui que
trust in which the trustee did not
join ; See Flagg v. Mann, 2 Sum-
ner, 486, 560 ; and it is immaterial
that the purchaser knew that the
cestui que trust had not the legal es-
tate, if he did not know that he had
already parted with his interest.
In like manner, one who buys an
equity and records the deed, will

48

BONA FIDE PURCHASERS.

be preferred to a prior purchaser,
■whose deed is not duly acknowl-
edged and recorded ; Alexander v.
Ames, 6 Maryland, 52; The Gene-
ral Ins. Go. V. The U. S. Tns. Co.,
10 Id. 51Y ; Bellas v. M'Carty, 10
Watts, 29 ; see BusselVs Appeal,
.S Harris, 319. So the assignee of
a chose in action or other equitable
right may get in the legal title to
protect his equity against a prior
assignment ; Fitzimmons v. Ogden.
In Carroll v. Johnston, 2 Jones'
Eq. 120, the bill alleged that one
Isaac Roberts had entered into a
■written agreement for the sale of
land to Strong, ■who subsequently
conveyed all his right, title and
interest to the plaintiff, Carroll.
It ■was further charged, that the
defendants with full notice of the
agreement, had obtained a deed
from Robei'ts. The defendants an-
swered that they had agreed in good
faith to purchase the land from
Strong for a valuable considera-
tion, consisting in part of a debt
due from him, and as to the residue
of future advances, which were for
the greater part made. They were
subsequently informed of the deed
from Roberts to Carroll, and ob-
tained a conveyance of the legal
estate from Roberts to protect
themselves. It was held that they
had the better right. " The plaintiffs
by their deed acquired nothing but
an equitable riglit, the legal title
bein^ in Roberts. By their agree-
ment with Strong, made while in
ignorance of the equity of plain-
tiffs, tlie defendants acquired an
equitable interest in the propertj'
in dispute, quite equal to that of
the plaintiffs. In Baggarly v.

Gaither, 2 Jones' Eq. Rep. 80, it is
declared, that a party so situated
may protect himself bj"^ procuring
the legal title ; that the latter pur-
chaser or incumbrancer on pay-
ment of his money becomes an
honest claimant in equitj-, and is
entitled, if he can, to protect his
claim; Adams' Eq. 330. That case
decides the present ; the defendants
had a right to clothe themselves
with the legal title. The equities
being equal, the court will not in-
terfere." It was held in like man-
ner in Leach v. Ansbacher, 5 P.
F. Smith, 85, that one who bought
an equitable estate in good faith,
and paid for it before notice, might i
acquire the legal title after notice. ■•
It is indeed said in GrimstoneY.
Carter, 3 Paige, 421, 43"?, and re-
peated in Fash v. Ravesies, 32
Alabama, 451, that a chancellor
will not suffer one having a subse-
quent equity to protect himself by
obtaining a conveyance of the legal
title after he has either actual or
constructive notice of the prior
equit}' ; Tourville v. Nash, 3 Peere
Williams, 301; Moore v. llayhew.
Freeman Ch. 115 This doctrine is
contrary to the rule laid down in
Belchier v. Butler, 1 Eden, 533,and
the point actually decided was,
" that to enable a party to defend
himself as a ftcmo^de purchaser, he
must aver in his plea, or state in
his answer, not only that there was
an equal equity in himself b}' reason
of his having paid the purchase
money, but that he had also clothed
his equity with the legal title before
he had notice of the prior equity.''
It is no doubt true, that notice
while the transaction is still in-

BASSET V. NOSWORTHY.

49

complete, "will preclude the right
to obtain a conveyance, although
the purchaser will still be protected
to the extent of his actual pay-
ments, but it does npt follow, that
one who has paid in full and re-
ceived a conveyance, cannot pro-
tect himself against an equity of
which he has no notice until after
the execution of the deed.

In Ingersoll v. Sargeant, 1 Barr,
340 ; 3 Harris, 343, a fee farm
or ground rent was conveyed
in trust for Reed, who was the
owner of the land. The trust did
not appear in the deed, and was
created to prevent the rent from
'merging. Reed subsequently con-
veyed the land to Ingersoll, and
juovenanted to extinguish the rent.
He then sold the rent to the plain-
itiff, who paid him the price and
took a deed from Sargeant. It was
held that the plaintiff " acquired
an equitable ownership only, be-
cause the legal title was outstand-
ing in a trustee, and it is a ruda-
mental principle, that one who
purchases an imperfect or incho-
ate title must stand or fall by the
case ol his vendor. The fact that
he was dealing with one who had
not the legal title, was a circum-
stance to arouse suspicion and
prompt inquir}^ If he liad de-
manded the reason why the rent
was conveyed in trust, and not di-
rectly to Reed, he would have been
told that Reed had sold the
ground, clear of incumbrance, to
Ingersoll, and covenanted to ex-
tinguish the rent. However igno-
rant in fact, he must consequently
be regarded as legally cognizant,
and \ could not set up the legal
VOL. 11 4

title against Ingersoll's prior and
superior equity."

This argument seems to be erro-
neous, first, in assuming that the
buyer of an equity is ipso facto
bound to inquire of the vendor
for defects which do not appear in
the line of his title ; and next, that
such an inquiry will lead to a dis-
covery of the truth. In selling a
ground rent which he had agreed
to extinguish. Reed committed a
breach of failh. If the plaintiff
had asked him why the rent was
placed in trust, he would have
told as much as was consistent
with the accomplishment of his
purpose, but he would have dis-
closed no more. As between the
plaintiff and Ingersoll, who were
both innocent purchasers, the pref-
erence was due to the plaintiff, who
had perfected his title by obtain-
ing a convej'ance from the trustee,
while Ingersoll was content to
take a promise which the vendor
might or might not fulfil.

The doctrine that a purchaser
from a cestui que trust is affected
with notice of every defect in the
vendor's title, is not sustained by
the authorities. The utmost that
can be said where the legal estate
is outstanding in the hands of a
trustee, is that the purchaser
should inquire of him before buy-
ing ; Vaitier v. Hinds, ^ Peters,
252, 271. If such an obligation
exists, the presumption is that it
was fulfilled, unless some evi-
dence is adduced to the contrary.
The burden is always on him
who alleges notice to substantiate
the averment by proof. But it
cannot be requisite to inquire of

BONA FIDE PURCHASERS.

the vendor, or of any one who joins
with him in making title, whether
he is committing a fraud or breach
of trust by disposing of that which
belongs to a third person, or has
been already sold. One who is
engaged in a fraudulent design,
seldom hesitates at falsehood.
The law exacts nothing vain or
useless. To make inquiry a duty,
the circumstances must be such that
it will lead to knowledge ; Wilson
Y.M'Cullough, 11 Harris, 440, 445.
Hence, no one need ask for infor-
mation where there are no means
of testing the accuracy of the re-
plj', and no security that it will
be free from error. Possession is
notice, because the tenant must
abide by his answers to the inter-
rogatories of one who is about to
hnj. The same remark applies to
a declaration by a debtor that
there is no offset, and generally to
every statement by a party in in-
terest of a nature to influence the
conduct of a purchaser. But no
such guarantee exists where a ven-
dor is asked to disclose a fact which
• will defeat the sale by showing
that he has no title to convey. See
Wilson V. M'Cullough, 11 Harris,
440, 445.

We have seen that where the
right on either side is equitable,
and the case falls within the ex-
clusive jurisdiction of a chancellor,
he will afford relief against a bona
fide purchaser in order to prevent
a failure of justice, a?7te, 18. Under
these circumstances, a court of
equity adopts the rule that, other
things being equal, he who is first
in point of time, has the better
right. The assignment of a chose

in action is within this principle,
as conferring no title that can be
recognized or enforced in a merely
legal tribunal. Hence, the assig-
nee is not entitled to the protection
which equitj' affords to purchasers,
and must not only stand or fall by
the vendor's title, but cannot rely
on the purchase as a defence to a
bill for relief and discovery by a
prior assignee ; Downer v. The
Bank, 39 Vermont, 25, 32; Pea-
cock V. Rhodes, 1 Douglas, 636.
This is, however, only true where
the interest on either side is merely
equitable, for if the subsequent
assignee has obtained the legal
title, or a legal right or superiority
of any kind, although subsequent
to the assignment, a chancellor
will not interfere for the purpose
of taking it away; Ogden v. Fit-
zimmons, 7 Cranch, 1, 18; and in
the case last cited, the rule was
applied in favor of the assignee of
a judgment, who had purchased
the land bound by the lien. It js
every day's experience that the
transfer for value of a bill or note
payable to bearer or duly en-
dorsed, to a bona fide purchaser,
may confer a right, although the
vendor had none, or had parted
with his right by an assignment,
which did not pass the legal title ;
Peacock v. Rhodes, Douglas, 636 ;
Phelan v. Moss, IT P. P. Smith,
159; and the rule applies at the
present day to bonds payable to
bearer, and designed to pass cur-
rent from hand to hand ; Lardner
V. Hurray, 2 Wallace, 110; 1
Smith's Lead. Cas., 818, 7 Am.ed.
In like manner, a purchaser of
stock who omits to have it trans-

BASSET V. NOSWOETnT.

51

ferred to him on the books, will
be postponed to a subsequent
purchaser, who perfects his title ;
Kortright v. The Bank, 22 Wend.
354 ; Delafeld v. The State of Il-
linois, 26 Id. 192 ; Craig v. The
City of Vicksburgh, 31 Mississip-
pi, 216; The Morris Canal and
Banking Go. v. Fisher, 1 Stock-
ton, 666. So the assignment of a
bond according to the mode pro-
Tided or prescribed by the legisla-
ture, may entitle the assignee as
against a prior but less formal
transfer. See Moore t. Halcomhe,
3 Leigh., 597 ; Downer v. The
Bank, 39 Vermont 25, 29.

It is equally well-settled that
a chancellor will not deprive an
assignee of a chose in action, of a
legal advantage, arising fropi his
diligence, or the laches of one to
whom the demand was previously
assigned. In Judson v. Corcoran,
17 Howard, 612,the defendant, who
had prosecuted a claim against
the Mexican government which
had been transferred to him by
assignment, before the Commis-
sioners appointed to distribute the
fund, and obtained an award, was
held to have thereby acquired a
preference over the plaintiff, who
had taken a previous assignment
of the same claim, but who had
slept on his rights, and failed to
appear before the commissioners.
"The contest," said Catron, J.,
" here depends on tiie merits.
Judson had the earliest assign-
ment of part of the amount de-
clared to be due to "Williams by
the two United States commission-
ers in 1842, to the extent of
$6,000, and tlie claim assigned be-

ing a right depending on an equity
against the government of Mexico,
and assuming that both sets of
assignments are alike fair, and
originally stood on the same
bona fide footing, the rule of ne-
cessity is, that the assignor having
parted with his interest by the first
assignment, the second assignee
could take nothing; and, as he
represents his assignor, is bound
by the equities imposed on
the latter; 2 White & Tudor's
Eq. Ca., notes to Ryall v. Rowlex ;
and hence has arisen the maxim
in such cases, that he who is first
in time is best in right. But this
general rule has exceptions, and
the case before us was obviously
decided in the court below on an
exception to the general rule.

" Judson took his assignment in
January, 1845, which he first pro-
duced in May, 1851, when this bill
was filed. In the meantime Cor-
coran had got his assignment, and
immediatelj^ gave written notice
of it to the Department of State,
and August 17th, 1847, received an
answer from the secretary, recog-
nizing the fact of notice having
been received, and that it was filed
with the documents of the post-
poned claim of Williams and Lord,
appertaining to the unfinished
award.

" Corcoran's assignment was
fair, and accepted on his part with-
out knowledge of Judsou's ; nor is
the contrary alleged in the bill.
And assuming Judson's to be fair
also, and that no negligence could
be imputed to him, then the case
is one where an equity was succes-
sively assigned in a chose in action

52

BONA FIDE PUECHASEKS.

to two innocent persons, whose
equities are equal, according to the
moral rule governing a court of
chancery. Here, Corcoran has
drawn to his equity a legal title to
the fund, which legal title Judson
seeks to set aside, and asks an
affirmative decree in his favor to
that effect.

" Now, nothing is better settled
than that this cannot be done.
The equities being equal, the law
must prevail.

" There are other objections to
the case made by the appellant,
growing out of negligence on his
part in not presenting his assign-
ment and claim of properly to the
State Department, so as to notify
others of the fact. The assign-
ment was held up and operated as
a latent and lurking transaction,
calculated to circumvent subse-
quent assignees, and such would
be its effect on Corcoran, were
priority accorded to it by our de-
cree. It is certainly true, as a
general rule, as above stated, that
a purchaser of a chose in action, or
of an equitable title, must abide by
the case of the person from whom
he buys, and will only be entitled
to the remedies of the seller ; and
yet, there may be cases in which a
purchaser, by sustaining the char-
acter of a bona fide assignee, will
be in a better situation than the
person was of whom he bought ;
as, for instance, where the pur-
chaser, who alone had made in-
quiry and given notice to the
debtor, or to a trustee holding the
fund (as in this instance), would
be preferred over the prior pur-
chaser, who neglected to give no-

tice of his assignment, and warn
others not to buy.

" The cases of Dearie v. Hall,
and Loveridge v. Cooper, 3 Rus-
sell's R. 1, 60, established the doc-
trine to the foregoing effect in
England ; they were followed in
the case of Mangles v. Dixon,
M'Naughton and Gordon's R. iSI.
And the same principle of protec-
ting subsequent bona fide pur-
chasers of chases in action, &c.,
against latent outstanding equities,
of which they had no notice, was
maintained in this court in the
case of Bayley v. Oreenleaf, 1
Wheaton, 46. That was an out-
standing vendor's lien, set up to
defeat a deed made to trustees for
the benefit of tlie vendee's credi-
tors. The court held it to be a
secret trust ; and although to be
preferred to any other subsequent
equity unconnected with a legal
advantage, or equitable advantage,
which gives a superior claim to
the legal title, still, it must be
postponed to a subsequent equal
equity connected with such advan-
tage.

" The rule was distinctly as-
serted by Chancellor Kent, in 1 81 7,
in Murray v. Lylburn, 2 Johns. C.
C. 442, before the question was
settled in England, and before this
court discussed it, which was in
1822. And the same principle was
applied by the Court of Appeals of
Virginia, in the case of Moore v.
Holcombe, 3 Leigh's E. 59T, in
1832."

Similar language was held in
Maybin v. Kirby, 4 Richardson,
Eq. 105 ; and it results from the
same principle that an assignee of

BASSET V. NOSWORTHT

53

a demand, who brings a suit in the
name of the assignor, and obtains
a judgment for the debt which is
paid, may rely on his diligence as
a defence to an action for money
had and received, by a prior as-
signee whose title was originally
superior to his own, but who has
lost his right by not asserting it
in due season. The Mercantile
Ins. Co. V. Corcoran, 1 Gray, 75.
It has been held in some in-
stances that the assignment of a
chose in-action, is within the gene-
ral rule that a transfer procured by
fraud, cannot be avoided after the
property has passed into the hands
of a b-iua fide purchaser ; Taylor
V. Get, 10 Barr, 428. But in
Cockel V. Taylor, 15 Beavan, 103 ;
15 English Law and Equity, 101,
the court came to an opposite con-
clusion, on the broad ground that
the title of such an assignee can-
not rise higher than that of the
assignor, and must consequently
fail when that is vitiated bj' fraud.
The subject matter in this case
was a mortgage of a fund in court,
and the question would have been
different, had the mortgage been of
land. The doctrine that when the
equities are equal, he who has the
law shall prevail, applies to the as-
signment of a bond and mortgage.
A mortgage is a grant of the
premises, subject to a condition of
defeasance. It consequently vests
the legal estate in the mortgagee,
who may enter or maintain a writ
of entry or ejectment ; 1 Smith's
Leading Cases, 891, 7 Am. ed. This
is the view alike of law and equity,
and it prevails in Pennsylvania,
and generally in the New England

States, although it has been abro
gated by statute in New York. A
mortgagee is, therefore, a purchaser
who has the law; Willoughhy v.
Willoughby, 1 Term, 763, 767 ;
and this is equally true of one to
whom he assigns the mortgage, in
a way to pass the legal title ; Prior
V. Wood, 7 Casey, 142; Pierce v
Faunce, 47 Maine, 513 ; Carpenter
V. Longan, 16 Wallace, 276 ; Glid-
den V. Hwnt, 24 Pick. 221. Such
an assignee is entitled to a prefer-
ence over an equitable assignee of
the bond. S ) the assignment of a
first mortgage to the holder of a
third, confers a legal right which
may be enforced to the exclusion
of the second mortgage. See notes
to Marsh v. Lee, vol. 1. This re-
sult depends on the acquisition of
the legal title, and will not ensue
from tacking a mortgage of an
equity of redemption. Hence,
where four mortgages are executed
successively to different persons,
the last mortgagee cannot obtain
priority over the third, by taking
an assignment of the second mort-
gage ; Brace v. The Duchess of
Marlborough, 2 Pere Williams,
495 ; Willoughby v. Willoughby, 1
Term, 753, 773 ; Siter v. M'Clana-
chan, 2 Grattan, 280, 305.

" Where there is equal equity,
possession must prevail ; " Archer
V. The Bank of England, Douglas,
637,639 ; and hence as between two
bona fide assignees of a policy, he
will have the preference to whom
it is actually handed over as a
security, or by way of sale ; Wells
v. Archer, 10 S. & R. 412 ; Ullis
V. Kreutzinger, 27 Missouri, 311.
One who relies on an equitable

64

BONA FIDE PURCHASERS.

right ought to perfect it as far as
the nature of the case will permit,
and may be postponed to a subse-
quent purchaser, who is misled
through his neglect in leaving the
documentary evidence of the title
in the assignor's possession ; Mears
V. Ball, 1 Hare, Y3; Wells v.
Archer. "If,"s;iidTilgliman,C. J.,
in the case last cited, " the plaintilf
had known of the policy, and suf-
fered it to remain in Field's pos-
session, and in consequence of this,
it was pledged to the defendant
for a valuable consideration with-
out notice, the defendant would
have had a superior equity." See
Golyer v. Finch, 5 House of
Lords Cases, 906.

Another exception to the rule
that he who is first in point of time,
has the better right, arises where
the holder of the antecedent equity
has been guilty of laches which have
facilitated a fraud or deceit on a
subsequent purchaser, and the case
will then fall within the principle
that a loss should be borne by him
whose default occasioned it ; Oar-
landv. Sarrison, IT Missouri, 282.
" The maxim prior in tempore
potior injure," said Gibson, C. J.,
in Fisher v. Knox, 1 Harris, 622,
" must not be allowed to protect one
who has neglected a precaution
requisite to protect those who come
after him from imposition." The
principle has been applied under a
great variety of circumstances. An
assignee of a judgment who neg-
lects to have it marked to his use,
will be postponed to a subsequent
assignee, to whom the judgment is
duly transferred of record ; Gamp-
bell's Appeal, 5 Casey, 401 ; Fisher

V. Knox. So a covenant to post
pone a judgment to a prior or co-
temporaneous mortgage, is not
binding on a subsequent purchaser
of the judgment, unless it is en-
tered on the docket, or brought to
his knowledge in some other way ;
Hendrickson's Appeal, 12 Harris,
363. In like manner, the failure
of a grantee to record his deed,
may postpone him to a bona fide
assignee of a mortgage created
subsequently by the grantor, and
it is immaterial that the mortgagee
knew of the deed, unless he com-
municated his knowledge to the
assignee ; Mo/t v. Clark, 9 Barr,
399. See Reader v. Johnson, 8
Harris, 190, 193.

The doctrine is carried in Eng-
land, and in some American tribu-
nals, to the extent of requiring the
assignee of a chose in action, or of
personal property held in trust, to
give notice of the assignment to
the debtor or trustee, and thus
enable him to put third persons on
their guard ; and one who does not
take this precaution, may be post-
poned to a subsequent purchaser;
jposi, notes to Ryall v. Bowles.

It should, nevertheless, be re-
membered, that a rule by which
one is precluded from asserting a
right which is indisputably his
own, operates as a forfeiture, and
should not be enforced, unless he
has been guilty of the gross negli-
gence, which if not collusive, pre-
pares the way for fraud ; Fvans v.
Bicknell, 6 Vesey, 190 ; Plumb v.
Fluitt, 2 Anstruther, 432 ; Colyer
V. Finch, 19 Beavan, 500 ; 5 House
of Lords Cases, 905. A man may
fall short of the care which a large

BASSET V. NOSWOKTHT.

55

experience of life and business
would suggest, without being re-
sponsible to third persons for a
loss which they might have
avoided, if he had been more
cautious ; Colyer v. French ;
French v. Colyer; Biddle v. Bay-
ard, 1 Harris, 150.

In Biddle v. Bayard, the plain-
tiff lost a pocket book, containing
a certificate of stock endorsed in
blank. The certificate was pur-
chased by the defendant from a
third person, and without notice
that the vendor had no title. The
plaintiff brought trover, and it was
contended for the defence that the
plaintiff should have endorsed the
instrument to his own order. By
carrying it about with hira, en-
dorsed in blank, he had enabled
the finder to mislead the defend-
ant, and should consequently bear
the resulting); loss. This argument
was overruled and judgment en-
tered for the plaintiff.

It has been intimated in some
instances, that the assignee of a
chose in action is not liable to
the latent equities of third persons,
where he has no means of ascertain-
ing their existence, and buys iu
the full belief that the assignor has
the right which he assumes to
convey ; Livingston v. Dean, 2
Johnson's Ch. 419 ; Murray v.
Lylhurn, lb. 443 ; Murray v. Bal-
lon, 1 Id. 366 ; Davis v. Barr, 9
S. & R. 13T ; Taylor v. Gitt, 10
Barr, 431; Mott v. Clark, 9 Id.
403; M'Connell v. Wenrich, 4
Harris, 365 ; Moore v. Holcomhe,
3 Leigh, 597 ; M' Blair v. Gibbs,
IT Howard, 232 ; The Ohio
Life Ins. Co. v. Ross, 2 Maryland

Ch, 25, 39. This is no doubt true,
if by a latent equity we are to un-
stand one left in the back ground
through carelessness or design.
It is the duty of a buyer to perfect
his title as far as the circumstances
will permit ; see Fisher v. Knox, 1
Harris, 622 ; and if he does not, and
third persons are misled, he must
bear the loss. One who wilfully
leaves the documentary evidence
of a demand which he has pur-
chased in the hands of the vendor,
cannot complain if he is postponed
to a subsequent purchaser. But
this is entirely consistent with the
doctrine that as between two inno-
cent purchasers of a chose in ac-
tion, who stand on an equal footing
in other respects, he should be pre-
ferred who was first in point of
time. No well considered decision
conflicts with this principle, al-
though dicta may be found look-
ing the other way. Subject to the
exceptions above noted, an equity
which binds the assignor, is
equally obligatory on the assignee,
although the latter may have given
value without notice, the general
rule being that a purchaser stands
in the shoes of the vendor, and can
assert no right that could not have
been maintained by him. It is
immaterial in this regard that the
equity is latent, unless the failure
to make it appear results from
bad faith or negligence ; Poillon
V. Martin, 1 Sandford Ch. 569 ;
Burk V. Lathrop, 22 New York,
585 ; Maybin v. Kirby, 4 Richard-
son's Eq. 105 ; Judson v. Corcoran,
17 Howard, 612 ; Bradley v. Root,
5 Paige, 632; Cockell v. Taylor,
15 English Law and Equity, 101 ;

56

BONA FIDE PURCHASERS.

Taylor v. Bates, 5 Cowen, 3t6 ;
Muir T. Schenck, 3 Hill, 226 ; see
Donly V. Eays, 11 S. AH. 400,
408.

So an equitable assignment or
appropriation of a debt as a secur-
ity, or for value received, may be
postponed to a subsequent statu-
tory transfer which passes the
legal title. See M'Connell v.
Wenrich; Moore v. Holeombe.
The principle is the same where the
contest lies between an equitable
assignee of a mortgage, and one to
whom it has been transferred by
an instrument duly executed to
pass the estate in the land, ante.
Donley v. Hays, It S. & R. 400,
406.

Whatever the rnle may be with
regard to the latent equities of
third persons, it is well settled, that
the assignee of a chose in action
takes it subject to every defence
that would have been available be-
tween the original parlies ; Wheeler
V. Hughes, 1 Dallas, 23 ; Reder v.
Johnson, 8 Harris, 190. The de-
fence need not exist at the time of
the assignment, but may grow out
of a transaction occurring subse-
quently before notice to the debtor,
who is entitled to suppose that the
right remains in the creditor, until
he learns the contrary from some
authentic source. Notice is there-
fore an indispensable precaution,
and if it is not given, a demand
a^gainst the assignor purchased,
or arising subsequently to the
assignment, may be set off in a
suit brought in his name for the
benefit of the assignee. The rule
applies equally whether the defence
consists in an allegation that the

debt has been paid, or grows out
of a collateral agreement varying
the original demand ; Finney v.
Brown, 1 Penna. Rep. 25'!. So an
equity that would have been valid
against the mortgagee, will be ^s
good against an assignee, because
the debt is the principal, and the
mortgage a mere security, and
whatever invalidates the one neces-
sarily extinguishes the other ;
Glute V. Robinson, 2 Johnson,
595 ; Westfall v. Jones, 23 Barb.
9. There is nothing harsh or
inequitable in this rule, because
the assignee may protect himself
by interrogating the mortgagor,
when the latter must answer truly
at the risk of being estopped. 2
Smith's Leading Cases, 720, t
American edition, ante, vol. 1,
notes to Marsh v. Lee.

A mortgage given to secure a
promissory note, is an exception to
this rule ; and an indorsee for value
in good faith, and before the matu-
rity of the note, may enforce the
mortgage, notwithstanding any
equity or defence that may exist
between the original parties, and, as
it would seem, although the mort-
gagee has been paid in full ; Car-
penter V. Longan, 16 Wallace,
276 ; Pierce v. Faunce, 47 Maine,
513.

It has been held in New York,
that as the mortgage debt is the
principal, and the mortgage itself a
mere collateral, so the assignee of
a mortgage, although by a writing
under seal, and duly recorded, is
not entitled to the favor which
equity shows to a bona fide pur-
chaser of an estate in land ; Van
Rensselaer v. Stafford, Hopkins,

BASSET V. NOSWORTHT.

569; 9 Cowen, 316; Poillon v.
Martin, 1 Sandford Ch. 569;
Peabody v. Fenton, 3 Barb. Ch.
451 ; Sweet v. Sweet, lb. 647 ;
Burt T. Lathrop, 22 New York,
585.

In Poillon v. Martin, one who had
been fraudulently induced to part
with a mortgage for un current
bank notes, was held entitled to
recover, not only against the per-
son who did the wrong, but against
an assignee to whom the mortgage
had been transferred subsequently
for value, without notice of the
fraud. The same rule prevails in
some of the other States ; Kamena
V. Euelhy, 8 C. E. Green, 78 ;
English v. Waples, 13 Iowa, 57 ;
Sims V. Bammond, 38 Id. 308 ; and
it was held in the case last cited,
that notice to a mortgagee of a
prior unrecorded mortgage, is bind-
ing on a subsequent assignee in
good faith and for value. In this
instance, however, the first mort-
gage was recorded before the as-
signment, while in Kamena v.
Huelhy, the assignment was not
such as to transfer the legal title.
See Mulford v. Peterson, 6 Vroom,
127.

This doctrine is sustained by the
case of Whalley v. Whalley, 1 Ver-
non, 404, and by the opinion of Mr.
Powel, 2 Powell on Mortgages, 601,
but would seem to be inconsistent
with the well established doctrine,
that the transfer of the title to land
as a security, is as much a purchase
as if the conveyance were abso-
lute, and may consequently be
pleaded ii> bar of equitable relief
and discovery. If this is true of
the mortgage as orignally made, it

should be equally so of every sub-
sequent act by which it is trans-
ferred in good faith and for value.
Peacock Y. Burt; Coote on Mort-
gages, 375 ; Donley v. Rays, 17
S. & R. 400, 408 ; Sugden on Ven-
dors, 738, vol. 1, 739. A mortgage
is something more than a debt at-
tended by a lien for its payment ;
it operate as a conveyance, both at
law, and in equity which here as
elsewhere follows the law ; Gonard
V. The Atlantic Ins. Go. 1 Peters,
344, 441 ; Ewan v. Hobbs, 5 Met-
calf, 1 ; and hence the assignee of a
mortgage in good faith and for
value should have all the rights of
a purchaser; Donley v. Hays, 17
S. & R. 400, 408 ; Wilson v. Hill,
2 Beasley, 148, 150. The rule was
laid down in M'Farland v. Grif-
fiths, 4 W. C. C. R. 385, although
the court would seem to have erred
in regarding it as applicable to the
mortgagor. His right to redeem
on paying the amount really due is
inseparable from the mortgage, and
follows it into the hands of the as-
signee, who must know that it ex-
ists, and should ascertain the truth
by inquiry.

But this does not apply to the
latent equities of third persons,
which are not brought home to the
assignee by notice. The weight
of authority accordinglj^ is, that a
bona fide assignee of a mortgage -
by a deed duly executed* and, when
requisite, recorded, should have
priority over prior claimants, whose
equity arises out of a mere appro-
priation or transfer of the debt,
which is not so drawn as to pass
title to the land ; Wilson v. Hill,
2 Beasely, 143, 150. "A mort-

58

BONA FIDE PURCHASERS.

gage," said C. J. Gibson in Donley
V. Hays, " is the subject of a legal
assignment, because ttie mortgagee
has the legal estate in the land, but
the interest in a mortgage whicli
passes by the assignment of a bond
secured by it, is a mere equity, and
the assignee, as in Whitfield v.
Fausset, 1 Vesey, 391, must there-
fore abide by the case of the as-
signor." See Den v. Dimon, 5
Halsted, 156 ; Pierce v. Faunce,
4t Maine, 513 ; Carpenter v. Lou-
gan, 16 Wallace, 2^6 ; Livingston
V. Dean, 2 Johnson, Ch. 4Y9 ; Mott
V. Clark 9 Barr, 399; Pryor v.
Wood, 1, Casey, 142 ; Olds v. Cum-
mings, 31 Illinois, 188. The rule
should obviously be the same where
a second assignment is taken with-
out notice of an equity, which,
though growing out of the first,
does not appear on the face of
the transaction; Cicottev. Gagnier,
2 Michigan, 381. This rule has the
great advantage of facilitating the
sale and transfer of mortgages,
while that laid down in Poillon v.
Martin, tends to render them un-
marketable. A creditor who can
dispose of the security, need not
call in the debt ; and this in times
of financial diflSculty is a gain to
the community as well as the par-
ties. See Donley v. Hays, 17 S.
& R. 400, 408.

To render the assignment of a
mortgage valid against prior equi-
ties growing out of the act or
agreement of the assignor, it must
be so executed as to pass the legal
title ; and where it does not, the
case is within the principle which
as between equal rights gives su-
periority to that which is first in

point of time. See Mulford v.
Peterson, 6 Vroom, 121. A differ-
ent rule seems to have been applied
in The Ohio Life Ins. Co. v. Ross,
2 Maryland Chancer}', 25 ; but the
decision would seem to have been
founded on the eil'oneous idea,
that the purchaser of a chose in
action takes it free from antece-
dent equities.

In Mott V. Clark, tlie mortgagee
had notice that the mortgagor was
a trustee, and the question was,
whether the subsequent assign-
ment of the mortgage for valuable
consideration and without notice,
clothed the assignee with the
rights of a purchaser, and enti-
tled him to disregard the trust.
The court held, that although a
mortgage might be so far a mere
chose in action, or securitj', as to
be subject to the equities between
the mortgagor and mortgagee,
against which the assignee maj'
protect himself by asking the for-
mer how much is due, and whether
he has any defence, yet that with
regard to the equities of third
persons the case is difierent,
and an assignment for value
is to be regarded as a pur-
chase ; and it was consequently
decided, that the mortgage was
good in the hands of the assignee,
not only against the equity of the
defendant, which had bound it in
those of the assignor, but against
a deed from the mortgagor to the
defendant, which the latter had
failed to put on record. In deliver-
ing the opinion of the court on this
occasion, Rogers, J., held the fol-
lowing language : " The fact of
notice was properly left by the

BASSET V. NOSWORTHY.

59

court to the jury, who found that
the mortgagee had. notice. But,
in answer, the plaintiff contends
that admitting this to be so, he
is an assignee without notice, and
however it may be as between the
mortgagee and third persons, he
takes tlie property discharged of
all equities of which he had no
knowledge. The question, there-
fore, is (granting he had no notice,
which is undoubted), does the as-
signee stand in the same or a bet-
ter position than the mortgagee ?
On this point the court instructed
tli-e jury, that the assignment of a
mortgage is not so within the re-
cording acts, as to give the
assignee protection against an
unrecorded deed, of which the
mortgagee had full notice. That
a mortgagee is a purchaser within
the statute of frauds is rultd in
Lancaster v. Bolan, 1 Kawle, 245,
on the authority of Chapman v.
Emery, Cowp. 278. Now it has
been repeatedly ruled, that al-
though a purchaser has notice of
an equitable claim, by which his
conscience is affected, yet a person
purchasing from him bona fide,
and without notice of the right,
will not be bound by it. So a
person having notice of an equita-
ble claim may safely purchase of a
person who bought bona fide and
without notice. These positions
are elementary, and are fully sus-
tained by the authorities cited. If,
therefore, a mortgagee is to be con-
sidered on the footing of a pur-
chaser, it would seem to follow
that an assignee without notice
takes the property discharged of a
latent equity, if any existed. These

cases, although analogous, are not
expressly in point, but the case of
an assignee of a bond and mort-
gage is expressly ruled in Liv-
ingston V. Dean, 2 J. C. R. 4'! 9.
He takes it subject to all the
equity of the mortgagor, but not
to the latent equity of a third
person. To suhject him to such ,
an equity, he must have express
or constructive notice at the time
of the assignment. It is a general
and well settled principle, says the
chancellor, in Murray v. Lylburn,
2 J. C. R. 443, that the assignee
of a chose in action takes it sub-
ject to the same equity it was sub-
ject to in the hands of the as-
signee: 2 Vern. 691-165; 1 P.
Wms. 491; 1 Ves. 122; 4 Ves.
118. But this rule is generally
understood to mean the equity re-
siding in the original obligor or
debtor, and not an equity residing
in some third person against the
assignor. He takes it subject to
all the equity of the obligor, say
the judges in the very elaborately
argued case of Morton v. Bose, 2
Wash. 233, on this very point,
touching the rights of the assignee
of a bond. The assignee can al-
ways go to the debtor and ascer-
tain what claims he may have
against the bond or other chose in
action, which he is about purchas-
ing from the obligor ; but he may
not be able, with the utmost dili-
gence, to ascertain the latent
equity of some third person
against the obligee. He has not
any object to which he can direct
his inquiries, and for this reason
the claim of the assignee, without
notice of a chose in action, in the

60

BONA FIDE PURCHASERS.

late case of Bedfearn v. Ferrier,
1 Dow, 50, was preferred to that
of a party setting up a secret
equity against the assignor. Lord
Eldon observed, in that case, that
if it were not to be so, no assign-
ment could ever be taken with
safety. It would be utterly impos-
sible to guard against combination
by the mortgagor and mortgagee,
particularly witli the aid of the
owner of the latent equity. If
the defendant, the owner as he
alleges of the moiety, loses his
property, it is his own laches, for
it was his duty to put his deed on
record as notice of his title. Hav-
ing neglected his duty he is post-
poned to the mortgagee, who is
a purchaser within the Statute of
Frauds. At law his title is availa-
ble against the owner, who ne-
glected to put his deed on record.
The assignee stands in the position
of the mortgagee so far as regards
the legal title, but stands as the
authorities evidently show, unaf-
fected with an equity of which he
had no knowledge, or possi-
bility of knowledge, and against
which it would be impossible for
him, with the most careful dili-
gence, to guard himself. If he
had notice of the outstanding
equity, he wonld be in the same
position as the mortgagee, and
equity in such case would relieve
the owner of the estate, notwith-
standing his neglect. The princi-
ple on which courts of equity act,
is that actual notice is equivalent
to constructive notice derived from
the registry of the deed. The in-
tention of the acts requiring deeds
to be recorded, was to secure sub-

sequent purchasers and mortga-
gees, against prior secret convej'-
ances and fraudulent encumbran-
ces ; and therefore when a person
has notice of a, prior conveyance,
it is not a secret conveyance by
which he can be prejudiced ; for
he can be in no danger where he
knows of another encumbrance,,
because then he might have stop-
ped his hand from proceeding, and
therefore is not the person whom
the statute meant to relieve. The
Court of Chancery affords relief,
because it is against equity for
him to protect himself by his legal
title when he had express notice
of a prior convej'^ance or encum-
brance. But it is evident this
must be personal to the mortga-
gee, and cannot affect his innocent
assignee." This case was cited
with approbation in Phillips v.
The Bank of Lewistown, 6 Ilar-
ris, 394, 403, where the court said
that a mortgagee is a purchaser,
and that his assignee, without no-
tice, will take free from the equi-
ties of third persons. The same
A'iew was taken in Connecticut v.
Bradish, 14 Mass. 206, and the
assignment of a mortgage by a
deed duly recorded, held to render
the assignee a purchaser for value,
and entitle him to protection
against an • unrecorded convey-
ance, which had been made known
to the mortgagee, and would, con-
sequently, have been entitled to
priority but for the subsequent
assignment.

It is well settled in England, that
where a chose in action or chattel
personal is held in trust, notice to
the trustee, will give a purchaser

BASSET V. NOSWORTHT,

61

from the cestui que trust priority
over an antecedent purcliaser
who has omitted to give notice ;
Sugden on Vendors, ch. 22,
sect. 1, pi. 41. But tliis rule is
limited to personal and does not
apply to real estate ; Sug. on
Vend. lb. pi. 46 ; Jones v. Jones,
8 Simons, 633. For even if no-
tice of an equity, to the holder of
the legal title, could render him a
trustee for the party giving the
notice, it would not bind the con-
science of a subsequent purcha-
ser, unless brought home to him
at the time of the purchase. A
violation of duty on the part of
a trustee, only affects those who
are cognizant of its commission.
And this reasoning has led many
of the courts of this countrj'^ to
reject the whole doctrine, both as
it regards real estate and choses in
action; see notes to How v. Daw-
son, post, part 2d.

The acquisition of the right of
property to chattels, is governed,
in general, by the maxim which
has been cited as regulating the
transfer of the title to land, that
one can confer no greater rights
than he has ; Ventress v. Smith,
10 Peters, 161 ; and the purchaser
cannot rely on his good faith, and
the payment of value in reliance
on the possession and seeming
right of a vendor, who sells with-
out title, as an answer to the
claim of the true owner ; M ' Gom-
bie V. Davis, 6 East, 538 ; 7 Id. 5 ;
Everett v. Saltus, 15 Wend, 415 ;
20 Id. 265 ; Copland v. Bosquet,
4 W. C. C. R. 588, 594 ; Agnew
V. Johnson, 10 Harris, 471 ; Cog-
gill V. The Hartford and New

Haven Railroad Co., 3 Gray, 545 ;
Brown v. Peabody, 3 Kernan, 121 ;
1 Smith's Lead. Cas. 1201, 7 Amer.
ed. ; and in Agnew v. Johnson,
and Coggill v. The Hartford and
New Haven Railroad Co., this prin-
ciple was carried to the extent of
deciding that a condition that the
right of property shall not pass un-.
less the price is paid, may bind a
bona fide purchaser from the vendee.
But it is true here, as in the cases
which have been considered, that
one who wilfully or negligently
enables another to hold himself
out to the world as the owner, by
furnishing him with the documen-
tary evidence of title, or suffering
the goods to be entered in his
name on the books of the ware-
house where they are deposited,
will be estopjped as against a
purchaser who gives value in the
belief that the apparent owner-
ship is real ; see Dyer v. Pearson,
3 B. & C. 38 ; Saltus v. Everett,
20 Wend. 267, 280 ; Pickering v.
Busk, 15 East, 38 ; Bavies v.
Bradly, 24 Vermont, 55 ; Cop-
land V. Bosquet, 4 Washington C.
C. R. 588, 594; M'Gauley v.
Brown, 2 Daly, 426 ; see Porter
V. Parks, 49 New York, 564;
Dixon V. Rolards, 17 Missouri,
580; Keyser v. Harback, 3 Duer,
373; Garmichael .v. Beck, 10
Richardson, 332; and that a pur-
chaser may rely on the acquisition
of the legal title as a protection
against a prior equity of which he
was ignorant at the time of buy-
ing; Glemsen v. Davison, 5 Bin-
ney, 392; Albert v. The Saving
Bank, 1 Maryland, Ch. 40. Hence,
a bona fide purchase of a chattel

62

BONA FIDE PURCHASERS,

from a trustee Is valid against the
cestui que trust ; Eaves v. Gilles-
pie, 1 Swan. 128. So, as between
two purchasers whose title is in
other respects equal, he who first
obtains possession, will prevail ;
Lanfair v. Sumner, ] *l Mass.
210 ; Jeiveit v. Lincoln, 16 Maine,
11 Y ; see Packard v. Wood, 4
Gray, 301 ; The Bank v. Jones,
4 Conistock, 49T ; Brown v. Wil-
merding, 5 Duer, 520; Shaw v.
Long, 17 S. & R. 99. Where an
actual delivery is impracticable,
a symbolic delivery may suffice ;
and it is enough in general as
against creditors and subsequent
purchasers, that all should be done
to put the purchaser in possession,
which the nature of the case per-
mits ; see Davis v. Bradley, 2 Wil-
liams, 118; Holhrook v. Wright,
24 Wend. 168 ; 1 Smith's Leading
Cases, 56, 7 Am. ed. But it is as
well established in the case of per-
sonal property as in that of real,
that one who buys with notice of
a prior contract of sale, or equity,
will not acquire a title ; Smally v.
Ellett, 36 Illinois, 500 ; Clark v.
Flint, 22 Pick. 251.

The mere circumstance that one
is entrusted with the possession
of a chattel by the owner, will
not enable him to pass the title
in the absence of an authority
to that effect, altaough the pur-
chaser gives value in the belief
that the property belongs to the
bailee, or that he is empowered
to sell ; Copland v. Bosquet ; 1
S'mith's Leading Cases, 1196, "7 ed ;
Ballard v. Burgett, 40 New York,
314; Craig v. Marsh, 2 Daly, 61.
Chattels are constantly' placed in

the custody of agents for safe-
keeping, transportation or repair,
and it has never been held that
such a course will preclude a re-
covery against a purchaser, to
whom they are wrongfully trans-
ferred. Such an estoppel will not
arise, unless the bailor does some
act giving a deceptive appearance
of ownership, which transcends
the ordinary course of business,
and is not requisite to the end in
view, as by confiding the written
indicia of title to the bailee, or
permitting him to have them made
out in his name.

Although a defence resting on '
the ground of a purchase for
a valuable consideration without
notice, is favored in equity, it is,
nevertheless, subject to restric-
tions which are intended to pre-
vent it from defeating the end
fir which it was designed, and be-
coming a cloak for fraud and neg-
ligence, instead of an incentive to
diligence, and a protection to good
faith and fair dealing. These re-
strictions prevail with full force
in England at the present daj'',
but there is some doubt as to
whether they are all equally ap-
plicable in this country. Yet the
cases are numerous in which the}'
have been recognized or adopted
as integral parts of our equitable
sj'stcm. Among these is that of
Snelgrove v. Snelgrove, 4 Dessaus-
sure, 214, where they were summed
up as follows :

" From the decided cases these
requisites seem to be indispensa-
ble to support a plea, that the de-
fendant is a purchaser for valuable
consideration, without notice In

BASSET V. NOSWORTHT,

63

the first place it must be sworn to ;
Sugden, 507 ; Marshall v. Frank,
8 Prec. Cha. 480. If the defend-
ant answer to anything which he
should plead, he overrules his
plea, though he may answer any-
thing in subsidium of his plea ; 1
Ans. 14; Blacket v. Langlands,
Sel C. C. 51 ; Gilb. 58. The plea
must state the deeds of purchase,
setting forth the dates, parties and
contents, briefly, and the time of

their execution, for that is the

»

peremptory matter in bar ; 3 Atk.
302 ; Walwyn v. Lee, 9 Vesey, jr.
24. Such a plea must aver that
the person who conveyed or mort-
gaged to the defendant, was
seised in fee, or pretended to be
seised ; and was iu possession, if
the conveyance purported an im-
mediate transfer of the possession,
at the time when he executed the
purchase or mortgage deed ; 2 At-
kins, 391 ; lb. 631 ; Story v. Lord
Windsor, 3 P. Wms. 219, 281;
Head v. Egerton, 1 Vern. 246 ;
Trevanian v. Morse, 3 Vese3-,jr.
226 ; lb. 32; Ambler, 421.

The plea must aver a convey-
ance and not articles merely ; for
if there are articles only, and the
defendant should be injured, he
may sue at law upon the cove-
nant in the articles; 3 P. Wms.
281 ; 1 Atkins, 571.

The plea must distinctly aver
that the consideration-money men-
tioned in the deed, was bona fide
and truly paid, independently of
the recital of the purchase deed ;
for, if the money be not paid, the
plea will be overruled, as the pur-
chaser is entitled to relief against
payment of it. A consideration

secui-ed to be paid, is not suffi-
cient; 2 Atk. 241; 3 Atk, 304,
814. It is doubted if tlie particu-
lar consideration need be stated
in the plea. The cases have been
contrary ; 2 Freem. 43 ; 2 C. C.
156 ; 1 C. C. 34 ; Hard. 510.

But if it be stated, there can be
no objection to it, for if it be bona
fide and valuable it need not be
adequate to support the purchase
and the plea; Ambler, T63, 76'? ;
Finch, 102. The plea must also
deny notice of the plaintiff's title
or claim, previous to the execution
of the deeds, and payment of the
consideration-money. And the
notice so denied, must be of the
existence of the plaintiff's title,
and not merely of the person who
could claim under such title; 1
Vern. 119 ; 2 Atk. 631 ; 3 Id. 304 ;
2 Eq. C. 685 ; 1 Atk. 522, which
overruled Brampton v. Banker,
Wilson's Ch. R. 125; 2 Vern.
159 ; 3 P. Wms. 243.

The notice must be positively
and not evasively denied, and must
be denied, whether charged in the
bill or not; 2 Eq. C. Abr. 682; 3
P. Wms. 244 ; 6 Resolutions in 2
P. Wms. 491.

If particular instances of notice,
or circumstances of fraud are
charged, they must be denied as
specially as charged ; 3 Atk. 815 ;
2 Vesey, jr. 181 ; 4 Bro. C. C. 322 ;
2 Vesey, 430. The special and
particular denial of notice or
fraud, must be by way of answer,
that the plaintiff may be at liberty
to except to it for insufficiency ; 1
Vern. 185; 2 C. C. 161.

But notice and fraud must also
be denied in the plea ; otherwise.

64

BONA FIDE PURCHASERS.

the fact of notice or fraud ■will not
be in issue; 3 P. Wms. 91, 95;
Meadows v. The Duchess of King-
ston, Mitt. 21T, n. ; 5 Vesey, jr.
426.

" The title of a purchaser for
valuable consideration without no-
tice, is not a sword to attack the
possession of others ; Amb. 292 ;
3 Vesey, jr. 225. It is a shield to
defend the possession of a pur-
chaser. Whether it will protect
his possession from a legal as well
as an equitable title may be said
to be doubtful. The cases have
been contradictory on this point.

" In Sogers and Searl, 2 Free-
man, 84, Lord Nottingham had
been of opinion that the plea was
not good against a legal estate.
And in Williams v. Lambe, Lord
Thurlow says expressly, that he
thought where a party (complain-
ant) is pursuing a legal title, the
plea did not apply, it being a bar
only to an equitable and not to a
legal claim ; 3 Bro. C. C. 264. On
the other hand, in Burlacey. Cook,
Lord Nottingham was of opinion
that the plea was good to protect
a purchaser against a complainant
seeking to set up a legal estate ; 2
Free, 24. And in Parker v. Blyth-
more, the Master of the Rolls
threw out the same opinion, though
he did not consider it necessary to
decide it, as he thought the plea
maintainable on other grounds ;
2 Eq. C. Abr. Y9 ; Pla. 1. And in
Jerand v. Saunders, Lord Rossi j'n
decreed that the plea would stand
against a legal, as well as an equit-
able title; 2 Vesey, jr. 454.

" It is evident that this doctrine
remains unsettled, for it does not

appear that the cases have ever
been collated, sifted, and a final
conclusion drawn from such com-
parison. It is obvious from an
inspection of the eases generally,
that in most of them where the
plea has been supported, it has
been against an equitable and not
a legal title.

"Mr. Sugden, in his judicious
collection of the doctrine and au-
thorities upon this subject, says,
' that to argue from principle, it
seems clear, that the plea is a pro-
tection against a legal as well as
an equitable claim ; and as the au-
thorities in favor of that doctrine
certainly preponderate, we may
perhaps venture to assert that it
will protect against both. ' "

" I am not entirely satisfied that
this is a correct conclusion. The
inclination of my mind is the other
way. It should be remembered
that the plea protects, by the court
refusing to aid the complainant in
setting up a title. Now when the
title attempted to be set up is an
equitable one, it seems very reason-
able that the court should forbear
to give its assistance in setting up
such equitable title against another
title set up by a fair purchaser.
But when the complainant comes
with a legal title, I do not perceive
how he can be refused the aid of
the court. It seems no longer to
be optional. As there is, however,
so much contradiction and doubt,
I could wish this point would be
carried up to the Court of Ap-
peals, in any case where it fairly
arose, and was the very point de-
cided.

" To apply all that has been sai(i

BASSET V. NOSWORTHY.

65

to the point under consideration,
it is obvious, that if through in-
dulgence, which I am willing to
do, we should admit the answer of
the purchasers to stand for a plea;
that the answer does not comply
with the various regulations which
we have seen from the authorities
must be pursued. The answers
have not set forth the dates, par-
ties and contents of the deeds of
purchase, nor especially the time
of their execution, which is essen-
tial. The answers have not set
forth that the person from whom
the defendants purchased was
seized in fee, and was in posses-
sion, nor even from whom he pur-
chased. The defendants have not
set forth what kind of deeds they
had, whether absolute conveyances,
or only articles of agreements to
convej-, in which last case the plea
would not protect. The answer
has not stated that the considera-
tiim money was bonj, fide, truly
and actually paid, which is essen-
tial to support the plea. The an-
swer has not denied so explicitly
as it should do, (though it has
done so generallj',) notice of the
plaintiff's claim, or of the exist-
ence of his title. And finally the
title of the complainant attempted
to be resisted by the defendant's
answer, (meant and considered to
stand in tlie place of the plea,) is
a legal and not an equitable one.
On all these grounds, I am of
opinion that the purchasers from
William Snelgrove cannot be pro-
tected as purchasers for valuable
consideration without notice, and
bringing themselves within the
VOL. II. — 5

rules necessary to give effect to
that defence."

A similar unqualified recogni-
tion of the English doctrine may
be found in Alexander v. Pendle-
ton, 8 Cranch, 462 ; Boone v.
Chilles, 10 Peters, \11 ; Hunter v.
Sumrall, 6 Littell, 22; Blight's
Heirs v. Banks, 6 Monroe, 698 ;
Halsteady. The Bank of Kentucky,
4 J. J. Marshall, 554 ; Moore v.
Clay, 7 Alabama, 142 ; Bush v.
Bush, 3 Strobhart's Equity, 131 ;
Nantz V. 31'Pherson, 1 Munford,
599 ; Billow's Heirs v. Shannon's
Heirs, 3 Terger, 308. But there
are other decisions of equal weight,
in which it has been relaxed in one
or more particulars.

The first and one of the most
important requisites to such a de-
fence, in England, is that which
concerns the estate of the vendor,
and it is that which has oc-
casioned most discussion in the
United States. Under the English
authorities, it is essential to aver,
that the vendor was seised, or pre-
tended to be seised of an estate in
fee simple, free from incumbrance,
and that the defendant believed
that the title was such as it was
thus represented ; and it must also
be averred, that the vendor was in
actual possession, unless the estate
is professedly sold as a reversion ;
Tompkins v. Anthon, 4 Sandford's
Ch. 9"? ; Baynard v. Norris, 5 Gill,
468. The policy and good sense
of this requirement are obvious,
so far as it merely seeks to test
the good faith of the purchaser,
bj' requiring an averment, that the
title appeared to be good, and that

66

BONA FIDE PTTRCHASEES,

it was acquired in the belief that
the appearance was real, because
good faith and diligence are essen-
tial to the validity of such a de-
fence, as well as freedom from
actual fraud, and the purchaser
tnnst swear to his belief, that the
vendor had a good title, as well as
to the absence of actual or con-
structive notice, that it was bad.
And the averment of pretensions,
true or false to such a title on his
part, and of belief in their truth on
that of the vendee, must be of such
pretensions as might reasonably be
believed ; and of a belief founded on
evidence suflBcient to induce it, and
not on appearances or allegations,
which reasonable dilligence and
inquiry would have shown to be
false or fraudulent ; Dillard v.
Crocker^ 1 Spear, Eq. 20. Thus
it was held in Vattier v. Hinde,
1 Peters, 252, 2'7l, that where a
purchase was made under an exe-
cution against a party who had
no documentary title to the land,
the purchaser was not entitled to
the consideration which will only be
afforded where the vendee has been
deceived by such a semblance of
title, as to justify the belief that it
exists. And where the 'bill set
forth a settlement on a husband
and wife for their lives, remainder
as they or the survivor of them
should appoint, the death of the
husband, an appointment by the
widow to the plaintiff, her second
marriage, and an entry by the
heir of the second husband, with
a prayer for relief against him,
and he pleaded an ante nuptial
settlement on his father on the
faith of his mother's I'epresen-

tations that she was seised in
fee, it was held by the Vice-
Chancellor, that as it appeared
from the bill, that due inquiry on
the part of the second husband
would have shown that the wife
had nothing more than a life
estate under the original settle-
ment, there was a failure to exer-
cise the care and diligence which
are essential to the character of a
bona fide purchaser, although it
was admit1i(ed that the case would
have been different if she had been
the apparent owner of an estate in
fee, which had failed in conse-
quence of some act on her part, or
on that of those under whom she
claimed ; Jackson v. Howe, 2
Simon & Stewart, 412. There may
be some doubt whether the point
was properly decided as one of
pleading, and the chancellor, who
declined to express any opinion
upon it when the case subsequently
came before him, affirmed the de-
decision on other grounds ; 4 Rus-
sell, 514 ; but there can be none as
to the general rule that where the
vendor wants the ordinary evi-
dence and muniments of title, the
purchaser will not be protected
unless he is misled by fraudulent
representations, which he has no
adequate means of detecting ; Jones
V. Powles, 3 Mylne & Keene, 581.
But the English doctrine, as
above stated, not only requires,
that the vendor should have a
title apparently good in itself and
susceptible of being transferred,
but that this title should be or ap-
pear to be a seisin in fee, thus
shutting out equitable estates, even
as it would seem where the trust

BASSET V. NOSWORTHT.

67

is executed, and the beneficial in-
terest vested absolutely in the
cestui que trust or, where, as in the
case of a mortgagor, the eqijity is
of such a nature as to be for most
purposes equivalent to the legal
fee. The reason of this distinction
between the purchase of a legal
and equitable interest seems to be
that the protection accorded to
hona fide purchasers is an excep-
tion to the general rule of juris-
prudence, that no one can transfer
a greater right than he has. Tlie
rule prevails in equity as well as
at law, but a chancellor will not
intervene to enforce the rule
against one who having acquired a
legal right in good faith, may en-
joy it with a safe conscience. But
where the purchase is of a mere
equity, which owes its existence to
the court of chancery, and cannot
be enforced without its aid, the
maxim, nemo plus juris in alium
transferre potent quam ipse habet,
applies will full force. In other
words, the purchase of an equitable
estate, is regarded by a chancellor
as the purchase of a legal estate is
viewed at law ; it being true in both
instances, that he who is first in
point of time has the better right ;
Sumner v. Waugh, 56 Illinois, 531 ;
Parsons v. Jury, 1 Yerger, 296 ;
Oallion v. M'Caslin, 1 Blackford,
91 ; Jones v. Jones, 8 Simons, 633,
642 ; Maries v. Cooper, 22 Missis-
sippi, 208 ; Brown v. Wood, 6
Richardson's Eq. 155 ; Daniel v.
Eollinshead, 16 Georgia, 190.
Hence, one who buys an equitable
estate, or interest, with a knowl-
edo-e of its real character, and
without obtaining the legal title,

cannot relj^ on his good faith and
the payment of value, as a reason
why he should be exempt from
any claim that could have been
enforced irrespectively of the sale.
The doctrine that the vendor
must have or appear to have a
legal title, was, as we have seen,
adopted in Snelgrove yS Snelgrove,
ante, and is generally accepted in
the United States ; Flagg v. Maun,
2 Sumner, 486, 557. In Shiras v.
Craig, 7 Craneh, 34, 48, Marshall,
C. J., declared that the purchase
of an equitable estate, is subject
to existing equities, and in the
subsequent case of Vattier v.
Hunde, 7 Peters, 252, he refused
on this ground to recognize the
defendant as a bona fide purchaser.
A real or pretended legal title in
the vendor, was also held requisite
in Boon v. Chilles, 10 Peters, ITO,
and all that is regarded as essen-
tial to the validity of such a de-
fence in England treated as not
less essential here. And although
an equitable estate in land is re-
garded, in Pennsylvania, as the
substance, and the legal title as a
mere shadow, yet, the purchaser
of a mere equity, cannot, as sucli,
and where the recording acts do
not intervene, claim protection on
the ground of bona fides, and the
payment of a valuable considera-
tion. It is laid down in the able
judgment of Chief Justice Gibson,
in Chew v. Barnett, 12 S. & R.
389, " that a purchaser for valuable
consideration takes the title, free
of every trust of equity of which
he has no notice, is intended of
the purchase of a title perfect on
its face; for every purchaser of an

68

BONA FIDE PURCHASEES.

imperfect title, takes it with all
its imperfection on its head. It is
his own fault, that he confides in
a title which appears defective to
his own ej'es, and he does so at
his own peril. Now every equit-
able title is incomplete on its face.
It is in truth nothing more than a
title to go into chancery to have
the legal estate conveyed, and
therefore, every purchaser of a
mere equity takes ,it subject to
every clog that may lie on it,
whether he has had notice or not.
But the purchaser of a legal title,
takes its discliarged of every trust
or equity which does not appear
on the face of the conveyance, and
of which he has not had notice,
either actual or constructive."

Similar language was held in
Reed v. Dickey^ 2 Watts, 459 ;
Kramer v. Arthurs^ "7 Barr, 165,
and Sergeant V. Ingersoll,lh. 340;
3 Harris, 343. It should however
be read with the implied qualifica-
tion that it is immaterial whether
the title he legal or equitable,
if the vendee buys in the belief
that it is legal. One who takes a
third mortgage, supposing it to be
the first, acquires a mere equity
of redemption, but he may still
squeeze out the second, by taking
an assignment from the first mort-
gagee.

The rule that the purchaser of
an equitable estate or interest, is
subject to every equitj' that at-
tached to the premises while in the
hands of the vendor, is modified
by the statutes which require in-
struments affecting the title to the
land to be registered, and render
them invalid if they are not.

Hence the purchaser of an equity
by deed duly recorded, is entitled
to a pi-eference over equities, grow-
ing qut of the previous acts or
agreements of the vendor, which
have not been placed on record ;
The Ohio Life Ins. Co. v. Boss, 2
Maryland, Ch. 25 ; The United
States Ins. Co. v. Shriver, 3 Id.
383 ; Correy v. Gaxton, 4 Binney,
140; Bellas Y. M'Carty, 10 Wsitts,
13. In Bellas v Jf CaHy, a con-
troversy between two grantees of
equitable estate arising under a
contract of sale, was accordingly
decided in favor of the junior
purchaser, because the elder had
omitted to record his deed. " The
language of the recording acts,"
said Rogers, J., in delivering the
opinion of the court, " is sufliciently
comprehensive to embrace equit-
able as well as legal titles, and the
record of an equitable title is
notice to all subsequent pur-
chasers." "We are, therefore, of
opinion that the bonv- fide pur-
chaser of an estate, whether legal
or equitable, without actual or
constructive notice, who has re-
corded his deed in due time, and
pursued his claim in other respects
with diligence, is to be preferred
to a prior purchaser claiming un-
der an unregistered deed." For a
like reason it has been held that
where the purchaser of an equita-
ble estate growing out of a con-
tract of sale, obtains a recorded
deed from the original vendor, he
need not record the conveyance of
the equity, because a subsequent
purchaser of the equity ought to
trace it back, and ascertain what
has become of the legal title ; Cor-

BASSET V. NOSWORTHT,

69

rey v. Gaxton, 4 Binney, 40 ; BeU
las V. M'Carty, 10 Watts, 93;
Kramer v. Arthurs, 1 Barr, 165,
ante, vol. 1, 311. In Kramer v.
Arthurs, land was sold by articles
of agreement which were not re-
corded. The purchaser conveyed
to one Havens, who was the man-
ager of an unincorporated com-
pany, in trust to sell and divide
the net proceeds among the stocli-
holders. This trust was declared
in a separate instrument, and did
not appear on the face of the deed,
or of record. A judgment was
then obtained against Havens, un-
der which the premises were sold
by the sheriff, and a deed executed
to the plaintiff. In the interval
between the entry of the judgment
and the sheriff's sale. Havens sold
the premises to the defendant, who
obtained a duly recorded convey-
ance from the original vendor.
It was held that the defendant had
the better right. The conveyance
by which he acquired the legal
title was recorded before the plain-
tiff bought, and although it was
subsequent to the judgment, a
judgment creditor as such, is sub-
ject to every equity that could
have been enforced against the
debtor. The trust under which
Havens acted, gave him no inter-
est in the land, and his interest in
the proceeds was not susceptible of
the lien of a judgment.

It has sometimes been laid down
broadly, that a purchaser from a
cestui que trust is affected with
notice, and cannot perfect his title
bv obtaining a conveyance from
the trustee. " No rule," said Gib-
son, C. J., in Kramer v. Arthurs, 1

Barr, 161, " is sounder or more
imperative than that the purchaser
of an inchoate or imperfect title,
intimating, as it does, that some-
thing is kept back, must stand or
fall by it, as it existed in the hands
of his vendor.'' And he went on
to hold that where an equitable
estate, arising under an unrecorded
agreement is sold, the purchaser
will be subject to any grant or
declaration of trust that may have
been made by his immediate ven-
dor. The case of Ingersoll v.
Sergeant, 7 Barr, 340 ; 3 Harris,
843, went still further, and to the
extent of determining that a pur-
chase of real estate from one for
whom it is held in trust, perfected
by a conveyance from the trustee,
is subject to rights and equities
arising from the unrecorded con-
tracts of the vendor, although the
legal title is regularly deduced
of record through the trustee.
The knowledge of the purchaser
tliat the title was outstanding in
the hands of a trustee, was said to
be notice not only of the equity of
the cestui que truH, but of a cove-
nant into which he had entered
with a tliird person, and it was
held immaterial that this was not
recorded or made known to the
trustee, ante, 49.

This conclusion seems to be un-
founded in principle, and at vari-
ance with the recording acts of
Pennsylvania. There can be no
doubt that the purchaser of an
equitable estate or interest cannot
call for-a conveyance by the holder
of the legal title, without satisfj'-
ing any claim that he may have
against the vendor, growing out

70

BONA FIDE PURCHASERS,

of the transaction in which the
equity originated ; Crawford v.
Bartholf, Sexton, 458. So one
who buys with notice from a trus-
tee, is subject to the equity of the
cestui que trust. But this goes
no part of the way towards estab-
lishing that a grant by a trustee,
confirmed by the cestui que trusty
or vice versa, will not confer a
good title against the latent equi-
ties of third persons. Such a
grantee has the law, and a court of
equity will not deprive him of an
advantage which he may retain
consistently with conscience. It
was said by Lord Hardwicke, in
Willoughby V. Willoughby, 1 Term,
7 30, that notice that a term has been
assigned to protect the inheritance,
is not notice that the inheritance
has been mortgaged, or is subject
to special limitations. It is notice
of nothing but that there is an in-
heritance to protect. For a like
reason, notice that an estate is
held in trust is not notice that it
has been sold or incumbered by
the beneficiary.

The true rule as stated in Sum-
ner V. Waugh, 56 Illinois, 539,
from a former edition of this work,
is that the purchase of an equity
passes the vendor's estate as it-
existswhen bought, without giving
it additional validity on the one
hand, or precluding the vendee on
the other, from strengthening his
position b}' the acquisition of an
outstanding right or title ; Zollman
V. Moore, 21 Grattan, 313 ; Gor-
rey v. Gaxton, 4 Binney, 140 ;
Bellas V. M'Garty, 10 Watts, 257 ;
Flagg v. Mauler, 2 Sumner, 486,
518. In Flagg v. Mann, Story,

J., was of opinion, that a pur-
chaser of an equity who has suc-
ceeded in completing his title at
law, should not be affected with
notice, and dispossessed by chan-
cery, merely because he took a
conveyance from the cestui que
trust in the first instance, before
obtaining the legal estate from the
trustee ; and that where a purchase
for valuable consideration is set
forth by way of answer, and at-
tended with a full disclosure, the
only question should be as to
whether the purchase was made in
good faith, and under circum-
stances showing an apparent right
in the vendor to convey, whatever
the rule may be where such a de-
fence is pleaded in bar of the dis-
covery sought by the bill. " If,"
said he, " a cestui que trust in fee
conveys the estate to a purchaser,
and the trustee afterwards confirms
the sale and releases to the cestui
que trust or to the purchaser, it
seems to me that such a purchase is
entitled to protection, against any
antecedent secret trust, which is
unknown to him at the time of the
purchase ; and the confirmation is
operative, notwithstanding that in
a strict legal sense, the cestui que
trust was not seised in fee when he
sold." Such obviously should be
the rule where, as in Ingersoll v.
Sergeant, the whole forms one
transaction, and the purchaser
pays the price to the cestui que
trust on the faith of the convey-
ance from the trustee.

It has nevertheless been said,
that a purchaser who knows that
he is buying an equitj', cannot se-
cure himself by taking a convey-

BASSET V. NOSWORTET.

ance of the legal title, after he has
been informed of the claim of a
prior purchaser, because he is then
aware that the latter has the el-
der, and therefore better right, to
call for the legal title. See The
Mutual Aissurance Society v. Stone,
3 Leigh, 218. This is entirely cqn-
sistent with the doctrine that a
purchaser from a cestui que trust,
who obtains a release or confirma-
tion from the trustee, without
knowing that there is any prior or
better right, will be preferred to a
prior purchaser, who has omitted
to complete his title ; and it is well
settled that if the vendor seems to
have a good legal title, the appear-
ance need not be real.

It has been contended that as
between claimants whose equities
are equal, he has the better right
who was first in point of time, and
that the holder of the junior equity
cannot protect himself by obtain-
ing a conveyance of the legal title
after he has been notified of the
prior right. This may be true of
a purchaser, who knew that he
■jvas acquiring an imperfect title,
or was not honse fidei in the full
sense of the term ; but cannot be
carried further consistently with
the well established rule that a
first mortgage may be tacked to a
mortgage of the equity of redemp-
tion for the purpose, and with the
efi'ect of excluding an intervening
incumbrancer, who had filed a bill
of foreclosure against .the mortga-
gor ; Marsh v. Lee, 2 Ventris, 33 T.

The preponderance of authority,
moreover, seems to be that one who
buys an equitable estate, knowing
it to be such, but under the belief

that he is acquiring the first and
best right, may protect himself by
obtaining a conveyance of the legal
title after he has received notice of
an antecedent equity, of which he
was ignorant at the time of buying.
See Zollman v. Moore, '2,1 Grrattan,
241, 821, ante, 48. lu Bowen v.
Evans, 1 Jones & Latouche, ITS,
264, Chancellor Sugden observed
that "whether the purchaser has
the legal estate, or only an equita-
ble interest, he may, by way of de-
fence, avail himself of the charac-
ter of a purchaser, without notice,
and is entitled to have the bill dis-
missed, although he may, the next
hour, be turned out by the legal
title." It was held, in like manner,
in Campbell v. Brackinridge, 8
Blackford, 4T1, that one " who pur-
chases an equitable title without
notice of a prior equity, and after-
wards, with notice, buys in a legal
title to support his equitable one, is
entitled to protection as a bona fide
purchaser." So it may be inferred
from the dicta in Belcher v. But-
ler, 1 Eden, and Burnett v. Wills-
ton, 12 Yesey, 130, that a first
mortgage may be tacked to a third
to the exclusion of an intervening
incumbrance, altliough the third
mortgagee knew when he madethe
loan that the legal title had passed
by the first mortgage.

The means through which the
legal estate is acquired, should,
nevertheless, be such as equity and
good conscience can approve ; and
a purchaser cannot protect himself
by taking a conveyance from a
trustee, with knowledge that the
act is in fraud of the trust ; Saun-
ders V. Dicken, 2 Vernon, 271.

72

BONA FIDE PURCHASERS.

In Willoughby v. Willoughby, 1
Term, 636, a mortgagee, who hav-
ing notice of a marriage settle-
ment, and of the jointure of the
plaintiff under it, took an assign-
ment of an outstanding term,
which had been assigned to attend
and wait upon the inheritance, was
held not tohebonsefidei^or entitled
to set up the term to tlie exclusion
of a mesne incumbrance, of which
he was ignorant. But one who
has a valid equity, will not forfeit
it by taking undue means to ob-
tain the legal title, or having it
assigned to him with notice ; see
Cox V. Osborn, 1 A. K. Marsh. 311.
It is well settled, that deeds
operating by way of grant, or un-
der the Statute of Uses, confer
such estate as the grantor has, and
can do no more, so that the form
of the conveyance is immaterial if
it is so worded as to transfer the
title, though not in the way the
parties designed ; Flagg v. Mann,
2 Sumner, 426,561. It was accord-
ingly held in Flagg v. Mann, that
the right of tlie grantee to protec-
tion as a bona fide purchaser, was
not affected by his claiming under a
deed of release, because such an
instrument will take effect as a
bargain and sale, if made for a
valuable consideration ; 2 Smith's
Lead. Cases, 472, 1 Am. ed. It
has nevertheless been held that
one who agrees to take the title
as it stands, without stipulating
or requiring that it shall be good,
is not within a rule which only
applies in favor of those who buy
on the faith of a deceptive ap-
pearance, which proves to be un-
founded ; Boone v. Chilles, 10

Peters, 117 ; Valtier v. Hinde, 1
Id. 271 ; Oliver v. Piatt, 3 Howard,
333. Hence a deed, which simply
purports to convey all the vendor's
right, title and interest, will not
defeat an unregistered mortgage ;
Bragg v. Paulk, 42 Maine, 502 ;
because there is nothing in such a
grant to indicate that he assumed
to pass, or that the grantee expected

to acquire, an unincumbered title

)

and the court will not impute a
fraudulent design to injure the
prior incumbrancer ; Smithes Heirs
V. The Bank, 21 Alabama, 24 ; and
in Oliver v. Piatt, and May v. Le
Glerc, 11 Wallace, 217, a deed of
release or quit claim was said to
be within this principle. For a
like reason, an assignment of all
the estate of a debtor for the bene-
fit of his creditors, will not operate
on land which he has sold, or
holds as a trustee. See Twelves v.
Williams, 3 Wharton, 485 ; Lud-
wig V. Higly, 5 Barr, 132. So, a
grant of " all lots, tracts or par-
cels of land, situate in the borough
of Pottsville, andcountj' of Schuyl-
kill, which we now possess, and
are entitled to jointly or severally,"
will not pass the title to a lot which
has been previously conve3'ed by
an unrecorded deed, because the
intention of the grantor presuma-
bly is to convey only such lots as
are still his, and can be honestly
sold ; Helherington v. Clark, 6
Casey, 393. The decision might
have been different, if there had
been but one lot to which the deed
could apply, because the generality
of the language would have been
controlled by the subject-matter.
There is more difficulty in as-

BASSET V. NOSWOKTHY.

73

sen ting to a dictum in Oliver v.
Piatt, that taking a deed with a
covenant of special warranty is
sufficient to show a doubt of the
warrantor's title. Such an infer-
ence would appear wholly inad-
missible, and would be received
with no little surprise in Pennsyl-
vania, where covenants of general
warranty are so unusual, that in
Cresson v. Miller, 2 Watts, 272,
the introduction of such a clause
into a deed was made the ground
of a presumption against the good
faith of the purchaser. The true
doctrine seems to be that where it
is apparent, from the whole trans-
action, that the purchaser had no
doubt of the goodness of the title,
and gave a full price for what he
believed to be the fee, it is im-
material whether the grant is by
, way of release or of bargain and
sale, and whether it does or does
not contain a warranty ; Flagg v.
Mann, 2 Sumner, 486, 562. This
is the more obvious, because a
lease and release was, and perhaps
still is, the mode of conveyance
ordinarily used in England, 2 Bl.
Comm. 339.

It is essential in England to the
character of a bona fide purchaser,
that he should have paid the price
in full and received a conveyance ;
and notice while the transaction
is incomplete in either particular,
will not only preclude any further
step, but invalidate what has been
already done; Auhetelx. Converse,
18 0hio,]Sr.S. 11; Wells y. Morrow,
38 Alabama, 120 ; Simons v. Rich-
ardson, 2 Littell, 229 ; Neutz v.
M'Fherson, 1 Mumford, 599 ;
Pillow V. Shannon, 3 Yerger, 308 ;

Bush V. Bush, 3 Strobhart's Eq.
301 ; Duncan v. Johnson, 13 Ar-
kansas, 190 ; Moore v. Clay, 7 Ala-
bama, 142 ; Blight's Heirs v. Bond,
6 Monroe, 198 ; lialstei.d v. The
Bank of Kentucky, 4 J. J. Mar-
shall, 554 ; Blair v. Oioles, 1 Mun-
ford, 38 ; The Mutual Assurance
Society v. Stowe, 3 Leigh, 218 ;
Doswell V. Buchanan, lb. 365 ;
The Union Canal Co. v. Young,
1 Wharton, 410, 452; Blight v.
£are^s, 6 Monroe, 669. One reason
which has been assigned for so
much of the rule as requires that
the land should actually have been
conveyed before notice, is that a
vendee, under articles to convey,
has a remedy against the vendor
if the title proves to be defective,
which may be justwlien the latter
is solvent and able to respond in
damages. It has also been said,
that however great the hardship
may be to a vendee who gives value
in the belief that the vendor has a
good title, he still has but an
equity, and must consequently
yield to one whose right is older,
and, therefore, better than his own.
And as good faith is indispensa-
ble in every such transaction, he
cannot obtain a convej'anee for the
purpose of defeating the prior
right, after he has learned that it
exists. This, however, is hardly
consistent with the established
doctrine, that one who buys from
a grantor who has already parted
with his right, may exclude the
grantee by getting in an outstand-
ing legal title after he has been ap-
prised of the prior grant.

Here the equity arises from the
payment of the purchase-money.

74

BONA FIDE PURCHASERS.

and the deed which passes nothing
is merely fornlal. In Phillips v.
Morrison, 9 C. E. Green, 195, a
husband made a post nuptial set-
tlement in fraud of his creditors.
The wife subsequently sold and
conveyed the land to a bona fide
purchaser, and received the price.
A bill was then filed to set the set-
tlement aside, and it was held, that
though the conveyance to the pur-
chaser was void as being the act
of a feme covert, and conferred no
title on the purchaser, he was still
entitled to compensation for the
sum which he had paid in igno-
rance of the fraud. So in Whea-
ton V. Dyer, 15 Conn. 310, Waite,
J., observed, "if a person were in-
duced to loan his money upon an
agreement that he should be se-
cured by a mortgage of certain
lands, he would not be deprived
of his security by notice of an
outstanding unrecorded deed,
given him after he had parted with
his money, and before he had ob-
tained his mortgage deed. Under
such circumstances, he would not
be chargeable with fraud in per-
fecting the security. The case
would be different, if he had notice
before parting with his money, or
in time to reclaim it."

These authorities indicate that
notice will not bind the conscience
of a purchaser who has given value
in good faith, or preclude him from
going on to obtain a deed.

In Stanhope v. Varney, 2 Eden,
81, Lord Northington declared it
to be " immaterial when the legal
advantage is obtained, if the pur-
chase is made and the money paid
without notice." A purchaser

will be protected, not only where he-
has the legal estate, but when he
is better entitled to it than his ad-
versary, and there can be little
doubt that such a better right may
arise from the expenditure of
money in the purchase of a seem-
ing right which proves not to be
real; especially where the false
appearance arises from the laches
of the adverse claimant. If A.
fails to record his deed, and the
grantor sells the premises again to
B., notice from A. comes too late
after B. has paid the price, and he
may justly ask for reimbursement
before withdrawing, to make room
for A. See Youst v. Martin, 3 S.
& R. 423, 430.

The principle is the same when
a vendee goes into prossession
under a written or oral contract of
sale and makes valuable improve- ^
ments, in ign orance that the grantor
has parted with the title by an un-
recorded deed ; Boggs v. Warner,
6 W. & S. 469.

The argument is nearly, if not
quite, as strong when one furnishes
the consideration, and the convey-
ance is made to another, who sells
and receives the price without giv-
ing a deed, because it is the folly of
the cestui que trust- not to take the
conveyance in his own name ; and
the case falls within the rule, that
where two innocent parties suffer
from the fraud of a third person,
the loss shall be thrown on him
who gave occasion for it, by repos-
ing an undue or misplaced con-
fidence. Where the trust arises
ex maleficio, and the party benefi-
ciallj' interested is not chargeable
with laches, he may with more rea-

BASSET V- NOSWOKTHT.

75

son allege that his equity is
superior to that of a subsequent
purchaser who has paid in full
without obtaining the legal title ;
but it may be contended, even
under these circumstances, that
one who gives value on the faith
of the record should not be com-
pelled to yield to an unrecorded
equity.

It results from what has been
said, that to exonerate a purchaser
from antecedent equities, he must
have given value, or changed his
position for the worse, in the belief
that the vendor was entitled to
convey ; Martin v. Sale, 1 Bailey's
Eq. 11. When the transfer is
merely voluntary, as in the case of
a gift to a friend or relative, or of
a post nuptial settlement on a wife
or child, the title will be subject in
the hands of the grantee to every
claim that could have been en-
forced before the grant ; Front
V. Beekman, 1 Johnson's Ch.
288 ; Everts v. Agnes, 4 Wiscon-
sin, 343 ; Patton v. Moore, 32
New Hampshire, 382 ; Swan v.
Ligan, 1 M'Cord's Chancery, 232 ;
Boone v. Baines, 23 Mississippi,
136 ; Upshaw v. Hargrove, 6
Smedes & Marshall, 292 ; and the
principle is the same where a pur-
chaser who has agreed to give
value receives notice while the
purchase money is wholly or in
part unpaid, because it then be-
comes his dutj' not to proceed with
a transaction which cannot be car-
ried through without injury to
others. It has accordingly been
held, that to entitle one to protec-
tion as a bona fide purchaser, he
must have paid the price in full

before notice ; The Union Canal
Go. V. Young, 1 Wharton, 410,
432 ; Palmer v. Williams, 24
Michigan, 328; Pinfield v. Dun-
bar, 64 Barbour, 239 ; Brown v.
Welsh, 18 Illinois, 343; Keys v.
West, 33 Id. 316.

The weight of authority is, that
where the defence is made by plea,
and will lead, if sustained, to a
dismissal of the bill, it must be
averred that the price was paid
in full; but the defendant may
allege a part payment in his an-
swer as a ground for compensation,
or even for requiring the complain-
ant to look to the unpaid purchase-
money instead of the land ; Youst
V. Martin, 3 S. & R. 423; The
Farmer's Loan Co. v. Maltby, 8
Paige, 563 ; Doswelly. Buchanan's
Ex'ors, 3 Leigh, 361; Frost v.
Beekman, 1 Johnson, Ch. 288 ;
Everts v. Agnes, 4 Wisconsin, 343 ;
Flaggy. Mami, 2 Sumner, 486. The
rule was down in ffaughwout v.
Murphy, 6 C. E. Green, 118; Id.
531, in the following terms : " The
defence of a bona fide purchase may
be made by plea, in bar of discovery
and relief, or by answer, in bar of
relief only. If made by plea, the pay-
ment of the whole of the con-
sideration money must be averred.
An averment that part was paid
and the balance secured by mort-
gage, will not be sufficient ; Wood
V. Mann, 1 Sumner, 506. Proof
of the payment of the whole pur-
chase money is essential to the de-
fence, whether it be made by plea
or answer ; Jewett v. Palmer, 1
Johns. Ch. 65; Malony v. Kernan,
2 Drury & Warren, 31 ; Losey v.
Simpson, 3 Stockton, 246. Notice

76

BONA FIDE PURCHASERS.

before actual payment of all the
purcliase mone}', although it be
secured and the convej-ance exe-
cuted, or before the execution of
the conveyance, notwithstanding
the money is paid, is equivalent to
notice before the contract; 2 Sug.
V. & P. 533 (1037) ; Hill on Trus-
tees, 165. If the defendant has
paid part only, he will be protected
pro tanto only ; 1 Story's Eq. § 64,
c. ; Story's Eq. PL § 604, a."

It results from the American de-
cisions, that where the bill seeks
to fasten a trust on one who has
made a partial paj^ment in good
faith, or to compel him to convey,
the complainant should be put on
terms, and required to do equity
by indemnifying the defendant for
the amount actually' expended.
Such at least should be the rule
when an unrecorded deed or equity
is set up against a duly recorded
conve3'ance, because the defendant
has the law, and at least an equal
claim to the consideration of a
chancellor. In Youst v. Martin,
where the controversy lay between
a vendee (Martin), under an unre-
corded contract of sale, and a sab-
sequent purchaser (Youst), who
had made a payment on account,
and received a deed, Tilghman, C,
said : " Yoiist had paid a large
part of his purchase-money before
he received notice of the agreement
between M'Lene and John Mar-
tin. It was a question what was
the eflfect of such notice. The
Court charged, that the notice was
sufficient, provided it was received
before the execution of the deed
of conveyance from McLene to
Youst, and before payment of the

whole purchase-money. To this
broad proposition I cannot assent.
It would lead to consequences very
alarming. It has been much the
custom in Pennsylvania to make
sales of land under articles' of
agreement, by which the purchaser
paying part of the money in hand,
enters into possession, and pays
the residue by instalments. Sup-
pose, in a case of this kind, after
many years' possession and im-
provements made, part of the pur-
chase money being still due, and a
conveyance of the legal estate un-
exei'Uted, notice should be given
of a prior contract for sale of the
same land, can it be said that it
would be against equity for the
man in possession to obtain a con-
veyance of the legal estate ? or,
that a Court of Equity would force
him to give it up, till he had at least
been reimbursed the money which .
he had paid before he received no-
tice ? or, if the improvements had
been expensive, or the lapse of
time considerable, would he be
compelled to give it up at all ? In
cases of this kind, equity depends
very much on circumstances. We
should be cautious, therefore, in
laying down general rules. I would
only say, at present, that before
the defendant, Youst, was forced
to give up the possession, he ought
to be reimbursed the money which
he had paid before he received
notice. He had paid his money on
the faith of the legal title, which,
together with the possession, he
found in McLene, who had re-
covered the land by an ejectment.
The persons who now call for
equity were the cause of his pay-

BASSET V. NOSWOETHT.

77

ing this money ; he has suffered
by their negligence ; his equity,
therefore, is stronger than theirs.
When he found that he had been
deceived by McLene, there was
nothing against conscience in his
procuring the legal title, in order
to cover himself against the dam-
age he had sustained through the
fault of the plaintiffs. And they,
having drawn him into this embar-
rassment, ought not to object to
indemnify him to the amount of
the damage sustained through their
negligence; that is to say, the
amount of the money paid before
notice. I am aware that the law
is laid down in Sugden's Law of
Vendors, 48Y, precisely in the
terms in which it was stated in the
charge of the Court. I have ex-
amined the cases to which Sugden
refers, but do not find that the
exact point now in question came
under consideration. Those cases
do say, that notice before payment
of the whole purchase money is
sufficient, for the purpose of com-
pelling the person who receives no-
tice, to give up the estate; but
upon what terms, and whether he
is not to be indemnified, does not
clearly appear. There is, besides,
an important difference between
the law of England and Pennsyl-
vania. By our recording act, 18th
March, 1115, every man who has
articles of agreement affecting the
title of land, may place them upon
record, which will be notice to all
the world, so that he who does not
place them on record is guilty of
laches. In consequence of this
law, it is the custom of purchasers
to search the records before they

pay their money ; and if they find
nothing there, they conclude that
they are safe. But in England,
such articles are not recorded, and
the purchaser relies on the posses-
sion of the title papers."

" The principle," said Piogers,
J., in The Union Coal Company
V. Young, 1 Wharton, 431, of this
plea, as Lord Eldon observes, in
Wallwyn v. Lee, 9 Vesey, 24, and
Justice Spencer, in 18 Johns. 562,
is, " I have honestly and bona fide
paid for this estate, in order to
make myself the owner of it ; and
you shall have no information from
me as to the perfection or imper-
fection of my title, until you de-
liver me from the peril in which
you state I have placed mj'self, in
the article of purchasing bona fide."
To the validity of such a plea, a
number of particulars are abso-
lutely essential, all of which are
enumerated in Sugd. 553 ; and in
4 Dessaussure R. 280. The plea
must distinctly aver that the con-
sideration money mentioned in the
deed, was bona fide and truly paid,
independently of the recital of the
purchase in the deed ; for if the
money be not paid, the plea will
be overruled, or the purchaser is
entitled to relief against the pay-
ment. A consideration secured to
be paid is not sufficient. It seems
clear from the authorities, that
such a plea will protect the posses-
sion of a bona fide purchaser, with-
out notice from an equitable title,
although even that has been some-
times questioned ; but whether it
will avail against a legal title, is
more doubtful. From a review of
all the authorities, Sugden in his

78

BONA FIDE PURCHASEES.

treatise, seems to think it clear,
that the plea is a protection against
a legal as Tvell as an equitable
claim, although this conclusion
has been doubted by Chancellor
Dessaussure in Snelgrove, who ob-
serves, that when the title at-
tempted to be set up is an equita-
ble one, it seems very reasonable
that the court should forbear to
give its assistance in setting up
such equitable title against another
title set up by a fair purchaser.
But when the complainant comes
with a legal title, I do not perceive
how he can be refused the aid of
the court. In Pennsylvania, under
our recording acts, it cannot well
be doubted that it would be a valid
defence, as well against a legal as
an equitable title ; More v. Mahon,
1 Chan. Cases, 34 ; Maitland v.
Wilxon, 2 Atk. 241 ; 3 Atk. 314 ;
Eardington v. Nichols, 3 Atk. 304 ;
Snelgrove v. Snelgrove, 4 Des. R.
281 ; Hurray v. Finister, 2 Johns.
C. R. 15t."

" The purchaser is not protec-
ted, if he has notice previously to
the execution of the deeds and pay-
ment of the purchase money ; for
till then the transaction is not
complete; and, therefore, if the
purchaser had notice previously to
that time, he will be bound by it."

" In England the rule is carried
to a greater extent ; for it would
seem that a purchaser is not pro-
tected, unless the whole purchase-
money has been paid. The pre-
cise point came before this court
in Youst V. Martin, S S. & R. 423,
where the English doctrine was
overruled ; and it was held, that
where the purchaser has paid part

of the purchase-money, the owner
of the equitable title cannot re-
cover the land without repaying
the money paid by the purchaser,
before receiving notice. With
this equitable qualification, the
rule itself is distinctly affirmed.
The burthen of proof is thrown
upon the purchasers ; and in this
instance the defendants have failed
to prove payment in whole or in
part of the consideration, inde-
pendently of the recital in the pur-
chase deed."

" The consideration is secured
by mortgage on the property ; but
that, as has been seen, is not suffi-
cient, inasmuch as equity will pro-
tect the purchaser against pay-
ment of it."

The recent case of Haughwout
V. Murphy, 6 C. E. Green, 118;
1 Id. 531, was also a suit for spe-
cific performance against the ven-
dor, and a subsequent purchaser
from him. It appeared in evi-
dence that the latter bought in
good faith, but received notice be-
fore he had paid the whole of the
purchase-money. It was held, that
the complainant's laches in suffer-
ing two years to pass before he
filed the bill, rendered it inequita-
ble to execute the contract specifi-
cally against one whom the delay
had contributed to mislead, and
that the only relief that could be
afforded under the circumstances,
was by a decree for so much of
the purchase-money as had not
been paid at the time of notice.
Depue, J., said that the rule
which deprives a purchaser who
has contracted and accepted fl
conveyance, and paid part of the

BASSET v. NOSWORTHT.

purchase-money in good faith, of
the fruits of his purchase without
indemnity, was harsh, and not un-
frequently oppressive, and might
operate inequitably, even when
mitigated bj' the obligation to
make indemnity for payments and
expenditures before notice. A party
who sought to enforce such a rule
against a purchaser who was inno-
cent of actual fraud, must seek his
remedy promptly, and might lose
the right to a specific relief against
the lands by laches, and be re-
mitted to the unpaid purchase-
money. In like manner, where
the bill sought to fasten an unre-
corded trust on land which had
been sold to a bona fide purchaser,
who obtained a deed and paid part
of the purchase-money before no-
tice, it was held that he might
retain the land with a safe con-
science, and that the complainant
could only look to him for so much
of the price as remained unpaid
when he was informed of the trust ;
Flagg v. Mann, 2 Sumner, 486,
564.

It was said in like manner, in
Juvenal v. Jackson, 2 Harris, 519,
524, that to protect a purchaser
under the English rule, " there
must be execution, and the paj'-
ment of the entire purchase-
money ; by our own, it is other-
wise. If the purchaser pays the
whole before receiving notice, he
will be protected for the whole ;
if part only, he will be protected
for so much ; if he has paid no-
thing, he is not entitled to pro-
tection."

The doctrine applies a fortiori
where an unrecorded deed or mort-

gage is set up against a subsequent
purchaser, because there is some
degree of negligence on the part of
the plaintiff, and the defendant will
not only be entitled to compensa-
tion for payments made before
notice, but may, if the case re-
sults in an order of sale, have the
first claim on the proceeds. See
Duphey v. Frenaye, 5 Stewart &
Porter, 215 ; Frost v. Beekman, 1
Johnson, 288. The question is to
a great extent one of circum-
stances ; Youst V. Martin ; Duphey
V. Frenaye, 2 Stewart & Porter,
215 ; but it maybe said in general,
that when the complainant is not
chargeable with laches, the pur-
chaser ought to convey on being
indemnified for his outlay before
notice ; and it follows that if the
rents, issues and profits equal or
exceed the amount of such expen-
diture, there can be no further
Tight on his part to compensation,
and a decree should be made un-
conditionally in accordance with
the prayer of the bill ; Beck v. Ul-
rick, 1 Harris, 636, 639; 4 Id.
499 ; Kunkle v. Wolfsberger, 6
Watts, 126.

A right to compensation may
also grow out of the expenditure
of money on the land in ignorance
of an unrecorded deed, such a
grantee being a purchaser pro
tanto, although the price has not
been paid ; Boggs v. Warner, 6
W. & S. 469, 4Y2.

The payment must be actual,
and giving a bond or covenant
will not entitle the grantee as a
purchaser, because a court of
equity will set the obligation
aside, if it appears that the title

80

BONA FIDE PURCHASERS.

is defective by reaaon of an out-
standing equitJ^ If the consid-
eration is valuable, it need not
consist of money, and payment in
the notes of a third person, in
goods, or even in other land, may
be as effectual as if it were made
cash ; Jewett v. Palmer^ 1 John-
son, Ch. 65. So a contract which
is irrevocable in its own nature, or
through the force of circu mstances,
may entitle the vendee to protec-
tion as against antecedent equities,
by placing him under an obliga-
tion from which there is no escape.
Such is the position of one who
becomes bail in a civil or criminal
proceeding, and receives a deed
from the principal as an indem-
nity ; or of a trustee in a deed of
separation, to whom land or chat-
tels are conveyed by tlie husband
in consideration of a covenant to
save him harmless from the wife's '
liabilities. The principle is the
same when tlie purchaser gives a
promissory note which is nego-
tiated by the vendor, and payment
to the holder of the instrument
will then be equally valid, whether
made before or after notice ; Free-
man V. Deming, 1 Sandford, Ch.
32'!. So assuming the vendor's
debt to a third person, or giving
the purchaser's note to a third
person to whom the vendor has
assigned his right to the pur-
chase-money, may be equivalent
to actual payment ; Frost v. Beek-
man, 1 Johnson, Ch. 288 ; Jackson
Y.Winslow, 9 Cowen, 13.

There is another instance of the
rule, that if the obligation be irre-
vocable, it need not have been

performed. Where a bid has been
accepted at a sheriflf's sale, a sub-
sequent notice comes too late. For
as the vendee is subject to the rule
of caveat emptor, and must pay
the price, although the title
proves to be defective, he may
claim the favor which a court of
equity shows to purchasers.

The limits of the doctriue are
ill-defined. In general, one who
has accepted a deed cannot refuse
to pay the purchase-money on the
ground of a defect of title. Fraud
is an exception to the rule, and
the conscience of a purchaser can
seldom be affected by notice, un-
less the vendor has been fraudu-
lent in disposing of that which is
not equitably his. A decree
against the purchaser on equita-
ble grounds, therefore, almost ne-
cessarily implies that the vendor
is not entitled to the price. Where
the defect is legal, the purchaser
may be dispossessed in the ordinary
course of law, and the case is not
one for equitable jurisdiction.

Under the revised statutes of
New York, an unrecorded convey-
a,nce or mortgage is void against
a subsequent purchaser in good
faith and for value, whose con-
veyance is first duly recorded. In
Pennsylvania, all deeds and convey-
ances " are to be recorded within
six months after execution, and
if not recorded as aforesaid, shall
be adjudged fraudulent and void
against any subsequent purchaser
or mortgagee for valuable consid-
eration, unless such deed of con-
veyance be recorded as aforesaid,
before the proving and recording

BASSET V. NOSWORTHY.

81

of the deed or conveyance under
■which such subsequent purchaser
or mortgagee shall claim."

It has been held, under the latter
statute, that between successive
grantees of the same premises, he
is entitled to a preference whose
deed is first registered, although
not until after the second pur-
chaser has not only paid the price
in full, but obtained a conve^-ance
which is subsequently recorded
within the time prescribed by law ;
Lightner v. Mooney, 10 Watts, 407 ;
The Pennsylvania Manufacturing
Go. V. Neel, 4 P. F. Smith. In the
case last cited, one Clark conveyed
to Kennedy on the 13th of March,
1832, by a deed, which was not re-
corded until December 24th, 1834.
Clarke continued in possession,
and on the 26th of February, 1834,
sold to Neel for the price of $750,
which was paid in full. Subse-
quently to this payment, on the
24th of December, 1834, Kennedy
recorded his deed, and on the 10th
of January, 1885, Neel obtained a
deed which was recorded in the
following April. The Court below
held that as Neel had recorded his
deed within six months, he had a
better right than Kennedy, who
did not record his deed until
nearly three years after it was exe-
cuted, and should, at all events,
be reimbursed for the payment,
which he had been led to make
through Kennedy's negligence.
This decision was reversed by the
court above. Thompson Justice^
said, " the plain teaching of the act
is, that in order to be first in right
against a prior purchaser's deed,
the subsequent purchaser must be

\0L. II — 6

first in time on the record. We
have many decisions to this effect
in our books, such as Lightner v.
Mooney, 10 Watts, 407 ; Potts v.
Anstatt, 4 W. & S. 307 ; Mner v.
Goundie, 5 Id. 49 ; Hetherington v.
Clark, 6 Casey, 393 ; and Souder
V. Morrow, 9 Id. 85, where Lowrie,
C. J., said : " Purchasers ought to
know that they have only a con-
ditional title dependent on the
honesty of their vendors, so long
as they neglect to record their
deeds. They are not safe, merely
because of the neglect of a former
purchaser to record within six
months, and there being no subse-
quent deed to oppose them, but
because among several deceived
purchasers, they are first to obey
the law." Nor does the possession
by the subsequent purchaser, and
the making of improvements, alter
the case, or change the necessity
for the recording the deed to ren-
der the title efl'ective against the
first purchaser's deed if recorded
first. This is clearly shown by
some of the cases already cited,
and especially in Goundie v. The
Northampton Water Company, 7
Barr, 233 ; Mott v. Clark, 9 Id.
405, and Ebner v. Goundie, 5 W.
& S., supra."

It results from what is thus said,
that a purchaser is not entitled to
protection in Pennsylvania for
payments made on the faith of the
vendor's possession, and in igno-
rance of a prior deed, which has
not been recorded. It is not easy
to reconcile such a decision with
the cases which establish that a
trust arising ex maleficio, or from
the payment of the consideration,

82

BONA FIDE PUKCHASKRS.

cannot be enforced against a
purchaser, without reimbursing
what he has actually paid, although
he has not perfected his title or
receivfjd a conveyance. Under
these circumstances, the complain-
ant is not in default, which cannot
be said where a grantee omits to
record his deed.

It results from what has been
said, that giving a bond or other
security for the price, will not
free the purchaser from antece-
dent equities, because a chancel-
lor will afford relief by enjoining
the vendor ; Beck v. Ulrich, 1
Harris, 639 ; 4 Id. 499 ; Kunhle v.
Wolfsherger, 6 "Watts, 126. Pay-
ment in the notes of a third person
or of a bank, will, however, be
equivalent to actual payment ; see
High v. Batte, 10 Yerger, 555 ;
Christie v. Bishop, 1 Barbour, Ch.
105; Murray Y. Ballou, IJohiison,
Ch. 566; Eeatley v. Finster, 2 Id.
15; Jewett v. Palmer, 'J Id. 65;
Christie v. Bishop, 1 Barbour, Ch.
105 ; JacksonY. Cadwell, 1 Cowen,
622; M'BeeY. Loftis, 1 Strobhart's
Equitj', 90 ; Hunter v. Sumrall, 3
Littell, 62; Harris v. Norton, 16
Barb. 264 ; Patten v. Moore, 32 New
Hampshire, 382 ; and the same re-
sult may follow where the notes of
the purchaser are given at the time
and negotiated for value ; Frost v.
Beekman, Johnson's Ch.; Freeman
V. Deming, 3 Sandford's Ch. 327.
So the assumption of a debt due
by the vendor to a third person,
may be a valuable consideration,
by imposing an absolute obliga-
tion ; Jackson v. Winsloiv, 9
Cowen, 13. For a like reason, a
purchaser at a sheriff's sale will

not be affected by notice given af-
ter his bid has been accepted, al-
though before the execution of the
deed and payment of the purchase
money, because he is subject to
the rule caveat emptor, and cannot
escape on the ground that the title
is defective; Stuart v. Freeman,
10 Harris, 120. " In this respect,"
said Lewis, J., " a shei-iff 's vendee
stands upon a different footing
from other purchasers. The latter
may be relieved for failure of con-
sideration at any time before pay-
ment of the purchase-money. The
former is not entitled to such re-
lief, but is bound the moment the
sale is made to him. Hence it fol-
lows, that although his title is not
perfect before the acknowledg-
ment of the sheriff's deed, it is
sufficiently so to vest in him an in-
terest in the land, and to bind him
for the money. It is, therefore,
sufficient to protect him in the
payment of it."

The authorities agree in gen-
eral as to what constitutes a valu-
able consideration, although not
without some divergence. One
who pays for land and receives a
deed, is obviously a purchaser for
value, and so is one who takes a
pledge or mortgage as a principal
or collateral security for a cotem-
poraneous advance, ante, 32. See
Roxhorough v. Messick, 6 Ohio, N.
S. 448; Munn v. M'Bonald, 10
Watts, 270. The case is virtually
the same where a valuable right is
relinquished, or a new irrevocable
obligation assumed, in considera-
tion of the transfer of land or chat-
tels ; see Williams v. Shelby, 37
New York, 375. Marriage is, there-

BASSET V. NOSWORTHY.

83

fore, a valuable consideration ; and
where a settlement is made in an-
ticipation of marriage, the wife, and
children claiming through her, take
as purchasers. So also a convey-
ance to a trustee in a deed of
separation, in consideration of a
covenant on his part to indemnify
the husband against the wife's lia-
bilities, may be good against ante-
cedent equities, because a chan-
cellor cannot exonerate the cove-
nantor, or compel the principals
to live together as man and wife ;
Heed V. Garman, 3 Daly, 414.

Although it is not requisite that
money or money's worth should
actually have been given by the
purchaser, it must at least appear
that he did some act on the faith
of the sale, by which his position
was varied for the worse, and which
cannot be retracted ; M'Leod v.
The National Bank, 42 Missis
sippi, 99. The main current of
decision is that the existence of
an antecedent debt is not a valu-
able consideration for the trans-
fer of real or personal estate as
security for its payment; Morse
V. Godfrey, 3 Story, 364, 369.
There is no consideration moving
from the creditor, who gives no-
thing for what he receives ; John-
sow V. Graves, 21 Arkansas, 557 ;
JSalstead v. The Bank of Ken-
tucky, 4 J. J. Marsh. 554 ; Morse v.
Godfrey, 3 Story, 363, 390 ; Gar-
rard V. The Pittsburgh & Con-
nellsville B. R. Co., 5 Casey, 154,
159, 164 ; Caryy. White, 52 New
York, 138 ; Painter v. Zane, 2
Gratton, 262 ; Upshaw v. Har-
grove, 6 Smedes & Marshall, 292 ;

Boone v. Barnes, 23 Mississippi,
136.

In Garrardv. The Railroad Co.,
5 Casey, 154, 160, Lewis, J. C, said,
" There is no evidence to show that
any valuable consideration passed
from Garrard at the time of the de-
livery of the bond to Mm. It is not
pretended that he paid anything for
it, nor is it alleged that he received it
in payment of the pre-existing debt.
It was received merely as collateral
security for it, without any agree-
ment whatever to forbear or to
extend the time of payment. His
right of action was not suspended
for an instant. If he loses the
bond, he sustains no actual loss,
because he is left in the condition
he was in before he took it. If he
delaj'ed recovering his deposit
from Larimer, it was his own
voluntary act, and, under the evi-
dence, cannot be placed to the ac-
count of the bond. The law of
Pennsylvania is well settled, that
the holder of a negotiable instru-
ment, received merely as collateral
security for a pre-existing debt,
without any new and distinct con-
sideration, is not a holder for a
valuable consideration, so as to
exclude a recovery by the owner
on showing that the transfer was
made without authority." The sub-
ject matter in this instance was a
bond payable to bearer, but the
principle applies a fortiori where
land is in question. In Ashton's
Appeal, 23 P. P. Smith, 153, 162,
Sharswood, J., said, " that a credi-
tor who takes a mortgage, note, or
other security, merely as a secur-
ity for a pre-existing indebtedness.

84

BONA FIDE PURCHASERS.

and not for money advanced at the'
time, is not a purchaser for value."
In like manner, a creditor who
receives a chattel as security for a
pre-existing debt, must stand or
fall by the debtor's title, and ac-
quires no right as against the true
owner, or one from whom the chat-
tel was obtained by fraud ; Buffing-
ton V. Gerrish, 15 Mass. 156 ;
Hodgden v. Eubbaj-d, 18 Vermont,
504 ; Poor v. Woodburn, 25 Id.
235; Clark v. Flint, 22 Pick. 231.
It is, nevertheless, held, in some
of the States, that the endorsement
of a bill or note as security for a
pre-existing debt, is a negotiation
for value, which frees the instru-
ment from antecedent equities ;
Culver V. Benedict, 14 Gray, 7 ; 2
Am. Lead. Cases, 251, 5 ed.; Allaire
V. Hartshorne, 1 Zabriskie, 665 ;
see Baggaly v. Gaither, 2 Jones'
Eq. 80 ; Reddick v. Jones, 6 Iredell,
109 ; Ingham v. Kirkpatrick, 6 Ire-
dell's Eq. 465 ; Ealderby v. Blum,
2 Dev. & Bat. Eq. 51 ; but these
decisions turn on the favor shown
to the circulation of commercial
paper, and are not in point when
the subject matter is not negotiable
in the sense of the law merchant.
See Hart v. The Bank, 33 Ver-
mont, 252 ; Myers v. Condit, 8
C. E. Green, 313 ; Manning v.
M'Clure, 36 Illinois, 490.

In Babcock v. Jordan, 24 Indi-
ana, 14, the execution of a mort-
gage as security for an antecedent
debt, was, nevertheless, held to
render the mortgagee a purchaser
for value, within the meaning of
the recording acts. See Anketel
V. Converse, 18 Ohio, N. S.

The question, whether a convey-

ance from a debtor to a creditor is
security or payment, is to some ex-
tent one of fact; but satisfaction
can only result from an agreement
to that effect, and if all that ap-
pears is that a deed was executed
by one party and accepted by the
other, in consideration of an antece-
dent debt, the latter cannot be re-
garded as a purchaser for value.
See fJjpsAaw V. Sargroue, 6 Smedes
& Marshall, 292; Boone v. Barnes,
23 Mississippi, 136 ; 2 Am. Lead.
Cases, 268,5 ed. Prima facie, such
a transfer is collateral security, and
the onus is on him who sets it up as
payment ; Ashton's Appeal, 23 P.
F. Smith, 153, 162; The Bank v.
Godfrey, 23 Illinois. So one who
alleges that he gave time in con-
sideration of the transfer of land,,
goods, or securities, must make out
his case affirmatively ; and the mere
fact that the property was de-
livered on account of the debt, is
not sufficient ; Kirkpatrick v.
Muirhead, 4 Harris, 123 ; Gerrard
V. The Bailroad Co., 5 Casey,
154; The Pittsburg Bailroad Go.
V. Barker, lb. 160 ; Ashton^s Ap-
peal.

It is universally conceded that
a cotemporaneous loan or sale, is
a valuable consideration for any
transfer that may be made as secur-
ity, ante, 32 ; Gonard v. The Atlantic
Ins. Co., 1 Peters, 84; Kiersted.
V. Avery, 4 Paige, 114; Martin v.
Jackson, 3 Casey, 504, 509 ; 2
AmericanLead. Cases, 235,5 ed. It
is on this ground that an advance
on the faith of a mortgage, operates
as a purchase for value, and the
principle does not apply to a
pledge or mortgage for an antece-

BASSET V. NOSWORTHY.

85

dent debt, unless there is some
new consideration ; The Railroad
Co. V. Barker, 5 Casey, 160 ; The
Railroad Co. v. Garrard.,Vo. 154.
In Olidden v. Hunt, 24 Pick.
221, a mortgagee with notice of a
prior unregistered deed, assigned
the mortgage as security for a pre-
existing debt and a sum advanced
at the time, and it was held that
the grantee in the deed could not
redeem without paying both de-
mands, because the presumption
was that the assignee made the
new advance for the purpose of
obtaining an additional security
far the amount already due.

Whatever the rule may be
under these circumstances, it is
clear that the payment of a
substantial part of the price of
land in cash, will render' the gran-
tor a purchaser for value, although
the consideration consists as to
the residue of an antecedent debt
which is satisfied by the convey-
ance. See Percival v. Framp-
ton, 2 Crompton M. & R. 180 ; Cur-
' iisv.ieaue^, 15 New York, 13, 179;
Baggaly v. Gaither, 2 Jones' Eq. 80.

It is well settled that the surren-
der or abatement of a valuable
right, is a valuable consideration
for any right that may be received
as an indemnity or compensation.
Where time is given for the pay-
ment of a pre-existing debt in
consideration of the transfer of
real or personal property, and a
fortiori where such property is
received in satisfaction, the trans-
action will enure as a purchase for
value. See Nugent v. Gifford,
1 Atkyns, 463 ; Mead v. Lord
Orrery, 3 Id. 235 ; Ruth v. Ford, 9

Kansas, 11 ; Donaldson v. The
Stale Bank, 1 Devereux, 103 ;
The Ohio Life Ins. Go. v. Led-
yard, 8 Alabama, 866 ; Field v.
Schiefelin, 7 Johnson, 150, ante,
vol. 1. In the leading case of
Petrie v. Clark, 11 S. & R. 371,
this branch of the law was defined
by Ch. J. Gibson, and a transfer
of a note which formed part of the
assets of the estate, by an executor
in payment of his own debt, held
to give the creditor a valid title as
against the creditors and legatees,
if he took the instrument in good
faith and without notice of the
breach of faith on the part of the
executor. The weight of authority
is in accordance with this decision,
that a conveyance of land in satis-
faction, will free it from equities
that attached while the title was
held by the debtor ; Love v. Tay-
lor, 24 Mississippi, 567 ; The
Bank v. Godfrey, 23 Illinois, 579,
606 ; Donaldson v. The State Bank;
The Ohio Life Ins. Co v. Led-
yard. See Thompson v. Blan-
chard, 4 Comstock, New York,
303.

It was also said in Petrie v.
Clark, that although a pledge or
mortgage as security for an ante-
cedent debt, does not render the
creditor a purchaser for value, the
case is different when the time of
payment is extended by entering
into ail agreement for forbearance.
This conclusion is entirely consis-
tent with principle, and with the
authorities as to the negotiation of
commercial paper. Gross inade-
quacy of consideration is a badge
of fraud, and therefore at variance
with the character of a bona fide

86

BONA FIDE PURCHASERS.

purchaser. But such an inference
will not be drawn, unless there is a
manifest disproportion between
what is given and what is received.
This cannot be said when time is
given for the performance of an
obligation in consideration of a
pledge or mortgage, because the
delay may result in the loss of
the debt.

It is, notwithstanding, estab-
lished in New York, that taking a
bill or note in satisfaction of a pre-
existing debt, or in consideration
of an agreement for time, is not a
negotiation for value ; and the prin-
ciple applies a. fortiori where the
subject matter is goods or land
Bay V. Goddington, 5 Johnson
Ch. 54 ; 20 Johnson, 63T ; Evert-
sson V. Evertson, 5 Paige, 644
Dickemon v. Tillinghast, 4 Id.
215 ; Lawrence v. Clark, 39 New
York, 128; Van Henaon v. Rad-
cliff, IT Id. 580. The same rule
has been laid down in some of the
other States. See Powel v. Jeffries,
i Scammon, 38T ; Clark v. Flint,
22 Pick, 231 ; Wurmley v. Lowry,
1 Humprey, 468 ; Ingram v. Mor-
gan, 4 Id. 66 ; Sargent v. Sterne,
22 California, 159. And the dicta
in Mungis v. Cordett, 8 C. E.
Green, 313, indicate that it pre-
vails in New Jersey when the ques-
tion grows out of the conveyance
of real estate, although not when a
negotiable instrument is involved.
See Wheeler v. Kirtland, 9 C.
E. Green, 555; Allaire v. Harts-
home, 1 Zabriskie, 665 ; Orme v.
Roberts, 38 Texas, 68. But it
is admitted, even under the course
of decision, that where the credi-
tor cancels or surrenders one se-

curity in consideration of the
transfer of another, in the shape of a
mortgage or negotiable promissory
note, it is a purchase for value ;
Padget v. Lawrence, iO Paige,

1 TO ; Youngs v. Lee, 12 New York,
551 ; Meads v. The Merchants'
Bank, 25 Id. 240 ; Struthers v.
Kendall, 5 "Wright, 214, 218 ; see

2 Am. Lead. Cases, 223, 240, 5 Am.
ed. ; Ooodman v. .Simonds, 20
Howard, 343, 311. The distinc-
tion seems to have originated in
the wish to prevent fraud and per-
jury, and can hardly be sustained
on any other ground. The right
to proceed to judgment and execft-
tion against a debtor, is a security
that may be as efi'ectual as a bond
or a note; and when it is ex-
tinguished by taking land or goods
in satisfaction, the creditor ceases
to be such and becomes a pur-
chaser. See Purcell v. Dunbar, 64
Barb. 239 ; Thompson v. Blan-
chard, 4 New York, 303. Accord-
ingly, where the recitals in a deed
of confirmation showed that the
previous conveyance was given in
satisfaction, the Vice Chancellor
said, that the creditor had parted
with his remedy against the debtor,
and was consequently a purchaser
for a valuable consideration, al-
though the consideration was the
cancellation of a precedent debt ;
Governeur v. Titus, 1 Edward's
Ch. 4TT; 6 Paige, 345; but the
case was determined on another
ground in the court above.

To render a promise to give time

I effectual as a consideration, it must

specify how long the delay is to

endure, and a promise to forbear

for a short time, or for some time,

BASSET V. NOSWORTHT.

87

or even for a reasonable time, is
not valid, because there are no
means of reducing it to certainty,
and the creditor may bring suit the
next hour ; Sidwell v. Evans, 1
Penrose, & Watts, 385 ; Lansdale
V. Brown, 4 Washington C. C. R.
151 ; The Railroad Go. v. Barker,
5 Casey, 160, 166. It would, never-
theless, appear, that forbearance in
pursuance of request to that effect,
ma}'^ be a valuable consideration
for the pledge of goods, land, or
securities as an inducement to
comply with the request, although
the creditor did not promise to for-
bear, and might have proceeded to
collect the debt; Atkinson v.
£roofcs, 28 Vermont, 569; Griswold
V. Davis, 31 Id. 394; Whiting v.
The Springfield Bank, 8 Sandford,
222. A request followed by per-
formance, constitutes a contract.
See Powers v. Bumcratz, 10 Ohio,
N. S. 272 ; 2 American Lead. Cases,
110, 5 ed. ; Rowan v. Adams, 1
Smedes & Marhall's Ch. 45.

The principle is the same whether
the conveyance is directly to the
creditor or to one in trust for him ;
and it is accordingly well settled,
that an assignee for the benefit of
creditors is subject to all equities
that would have been valid as
against the assignor ; 1 American
Leading Cases, 52, 5 ed. ; Willis v.
Henderson, 4 Scammon, 13 ;
Twelves v. Williams, 3 Wharton,
485 ; In re Fulton's Estate, 1 P.
F. Smith, 211 ; Spackman v. Ott,
15 Id. 131 ; Griffin v. Marquandt,
17 New York R ; Van Heusen v.
Radcliff, lb. 580 ; Haggerty v.
Palm.tr, 6 Johnson's Ch. 431 ;
Johnson v. Gowen, 60 Barb. 48 ;

Holland v. Graft, 20 Pick. 32 ;
Clark V. Flint, 22 Id. 231 ; Mel-
Ion's Appeal, 8 Casey, 121. " The
creditors," said Gibson, C. J., in
delivering the opinion of the court
in Twelves v. Williams, " have
not released ; and the interests of
the parties remain as they were at
the date of the assignment. The
assignees being instruments se-
lected by the debtor, and having
no beneficial interest as such, stand
in no personal or distinctive equity ;
for though a pecuniary considera-
tion is always inserted in the deed,
where they are not creditors (the
necessity of which, to protect the
transaction from the statutes of
Elizabeth, is shown in Roberts on
Fraudulent Conveyances, 429, and
recognized in Howry v. Miller, 3
Penn. Rep. 381), it is merely
nominal, and not that substantial
sort of equivalent which gives a
claim to something in return.
Their equity, if any, must be the
equity of the creditors represented
by thera ; and what substantive or
formal advantages have these sur-
rendered in compensation for the
benefits expected from the assign-
ment ? No such surrender is pre-
tended. Nor are they placed in
the category of purchasers by
their character or position. That
they are not protected as such by
the recording acts, was declared in
Heister v. Fortner (2 Binn. 40) ;
and though it was said in Petrie
V. Clark (11 Sergeant & Rawle,
371), that the extinguishment of
a debt is a valuable consideration
for a thing taken in satisfaction of
it, the acceptance of it as a secur-
ity without a stipulation for for-

BONA FIDE PPRCHASERS,

bearance, was held to be otherwise.
So also in Eamsay's Appeal (2
Watts, 232), creditors were held
to stand exactly in the equity of
their debtor. I know of no case
in which the abstract existence of
debts was held to be a valuable
consideration for a transfer of
property to trustees for distribu-
tive payment, except Bayley v.
Greenleaf, to be presently noticed.

" In Lord Paget's Case (1 Leon.
194), it was held, that the mere
destination of property to payment
of the grantor's debts, by a general
assignment to a stranger, is not a
consideration even to raise a use
on a covenant to stand seised, and
consequently, not to pass even the
legal title ; and there is therefore
nothing to sustain it, under the
statute of Elizabeth, against a
creditor or a purchaser, though it
is good against an heir ; Leach v.
Leach (Oh. Ca. 249). But where
the creditors are party to the deed,
there is a clear valuable considera-
tion in the forbearance of suit and
mutual accommodation expressed
by the terms, or implied by the
nature of the transaction ; Roberts
on Fraud, Con. 431. In the case
before us, the creditors not having
become parties to the transaction,
by performance of the condition,
which alone could make them so,
were bound in the meantime to no
forbearance or accommodation
whatever."

This language must be taken
with some qualification. It is im-
material that the creditors are
parties to the transaction-, or that
it is ratified by them, unless they
■relinquish some right or enter into

an engagement on the faith of
the assignment. A release of the
debt in consideration of such a
transfer, may on a principle, already-
stated, be a valuable consideration ;
but it must still appear that the
assignment purported to confer a
good title to the specific land or
chattels which the assignee claims
to hold as a purchaser. In Clark
V. Flint, 22 Pick. 231, a bill was
filed to enforce an equitable lien
on a vessel, arising under a contract
with one Flint, and the answer
averred that Flint made a general
assignment of his property, in-
cluding the vessel, in trust for the
benefit of his creditors, and that
the defendants thereupon accepted
the property and released the debt ;
and it was held, that as the assign-
ment was general of Flint's right
and title, it could not be inferred
either that he meant to confer a
right to the vessel discharged from
the trust, or that the defendants
would not have released if they
had known that the trust existed.
It is, moreover, plain, that a re-
lease by a creditor will not entitle
him as a purchaser, unless it is
so worded as to take eflfect at
once, for if it rests merely in
the covenant, and the assig-
nor's title fails, equity will give
relief by declaring the covenant
invalid. Such a covenantor is at
the most in the situation of
a purchaser who has given a
bond or other security instead
of paying ; Ludwig v. Highley, 5
Barr, 132, 140. It would also ap-
pear from the language held in
this instance, that a general assign-
ment of all a debtor's property

BASSET V. NOSWORTHT.

89

will not pass the. title to lands or
chattels which he holds in trust, or
that belong in right and equity to
another, unless they are so clearly
designated or described as to leave
no doubt of the design ; because
the court will not infer that an in-
strument was made with fraudu-
lent intent where the language ad-
mits of a different interpretation ;
ante, 72; Smith v. The Bank, 21
Alabama, 125.

"It is," said Bartley, J.,in White
V. Denman, 1 Ohio, N. S. 112, "a
princi pie of familiar application in
equity jurisprudence, that a spe-
cific equitable interest in real es-
tate, whether it be created by an
executory agreement for the sale
and conveyance of land, or by a
deed so defectively executed, as
not to pass the legal estate, but
treated in equity as a contract to
convey, or even a vendor's lien, is
upheld by courts of equity, and
uniformly takes priority, not only
over judgment liens, and assign-
ments in bankruptcy, but also as-
signments for the benefit of credi-
tors generally. This doctrine was
recognized in Manley v. Hunt et
al., 1 Ohio, 25*7, and has been af-
firmed by a series of adjudications
in this State ever since ; Norton v.
Beaver, 5 Ohio, 181 ; Barr v.
Hatch, 3 Ohio, 538; Minns v.
Morse, 18 Ohio, 568. The same
principle is well established in
other states ; Ellis v. Townsley, 1
Paige, 280 ; Oouveneur v. Titus, 6
Paige, 341 ; Hoagland v. Latour-
ette, 1 Green's Ch. 254 ; Eppes v.
JRandolph, 2 Calls, 103, 154; Eve-
rett V. Stone, 3 Story, 447 ; Lodge
V. Tysley, 4 Simons, 70 ; 2 Story's

Eq. § 1503; and has always pre-
vailed in England ; Finch v. Win-
chelsea, 1 Pere Wms. 277; Prior
V. Panpraze, 4 Price, 99 ; Legard
V. Hodges, 1 Vesey, Jr. 477."

In Bayley v. Oreenleaf, 7
Wheaton, 46, a vendor's lien for
unpaid purchase money was held
to be invalid as against creditors,
and, therefore, against one to
whom the vendee made an assign-
ment in trust for the payment of
his debts, and the same rule pre-
vails in some of the State tribunals ;
Dunlap V. Barnet, 5 Smedes & Mar-
shall, 702 ; Bichson v. Bichson, 2
Grrattan, 497 ; vol. 1, notes to Mack-
reth v. Symmons ; but these decis-
ions proceed on the notion that a
court of equity ought not to give
a preference in a contest between
creditors, and do not necessarily
conflict with the main current of
decision. But this cannot be said
of Wickham v. Martin, 13 Grat-
tan, 427, where it was held that a
fraudulent sale could not be
avoided, after the goods had been
transferred to an assignee for the
benefit of creditors. " Such an as-
signee had always been regarded
in Virginia as a purchaser for
value."

It is equally well settled, that a
creditor does not become a pur-
chaser by obtaining judgment, or
levying on the real or personal es-
tate of a debtor. Such a lien is
therefore subject to every claim
that could have been maintained
against the defendant in the judg-
ment; Jackson Y. Town, 4: Cowen,
599 ; Jackson v. Post, 9 Id. 120 ;
15 Wend. 588 ; Buchan v. Sumner,
2 Barbour's Chancery, 1 65 ; White

90

BONA FIDE PURCHASERS.

V. Denman, 1 Ohio, N. S. 110;
Coleman v. Cock, 6 Randolph,
618 ; Ash y. Livingston, 2 Bay,
80 ; Massey v. M'llvain, 2 Hill's
Ch. 426 ; Orth v. Jennings, 8
Blackford, 420 ; Williams v. 3bl-
Ungsworth, 1 Strobhart's Equity,
103 ; The Bank v. Gourdin, 1
Spear's Equity, 20 ; The Bank v.
Campbell, 2 Richardson's Equity,
179 ; Jackson v. Dubois, 4 John-
son, 216 ; Cover v. Black, 1 Barr,
493 ; Shryock v. Wagoner, 4 Casey,
430; l^a^Hnsv. PFasseZZ, 15 Arkan-
sas, 73, 95 ; Hacket v. Colladay,
32 Vermont, 97; Hart v. T/ie
Bank, 33 Id. 252 ; Field v. Reams,
42 Id. 106 ; (?reen. v. ^ZZen, 45
Georgia, 205.

It is not j ust that property which
belongs in equity and good con-
science to A., should be taken
for the debt of B., and a chancellor
will not suffer the lien which
the judgment creditor has acquired
on the legal title, to be used as a
means of producing such a result ;
Arnold v. Patrick, 6 Paige, 310,
815 ; Lane v. Ludlow, lb. 316,
note ; Thompson v. Bdelin, 2 Har-
ris & Johnson, 64 ; Wilks v. Har-
per, 2 Barb. Ch. 338, 355 ; Brown
V. Pierce, 7 Wallace, 205 ; Baker
V. Morton, 12 Id. 150 ; Brace v.
The Duchess of Marlborough, 2
P. Wms. 491 ; ante, vol. 1, 599 ;
Conrad v. The Atlantic Ins. Co.,
1 Peters, 384, 444; Martin v.
Jackson, 3 Casey, 504 ; Cover v.
Black ; Kiersted v. Avery, 4 Paige,
14 ; Mooney v, Dorsy, 7 Smedes &
Marshall, 22 ; Rogers v. Oibson, 4
Yeates, 111 ; Heister v. Fortner, 2
Binney, 40.

" At law a judgment is a gene-

ral lien upon all the legal interest of
the debtor in his real estate, but
in chancery that general lien is
controlled by equity, so as to pro-
tect the rights of those who are
entitled to an equitable interest in
the land or in the proceeds thereof ; "
White V. Carpenter, 3 Paige, 217,
266. In re Howe, 1 Id. 125.

It follows that a purchaser under
an execution issued on the judg-
ment, is subject to every equity of
which he had notice, and that
would have been valid as against
the judgment debtor ; White v.
Carpenter ; Moyer v. Hinman, 3
Kernan, 180; Sieman v. Schurk,
29 Wew York, 598, 613. This is
equally true whether the purchase
is made by a third person or by
the plaintiff in the judgment ; Eells
V. Towsley, 1 Paige, 280 ; Oovern-
eur V. Titus, 6 Id. 347. In Ooo-
erneur v. Titus, a deed was ac-
cordingly reformed so as to include
land which had been omitted by
mistake, as against one who bought
with notice, at a sheriff's sale, un-
der a judgment which had been
obtained against the grantor sub-
sequently to the execution of the
deed.

The rule applies even when the
judgment is confessed for advances
made or goods sold at the time.
Such a transaction may operate
as a purchase, but if so, it is a pur-
chase of all the debtor's right ti-
tle, and interest, which conse-
quently does not confer any right
that could not have been enforced
by him. This distinguishes a
judgment creditor from one who
parts with value on the faith of a
pledge or mortgage of a specific

BASSET V. NOSWORTHT.

91

or ascertained tract of land, or
chattel ; Cover v. Black, 1 Barr,
493. See Hubett v. Whipple, 57
Barb. 224. A judgment creditor
may, therefore, be restrained by-
injunction from proceeding to levy
and sell the legal estate to the
prejudice of one who is equitably
entitled, or the latter may give
notice at the sale, and thus affect
the conscience of the purchaser.

It does not vary the application
of this principle that the judg-
ment creditor is ignorant of the
prior equity or unregistered deed,
and could not ascertain its exis-
tence by consulting the record or in
any other way ; Rodgers v. Bonner,
45 New York, 379. The rule and its
reason were clearly stated by Chief
Justice Gibson in Gouerv. Black, I
Barr, 493. " It was," said he, " ruled
in Rogers v. Gibson, 4 Yeates, 111,
and Huston v. Fortner, 2 Bin. 40,
that a judgment creditor is not a
purchaser within the recording act
of 1 7 75, and I take the consequence
to be that he is not entitled to no-
tice. Mr. Justice Yeates took the
broad ground, that the judgment
creditor was not within the pur-
view, because he had lent his
money, not specifically on the se-
curity of the land, as a mortgagee
lends, but on the security of both
person and property ; and his prin-
ciple is fully borne out by the
cases to which he refers for it. In
Finch V. Winchelsea, 1 P. Wms.
227, it was held, that an agree-
ment, on valuable consideration,
to convey, defeats a subsequent
judgment in equity ; and I, conse-
quently, take it, that an actual
conveyance, though not recorded,

defeats it at law. ' It was granted,'
says the reporter, ' that if Lord
Winchelsea, the covenantor, had
made a mortgage of the premises
for valuable consideration, and
without notice, such mortgage, in
regard that he might have pleaded
his mortgage, and would have been
as a purchaser without notice,
should have held place against the
intended purchaser, for then the
money would have been lent on
the title and credit of the land,
and would have attached on the
land ; which would not be so in the
case of a judgment creditor, who
(for aught that appears) might
have taken out execution agairifet
the person or goods of the party
that gave the judgment; and a
judgment is only a general secu-
rity, not a specific lien on the
land.' "

" In Brace v. The Duchess of
Marlborough, 2 P. Wms. 491, the
principle is expressed in still more
pointed terms. ' No man,' it is
said, 'can call a judgment credi-
tor a purchaser ; nor has such
creditor any right to the land ; he
has neither Jms in re, nor ad rem;
and, therefore, though he release
all right to the land, he may ex-
tend it afterwards. All that he
has by the judgment is a lien on
the land, but non constat that he
will ever make use thereof, for he
may recover the debt out of the
goods of the cognisor by fieri
facias ; or he may take the body,
and then, during the defendant's
life, he can have no other execu-
tion; besides, the judgment credi-
tor does not lend his money on
the ijnmediate view or contempla-

92

BONA FIDE PURCHASERS.

tion of the cognisor's real estate ;
nor is he deceived or defrauded,
though the cognisor of the judg-
ment had before made twenty
mortgages of his real estate.' The
same principle is found in an anony-
mous case. 2 Ves. Sen. 662. From
tliese authorities it follows, that a
judgment creditor stands on the
foot of his debtor."

It is established, in accordance
with these decisions, that a judg-
ment against a vendor who has en-
tered into a written contract of
sale is valid only as it regards the
unpaid purchase-money. On ten-
dering the amount due, the vendee
is- entitled to a conveyence free
from the judgment lien, and will
be credited with payments made
subsequently to the judgment, un-
less he had actual notice ; Thomp-
son V. Edelin, 2 Harris & John-
son, 64; Parkes v. Jackson, 11
Wend. 442 ; Mayer v. Senman, 3
Kernan, 180.

It results from the same princi-
ple that an equitable or imperfect
lien or title which would be good
against the defendant in a judg-
ment, is equally good against
the plaintiff, or a purchaser with
notice, under the judgment. Mor-
ris V. Mowatt, 2 Paige's Ch. 586 ;
Churchill v. Morse, 23 Iowa, 229 ;
Coster V. The Bank of Georgia,
24 Alabama, 3Y1; O'Bourke v.
Conner, 39 California, 442. An
unrecorded deed is within this
rule, and so is an unrecorded mort-
gage, where a different rule has not
been established by the Legisla-
ture; Lappington v. Oeschli, 49
Missouri, 244 ; Knell v. The
Building Association, 34 Mary-

land, 67 ; Severs v. Delaschumitti,
11 Iowa, 174; Hampton v. Levy,
1 M'Cord, Ch.lOT.lll ; Valentine
V. Havener, 20 Id. 133 ; Porter v.
M'Dowell, 48 Id. 93 ; Stillwell v.
M' Donald, 39 Id. 282; Bell v.
Evans, 10 Iowa, 353. A failure to
record a grant or incumbrance is
material only as it regards one who
has been injured by the omission.
A purchaser may justly complain
of such a neglect, because he presu-
mably gave value on the faith of
the record, but such an allegation
cannot be made bj' a judgment
creditor. For a like reason, an
equitable appropriation or assign-
ment of a chattel, may be valid
against assignees in bankruptcy,
and judgment creditors, where it
would be set aside at the instance
of a purchaser ; Langton v. Hor-
ton, 1 Hare, 549 ; Mitchell v. Win-
slow, 2 Story, 260.

It was, nevertheless, held in
Wlieeler v. Kortland, 9 C. E.
Green, 555, that the equity of a
judgment creditor is equal to that
of a prior equitable mortgagee for
a precedent debt, and that he
is consequently entitled to pri-
ority as having the law, although
the rule is different where the
consideration of the mortgage is a
cotemporaneous sale or advance.
The same point was decided in
Dwight V. Newell, 3 New York,
185. It is no doubt true that
creditors at large have an equal
claim on the consideration of a
chancellor, although their demands
originated at different periods.
But it is not less well established
under the authorities, that a spe-
cific transfer or appropriation, al-

BASSET V. NOSWORTHT.

93

belt as a security for an existing
debt, should be preferred to a sub-
sequent general lien. For as the
debtor cannot rightfully transfer
to a third person what he has al-
ready bestowed on the creditor, so
such a wrong will not be done
through the act of the law.

The subject is within the con-
trol of the Legislature, which may
provide that deeds or mortgages
shall not take effect as against
creditors until they are placed on
record. Such is the rule as it re-
gards mortgages in Pennsylvania,
Ohio, and Illinois ; Mayham v.
Coombs, 14 Ohio, 428; Jacques v.
Weeks, T "Watts, 261; Uhler v.
Sanderson, 11 Harris, 110; Stan-
ley V. Roberts, 13 Id. 148; Bloom
V. Noggle, 4 Id. 45 ; Holliday v.
The Bank, 16 Id. 533; White v.
Denman, 1 Ohio N. S. 110; Mc-
Fadden v. Worthington, 45 Illi-
nois, 362; Oenter v. Wiseley, 41
Id. 483 ; and it extends in some of
the States to all instruments which
affect the title to real estate ;
Davidson v. Cowen, 1 Dev-
ereaux, Eq. 470 ; Stanley v. Per-
ley, 5 Maine, 399 ; Odiorne v. Ma-
son, 9 New Hampshire, 24 ; Coffin
V. Ray, 1 Metcalf, 212; M'Clure
V. Thistle's Ex'ors, 2 Grattan,
182 ; Hopping v. Burnam, 2 Iowa,
109 ; Brown v. Tuthall, 1 Id. 189 ;
Hays V. M'Guire, 8 Yerger, 92;
Miller v. Hstell, lb. 452 ; Edwards
V. Brinker, 9 Dana, 69; M'Cul-
lough V. Somerville, 8 Leigh, 415 ;
Mallory v. Stodder, 6 Alabama,
801 ; Smith v. Lurch, 9 Id. 208 ;
Ce7iter v. The Bank, 22 Id. 743.
But as such an interpretation con-
travenes the rule that creditors

are not purchasers, it will not be
adopted unless such is clearly
the meaning of the statute ; The
Bank of Michigan v. Carpenter,
7 Ohio, 21 ; Lake v. Dove, 10 Id.
415 ; Valentine v. Havener, 20
Missouri, 1 33 ; Davis v. Ownsby,
14 Id. 176.

In applying such an enactment,
those only are to be regarded as
creditors who obtain a lien by
judgment or attachment before
an antecedent deed or mortgage is
recorded, unless the words are so
broad as manifestly to include
creditors at large ; Martin v. Dry-
den, 1 Oilman, 177; Massey v.
Westcott, 40 Illinois, 160.

The decisions vary in each State
with the language of the record-
ing acts, and while a judgment
creditor has precedence in Illi-
nois of equities which do not ap-
pear of record ; Massey v. Wescott,
40 Illinois, 160, an unregistered
equitable mortgage may be valid
in Alabama against the lien of a
judgment, although registry is es-
sential to the validity of a mort-
gage which is so executed as to
pass the legal title ; Fash v. Rave-
sies, 32 Alabama, 451.

Although the lien of a judg-
ment is limited to the estate of the
debtor, and does not bind any right
that could not have been enforced
by him, this rule does not unneces-
sarily apply to a purchaser under
the judgment. The right of a
buyer to protection against latent
defects, which he has no means of
ascertaining, is the* same whether
the sale is voluntary or the act
of the law. It follow s that a pur-
chase atv a judicial sale perfected

94

BONA FIDE PURCHASERS.

by the execution of a deed dis-
charges prior equities, and antece-
dent grants or mortgages which
have not been duly recorded, and
are not brought home to the pur-
chaser by notice ; Governeur v.
Titus, 6 Paige, 251 ; Jackson v.
Town, 4 Cowen, 599 ; Jackson v.
Post, 9 Id. 120; 15 Wend. 588;
Jackson v. Chamberlain, 8 Id.
620 ; Waldo v. Bussell, 5 Missouri,
387 ; Harrison v. Carhelin, 23 Id.
126 ; Den v. Hickman, 1 Green,
43 ; Scribner v. Lockwood, 9 Ohio,
184,; The Ohio Life Ins. Go. v.
Ledyard, 8 Alabama, 866 ; Orth y.
Jennings, 8 Blackford, 420 ; Heis-
ter V. Fortner, 2 Binney, 40, 45 ;
Mann's Appeal, 1 Barr, 24 ; Kellam
v. JanSon, 5 Harris, 46T; Stewart
\. Freeman, 10 Harris, 120,123;
Paine v. Moreland, 15 Ohio, 435 ;
Rogers v. Hassey, 36 Iowa, 66.
The rule applies although the
judgment creditor becomes the
purchaser ; and exchanges receipts
with the sheriff, or pays the money
to him, and receives it back in
payment of the judgment debt ;
Wood V. Chopin, 3 Kernan, 505 ;
Gower v. Doheny, 83 Iowa, 39.
Such a payment not only includes
costs in addition to the amount
originally due, but changes the
position of the creditor for the
worse by satisfying the judgment.
In Gower v. Doheny, Day, C. J.,
said that a purchaser at sheriff's
sale takes the land discharged of
every claim or equity which would
be invalid against an ordinary
purchaser, and that the rule ap-
plies whether the judgment credi-
tor is the purchaser, or the prem-
ises are sold to a stranger. The

point has been decided the other
way in several instances ; Arnold
V. Patrick, 6 Paige, 310, 316 ; Sar-
gent v. Storm, 22 California, 359 ;
Williams v. Eollingsworth, Strob-
hart's Eq. 103 ; but seemingly with-
out sufficient consideration.

The question could not arise at
common law where the right of a
judgment creditor did not extend
beyond the debtor's, and was
limited to taking the rents and
profits under a levari facias or ele-
git. Such a remedy is not analo-
gous to that afforded in the United
States, where land is assets for the
paj^ment of debts, and may be
sold absolutely under a fi. fa. or
venditioni exponas. The common
law doctrine was, nevertheless, in-
voked in Freeman v. Hill, 1 Dev.
& Bat. Eq. 389 ; Polk v. Gallant,
2 Id. 395, as a reason for holding
that a purchaser under an execution
is subject to every equity that
would have been binding on the de-
fendant in the judgment, and is not
precluded by its lien ; Freeman v.
Mibani, 2 J ones Eq.ii. A similar
view was taken in The Bank of
South Carolina v. Campbell, 2
Richardson, Eq. 279. See Wil-
liams V. Eollingsworth. The policy
of this doctrine is exceedingly
questionable, because it has a mani-
fest tendency to discourage bid-
ding, and cause the property to be
sold under value.

A purchaser under a judgment
is not entitled as such to protec-
tion against any equity or imper-
fect title, of which he had notice
at or before the sale ; Prescott v.
Heard, 10 Mass. 60; Davis v.
Ownsfey, 14 Missouri, 170; Valen-

BASSET V. NOSWOKTHT.

95

tine V. Havener, 20 Id. 133 ; Chap-
man V. Coats, 26 Iowa, 288. A
mortgage maj'- consequently be
valid as against such a purchaser,
although not registered until af-
ter the judgment ; Sappington v.
Oeschli, 49 Missouri, 246. So he
■will not acquire a title as against
a (grantee who is in possession,
although under an unrecorded
deed.

It is, nevertheless, well settled,
that the title of a purchaser at a
judicial sale relates back to the
judgment, and is co-extfensive with
the judgment lien. It will not,
therefore, be impaired by notice
that the premises are subject to an
unrecorded mortgage, which is in-
valid as against the judgment
creditor ; Uhler v. Hutchinson, 1 1
Harris, 110 ; Calder v. Chapman,
2 P. F. Smith, 859, 362 ; Jacques
V. Weekf, 1 Watts, 261, 2T0; Hen-
derson V. Downing, 24 Mississippi,
106. Notice is material only
•Where the sale is wrongful or
will prejudice some right that
ought to be preserved. The rule
that what can rightfully be sold
may as rightfully be bought, is as
true of a purchaser with notice at
a judicial sale, as it is of a pur-
chaser with notice from a purchaser
without notice ; Pollard v. Cocke,
19 Ala. 188 ;De Vendel v. Hamilton,
21 Id. 156; Fash v. Ravesies, 32
Id. 451 ; M'Faddenv. Worthington,
45 Illinois 362; Massey v West-
cott, 40 Id. 160 ; Ginteau v. Wisely,
47 Id. 433. " The notice given at
the sheriff's sale," said Knox, J.,
in Uhler v. Hutchinson, 11 Har-
ris, 110, 113, " could not affect the
judgment creditor or the purchaser.

As the one had the legal power to
sell the estate without reference to
the mortgage, so the other had the
right to buy in disregard of it,
either as a conveyance or a lien."

"It has been adjudicated by this
court," said Sergeant, J., in Jacques
V. Weeks, 261, 2T0, "that a judg-
ment creditor takes priority over
an unrecorded mortgage; Seviple
V. Burd, 7 Serg. & Rawle, 290;
Friedly v. Hamilton, 17 Id. 70.
If so, a purchaser at sheriff's sale,
under such judgment, cannot be
affected by a notice of a mortgage,
which notice is given subsequently
to the judgment ; for if he could, it
would render the mortgage not
available. It would give it a pri-
ority over the judgment, and take
away the value of the judgment to
the amount of the mortgage. No-
tice to a purchaser at sheriff's sale
may affect him with a trust, as in
Barnes v. M' Clinton, 3 P. R. 67,
because that is in nature of a con-
veyance, and conveyances, though
not recorded, transfer the land free
of subsequent judgments. But it
is otherwise with an unrecorded
mortgage. The judgment binds
the land, as if it remained in the
mortgagor, and the purchaser at
sheriff's sale is not affected by no-
tice of an unrecorded mortgage
given after the entry of the judg-
ment, but takes the land as clear
of it as he does of a trust of which
he has no notice." For a like rea-
son such a purchaser will not be
affected by an equity which was
obligatory on the defendant in the
judgment, unless it was also obliga-
tory on the judgment creditor.
Or to state the rule somewhat dif-

96

BONA FIDE PURCHASERS.

ferently, it must appear not only
that the purchaser had notice, but
that notice was also given to the
judgment creditor in a way to bind
his conscience, or that the equity
was valid as against him without
notice. It is, therefore, material
to determine when notice to the
plaintiff in a judgment will be re-
strictive of his right, and thus in-
directly affect one who buys sub-
sequently at a sheriff's sale.

In general, notice does not pre-
clude any step that may be re-
quisite to vindicate or perfect an
interest that has been already ac-
quired. What a chancellor re-
gards as wrongful is the acquisi-
tion of a right with knowledge
that it cannot be exercised con-
sistently with the rights of others.
It is because notice does not
operate retroactively, that a bona
fide purchaser or mortgagee may
take a convej^ance of an outstand-
ing legal title for the purpose of
excluding an equity which is not
made known to him until after
the completion of the sale; ante;
The principle is stated by Lord
Keeper Henly, in Belchier v. But-
ler, 1 Eden, 523, 530 : " The rule
of equity requires no more than
that the third mortgagee should
not have had notice of the second
at the time of lending the money ;
for it is by the lending the money
without notice, that he becomes an
honest creditor, and acquires the
right to protect his debt. But he
is not compelled to look for this
protection till his debt is in dan-
ger of being prejudiced ; and,
therefore, when that danger is first
discovered to him (whether it be

by suit in equity, or by any extra
judicial means), as the honesty of
his debt is not affected by the dis-
covery, so the right of protecting
that debt, and the efficacy of such
protection, are not prejudiced.
Hence arose the rule which per-
mitts the subsequent incum-
brancer to purchase pendente
lite."

For a like reason, if a creditor
can be affected by notice, it must
be given before the debt is con-
tracted, or at all events, before it
has passed into judgment. Where
a judgment lien has attached to
the exclusion of an unrecorded
deed or mortgage, it will not be
displaced by notice, nor will notice
render it inequitable to enforce
the lien ; Uhler v. Sutchinson, 11
Harris, 110; Calder v. Chapman,
2 P. F. Smith, 859, 362 ; Davey v.
Littlejohn, 2 Iredell's Equity, 495 ;
Pendleton v. Batten, 3 Conn. 406 ;
Washington's Lessee v. Trousdale,
Martin v. Yerger, 385 ; Lillard v.
Buckers, 9 Yerger, 64 ; Ouerrent
V. Anderson, 4 Randolph, 208 ;
Be Vendell v. Hamilton, 21 Ala-
bama, 156 ; Pollard v. Cocke, 19
Id. 188; Ginteau v. Wisely, 47
Illinois, 433. The better opinion
therefore seems to be that the
judgment creditor may take the
debtor's land in execution, al-
though he knew of the mortgage
before the case went to judgment;
and a purchaser under the writ
will not be affected by a notice
. given at the sale. So notice will
not operate retroactively to defeat
the lien of an attachment ; Stanly
v. Perley, 5 Maine 369 ; Emmer-
son V. Littlefield, 12 Id. 148 ;

BASSET V. NOSWORTHT.

97

Matthews v. Bemeritt, 22 Id. 312 ;
Coffin V. Bay, 1 Metcalf, 212;
Curtis V. Mundy, 3 Id. 405 ; Priest
V. Rice, 1 Pick. 164; Carter v.
Champion, 8 Conn. 548 ; Rogers
V. Jones, 8 New Hampshire, 264 ;
Garwood v. Garwood, 4 Halsted,
193 ; Martin v. Dryden, 1 Gilman,
181. And the weight of authority
is, that in a struggle for priority
among creditors at large, or be-
tween such a creditor and pur-
chaser, each may conscientiously
retain every legal advantage aris-
ing from his diligence or his oppo-
nent's neglect ; Davidson v. Cowan,
1 Devereux's Eq. 4Y0 ; Mayham v.
Coombs, 14 Ohio, 428 ; Bauey v.
Littlejohn, 2 J-abell 'Eq.i95; Pen-
dleton V. Batten, 3 Conn. 406 ;
Washington v. Trousdale, Mar-
tin & Yerger, 385 ; Lillard v.
Ruckers, 9 Yerger, 64.

" There is no equity," said Euf-
fin, J., in Davidson v. Coioan, 1
Devereux's Equity, 4^0, " against
a creditor, restraining him from
using all legal means to obtain a
preference and ultimate satisfac-
tion of his debt. The period of
contracting the debt is wholly im-
material. One creditor may justly
obtain satisfaction, although lie
knows that he thereby deprives his
debtor of the means of paying a
debt previously contracted. No-
thing but the actual divesting of
the debtor's estate, or a specific
valid lien on it at law, can defeat
a creditor. If he obtains his exe-
cution before an elder debt is
ripened into judgment, he may
satisfy himself. If he gets the le-
gal preference by his execution be-
fore a creditor by a mortgage per-

VOL. II — 1

fects his title by registration, he
may likewise satisfy himself. Each
has an equal equity, and one has
the law. He may keep it. The
case of a purchaser is entirely dif-
ferent. He has no equity if he
buys what he knows another can-
not sell."

The principle was stated with
equal clearness in Muse v. Let-
terman, 13 S. & R. U1. " The in-
tention," said Duncan, J., " of the
registerhig act, as to mortgages,
would be entirely frustrated, if no-
tice after subsequent debts con-
tracted, or security given, were to
postpone. If one, having notice
of an unregistered, unsatisfied
mortgage, colludes with the mort-
gagor, and gives him a credit for
the purpose of defeating such
mortgage, and obtains a security
on the mortgaged premises, this
would be a manifest fraud, and
oughtnot to prevail. But such fact
was not offered to be proved, but
merely that Smith had notice of
the unrecorded mortgage, after
the debt was contracted, and after
he had obtained his judgment
bond, but before it was entered on
record. His equity is equal, if not
superior to the equity of the mort-
gagee. He has the law on his side,
and his lien ought to prevail.
Where a man is affected with no-
tice of an unregistered instrument,
which the law requires should be
registered, it is on the ground of
fraud. A man cannot be said
to be guilty of fraud, who obtains
security for a debt contracted be-
fore he had notice, and equity will
not take from a fair creditor, any
legal priority, or even a plank,

98

BONA FIDE PURCHASERS.

which, iri a struggle between him
and another creditor, he has laid
hold of as a security."

The dicta in Pennsylvania are to
the same effect ; Jacques v. Weeks,
1 Watts, 261, 2Y0 ; Hulings v. Guth-
rie, i Barr, 123 ; Muscy. Letterman,
13 S. & R. 161; UJiler v. Hutch-
inson, 11 Harris, 110 ; Galder v.
Chapman, 2 P. F. Smith, 359, 362 ;
but the point was not actually be-
fore the court in these instances,
and what they actually determine
is, that notice after judgment is
inoperative. It was accordingly
held in Britton's Appeal, 9 Wright,
172, that notice of a mortgage be-
fore credit is given, will supply
the want of registry, although the
words of the statute are express
that " no mortgage, except for pur-
chase-monej', shall be a lien until it
is left for record." Strong, J., said,
that if " the party has notice before
changing his position, it is imma-
terial whether he is a creditor or a
purchaser ; and that, in the opin-
ion of the court, to give credit,
knowing that the debtor's estate
is subject to encumbrances which
have not been recorded, and
then proceed to a judgment and
execution which will render them
invalid, is as much at variance
with equity and good conscience
as if the same end was attained
by taking a deed or mortgage."
It is, nevertheless, conceded
that notice to the creditor, will not
afiect a bona fide purchaser under
a judgment obtained subsequently
for the debt, and it seems that no-
tice to the purchaser will not be
sufficient, unless he is also informed
that the creditor had notice.

It is held in like manner in Ala-
bama, that if the plaintiff in a
judgment has notice of a mortgage
before he acquires a lien, it will be
valid and operative against him,
notwithstanding the want of regis-
tration ; but this course of decision
depends on the language of the
statutes of that State ; Smith v.
Zurcher, 9 Ala. 208 ; Daniel v.
Sorrels, lb. 436 ; Wallis v. Bhea,
10 Id. 451 ; 12 Id. 646 ; Jordan v.
Mead, lb. 247 ; Wyatt v. Stewart,
34 Id. 720.

A different view prevails in Yir-
ginia, where notice, whenever given,
does not affect a creditor so as to
preclude him from exercising any
right which the law confers ; Guer-
rant v. Anderson, 4 Randolph,
198. "Though," said Carr, J.,
" a creditor has notice of an
unrecorded deed, he commits no
fraud by crediting the grantor
upon his general responsibility.
If, in the lawful pursuit of his
rights, he gets a lien on the prop-
erty by the delivery of an execu-
tion to the proper officer, as in the
case before us, or otherwise, hav-
ing equal equity with the party
claiming under tiie deed, he falls
within the settled rule of equity ;
that between parties having equal
equity, he who has the law also,
shall prevail. That the second
instruction of the judge would vio-
late this rule, is perfectly clear;
for, though the appellee was a pur-
chaser, and not a creditor, and in
that character, in an ordinary case,
would fall within the provisions of
the act in regard to purchasers,
yet being a purchaser under a sale
in behalf of a creditor, he holds

BASSET V. NOSWORTHT.

his rights and occupies his place
in this controversy ; otherwise, the
rights of a creditor would be of no
avail."

It has been held that even where
the statute expressly or impliedly
declares unregistered deeds and
mortgages valid as against credi-
tors and purchasers with notice,
still notice must be given before a
lien Is obtained by judgment or
attachment ; Daniels v. Sorrels, 9
Alabama, 436 ; The Ohio Life Ins.
Go. V. Ledyard, 8 Id. 866 ; Burt
V. Cassity, 12 Id. 734 ; Center v.
The Bank, 22 Id. 743 ; Dixon v.
Doe, 1 Smedes & Marshall, 70 ;
Taylor v. Eckford, 11 Id. 21;
Clement v. Rich, 9 Id. 535 ; Walker
V. Gilbert, Freeman, 85 ; and if it
is not, a purchaser under the judg-
ment, will acquire an vinincum-
bered title, although he has notice
at or before the sale ; Henderson
V. Downing, 29 Mississippi, 106 ;
and such would also seem to be the
rule in Kentucky ; Helm v. Logan,
4 Bibb. 78 ; Graham v. Samuel,
1 Dana, 166 ; Edwards v. Drinker,
9 Id. 69 ; although in Morton v.
Eobards, 4 Dana, 258, notice after
judgment was held to be in time.

The authorities agree that the
defendant must prove that he
gave value, as alleged in the
plea or answer, and that unless
the evidence on this head is pre-
cise and full, the defence will fail ;
Lloyd v. Lynch, 4 Casey, 419 ;
Ashton's Appeal, 23 P. F. Smith,
158, 162; Garrard v. The R. R.
Co., 5 Casey, 154; The Pitts-
burgh R. R. Co. V. Barker, lb. 160 ;
But it is equally well settled
that he need not adduce testimony

in the first instance in support of
the denial of notice in the plea or
answer. This results from the
presumption in favor of good
faith, and because he who has the
affirmative of the issue must main-
tain it. When it is shown that the
purchase was made for a valuable
consideration, the burden of prov-
ing notice devolves on the com-
plainant, and rebutting or explana-
tory evidence may then be adduced
bj' the defendant ; Carter v. Allan,
21 Gi-attan, 241; Carr v. Calla-
ghan, 8 Littell, 365.

In general the allegations of
the plea or answer are not evidence
that value was paid or that the de-
fendant did not receive notice. It
was well settled before the statutes
which render parties competent,
that the defendant's oath was not
admissible in support of new mat-
ter not responsive to the bill.
And the principle is still applica-
ble to the pleadings, although both
parties may now be called as wit-
nesses before the master or exam-
iner appointed to take testimony.

One who alleges that he is a
purchaser for value must present
his case with certainty, in order
that it may not be a cover for
fraud ; Leftwich v. Orne, 1 Free-
man's Ch. 207 ; Jenkins v. Bod-
ley, 1 Smedes & Marshall's Ch.
338. The conveyance by which
he acquired title must be set forth
briefly, showing the date, parties
and contents. He must not only
aver that he gave a valuable con-
sideration, but what it was, and
when paid or transferred ; High v.
Batte, 10 Yerger, 385 ; Donnell v-
King, 7 Leigh, 393 ; The Bank v.

100

BONA FIDE PUKCHASEKS.

Godfrey, 23 Illinois, 519, 606;
Moore v. Clay, *l Alabama, 142,
151.

It must appear that the pur-
chase-money "was bona fide and ac-
tually paid ; Snelgrove v. Snel-
grove, ante, 82 ; Lloyd v. Lynch, 4
Casey, 419, 425. And the allega-
tion mnst be substantiated by evi-
dence independently of the recital
in the deed ; Lloyd v. Lynch ;
Henry v. Sainman, 1 Casey, 360.
And as good faith is not less im-
portant than the paj^ment of value,
the plea or answer must be suffi-
ciently precise to show that from
the inception of the transaction to
its close, the defendant had no no-
tice or knowledge that could affect
his conscience or render it inequi-
table for him to make the pur-
chase. " The plea or answer must
state the deed of purchase, the
date, parties, and contents briefly ;
that the vendor was seised in fee,
and in possession ; the considera-
tion must be stated, with a dis-
tinct averment that it was bona
fide and truly paid, independently
of the recital in the deed. Notice
must be denied previous to and
down to the time of paying the
money, and the deliver}' of the
deed ; and if notice is specially
charged, the denial must be of all
circumstances referred to from
which notice can be inferred ; and
the answer or plea show how the
grantor acquired title; Sugden,
166, 10; 1 Ath. 384; 3 P. W.
2801, 243, 301 ; Amb. 421 ; 2 Atk.
230; 8 Wh. 449; 12 Wh. 502; 5
Pet. 118; 1 J. C. 61. The title
purchased must be apparently per-
fect, good at law, a vested estate

in fee simple ; 1 Cr. 100 ; 3 Cr.
133, 5 ; 1 Wash. C. C. 15. It must
be by a regular conveyance ; for
the purchaser of an equitable title
holds it subject to the equities
upon it in the hands of the vendor,
and has no better standing in a
court of equity ; 1 Cr. 48 ; 1 Pet.
211 ; Sugden, 122. Such is the
case which must be stated to give
a defendant the benefit of ah an-
swer or plea of an innocent pur-
chase without notice, and the ease
stated must be made out. Evi-
dence will not be permitted to be
given of any other matter not set
out ; 1 Pet. 211 ; " Boone v. Chilles,
10 Peters, 111, 211.

Notice must be denied expli-
citly, whether it is or is not
averred in the bill, in order to put
the fact at issue, and enable the
opposite party to establish the ex-
istence of notice by proof; Harris
V. Fly, 1 Paige, 422, 424 ; Harper
V. Reno, Freeman's Ch. 323 ; Gal-
latin V. Cunningham, Hopkins,
48 ; 8 Cowen, 361 ; Manhattan Go.
V. Evertson, 6 Id. 451, 466 ; Moore
V. Clay, 1 Alabama, 142, 151 ; De
Vendal v. Malone, 25 Id. 212;
Downing v. Smith, 3 Johnson's
Ch. 345. The denial should,
moreover, extend to every fact or
circumstance set forth in the bill
from which notice can be inferred;
Harper v. Reno ; Gallatin v. Cun-
ningham; Downing v. Smith. It
must show not only that the pur-
chaser made the contract in good
faith, but that he did not receive
notice before the purchase money
was paid or the deed executed ;
Jewett V. Palmer, 1 Johnson's Ch.
65. A want of fulness or precision

BASSET V. NOSWORTHY,

101

on these points is a good cause of
demurrer, or may be a ground for
an adverse decree at a hearing on
bill, answer and proofs ; Leftwitch
V. Or?ie, 1 Freeman's Cli. 207 ;
Harper v. Freno, lb. 323 ; Jenkins
T. Bodley, 1 Smedes & Marshall,
338. See Cutler v. The Bank, 22
Alabama, 143, T50 ; Parkinson v.
Welch, 19 Pick. 231, 234 ; Bailey
V. Wilson, 1 Dev. & Bat. Eq. 182.

In Cason v. Bound, Prec. in Ch.
226, notice was denied evasively,
and not positively, and the chan-
cellor held that the mortgagee was
not a 6onffl^cZe purchaser, although
the plaintiff was unable to prove
notice until after the money was
lent. So in Parkinson v. Welch,
the want of particularity in an an-
swer to a bill charging fraud and
propounding specific interroga-
tories, was held to be a ground
from which the court might infer
ttie truth of the charge. In like
manner it is not enough to aver
that the defendant had no actual
knowledge, nor any detailed in-
formation of a prior equity or un-
recorded deed, because Such in-
formation as will lead to know-
ledge if followed up, is notice;
Harper v. Bene.

In Wallwyn v. Lee, 9 Yes. 24,
32, Lord Eldon observed, that
where a purchase for valuable con-
sideration without notice is pleaded
to shut out a discovery, it is
necessary to aver not only that the
vendor or mortgagor was the
owner or pretended owner, but
that he was in possession, although
it need not be averred that the
purchaser was put in possession ;
and the same proposition may be

found in Daniells v. Davidson, 16
Ves. 252 ; Tompkins v. Anthon, 4
Sandford's Ch. 91, 122 ; Jackson v.
Bow, 4 Russell, 523. The posses-
sion of a tenant is the possession i
of his landlord, within this rule.
See Daniells v. Davidson, 16 Ve-
sey, 252. And it does not apply
where the conveyance is of a re-
version, or does not purport to be
an immediate transfer of the pos-
session. See Flagg v. Mann, 2
Sumner, 489, 558. It is no doubt
true that where the holder of the
equity is in possession personally,
or through an agent, it will oper-
ate as notice, and one who buys
under these circumstances to his
prejudice, is chargeable witli ac-
tual or constructive fraud ; but the
better opinion seems to be that if
an averment that the vendor was
possessed is essential when the de-
fence is made by plea, it is not
where the answer discloses all the
circumstances, and relies on good
faith and the payment of value, as
shown by them ; Wright v. Hood,
11 Harris, 120; Bupert v. Mark,
15 Illinois, 530.

An allegation that the defendant
is a bona fide purchaser is in con-
fession and avoidance. It admits
the plaintiff's case, and sets up new-
matter as a defence. It is, therefore,
pleading, and not evidence, and can-
not ordinarily be read at the hear-
ing as proof of the payment of value,
or to disprove notice ; Boone v.
Chilles, 10 Peters, 179, 211 ; Broivn
V. Welsh, 18 Illinois, 423. In the
language of Mr. Justice Baldwiu,
in Boone v. Chilles, 10 Peters, such
a defence " sets up matter not in
the bill ; a new case presented, not

102

BONA FIDE PTIECH AS EKS.

responsive to the bill ; but one
founded on a right and title opera-
ting to bar and avoid tlie plaintiff's
equity, which must otherwise pre-
vail; 9 V. 33, 84. The answer
setting it up is no evidence against
the plaintiff, who is not bound to
contradict or rebut it ; 1 4 J. B . 63,
74 ; 1 Mumf. 396-7 ; 10 J. R. 544-8 ;
2 Wh. 383 ; 3 Wh. 527 ; 6 Wh.
468 ; 1 J. C. 461. It must be es-
tablished affirmatively by the de-
fendant independently of his oath ;
6 J. R. 559 ; IJ. R. 590 ; 17 J. R.
367 ; 18 J. R. 532 ; 2 J. C. 87, 90 ;
4 B. C. 75 ; Amb. 589 ; 4 V. 404,
587; 3 J. C. 583."

The appropriate mode of making
the defence, considered in this
note, is by plea, when it is not
only a bar to the complainant's
case, but a justification for not
making a discovery whereby his
case might be helped ; although it
may still be requisite to sustain
the plea by an answer denying any
fact or circumstance set forth in
the bill tending to prove notice ;
Snelgrove v. S^ielgrove, i Dessaus-
sure, 274. But the defendant maj',
if he thinks lit, answer instead of
pleading, and if he does, and it
finally appears from the pleadings
and proofs that he is a bona fide
purchaser, the bill will be dis-
missed ; High v. Batte, 10 Yerger,
385; Donnell v. King, 17 Leigh,
393 ; Hagthorp v. Hook, 1 Gill. &
Johnson, 270 ; Jerrard v. Saunders,
2 Vesey, Jr. 254. The language
of Sugden, that " if he neglect to
plead it, he cannot avail himself
of it as a defence," (4 Sugden on
Vendors, Ch. 25, sect. 3), should
be understood as referring to the

discovery sought by the bill and
not to the relief. It was long held
that one who submits to answer,
must answer fully at the risk that
the disclosure may invalidate his
defence ; Orrery v. Leighlon, 2
Simons & Stuart, 234 ; The Earl
of Portarlington v. Soulby, 7
Simons, 28 ; Salmon v. Gleggett,
3 Bland, 125: The Bank of Utica
V. Mersereau, 7 P^ige, 517.
Whether an answer alleging a
purchase for value is an exception
to this rule was a doubtful ques-
tion, which was answered in the
affirmative by some of the authori-
ties, and negatively in others ;
Sigh V. Batte ; Donnell v. King ;
Jerrard v. Saunders ; The Bank
V. Mersereau ; Salmon v. Glaggett ;
The Earl of Portarlington v.
Soulby. The question is now set
at rest in the Supreme Court of
the United States by the new
rules in equity, which were taken
from the English courts, and have
been adopted in Pennsylvania and
some of the other States. These
provide that a defendant may by
answer insist on all substantial
matters of which he could avail
himself by a demurrer, or plea in
bar, without answering further
than he would be compellable to
answer if he had demurred or
pleaded, and filed an answer in
support of the plea.

In The Bank v. Mersereau, the
question grew out of the negotia-
tion of a bill of exchange, and it
was held that an answer averring
that the defendant gave value in
good faith, did not excuse the non-
production of documents which,
as the bill averred, w,ere in his

BASSET V. NOSWORTHT,

103

possession, and would show notice
if disclosed.

The weight of authority is that one
■whosets up apurchaseforvalueand
without notice, cannot rely on the
answer as proof of good faith or of
the payment of the consideration ;
Boone v. Chilles, 10 Peters, 177 ;
Kyles V. Tait, 6 Grattan, 44 ; Hag-
thorp V. Hook, 1 Gill. & Johnson,
2Y0 ; Halstead v. The Bank of
Kentucky, 4 J. J. Marsh. 554.
But it has been held in some in-
stances that where the denial of
notice is sufficiently full and pre-
cise, it not only shifts the burden
of proof, but cannot be overthrown
by the • uncorroborated testimony
of one witness ; Kingdom v.
Boakes, Prec. Ch. 19; Hine v.
Dodd, 2 Atkyns, 275 ; Roberts v.
Salisbury, 3 Gill & Johnson, 425 ;
Kingdom y. Boakes, Prec. Ch. 16 ;
Hughson v. Mandeville, 4 Dessaus-
sure, 87 ; Maywood v. Lubcock, 1
Bailey's Eq. 382 ; Conner v. Tuck,
11 Alabama, 794. Such is the un-
doubted and well-settled rule, where
the answer is in the proper sense
of the term responsive to the bill ;
Flagg v. Mann, 2 Summer, 487,
551. " It is an established rule in
equity," said Story, J., in Flagg v.
Mann, " that to overcome the posi-
tive denials of an answer respon-
sive to the charges in a bill, there
should be the testimony of two
witness of equal credibility on tlie
other side, or of one witness with
strong and stringent circum-
stances." The point actually de-
cided was, that the testimony of sev-
eral witnesses, that the defendant
had confessed or admitted notice,
in the course of a loose and gene-

ral conversation, was insufficient
to overbalance his solemn denial
Of notice under oath. The same
conclusion was reached in Hine v.
Dodd ; Jolland v. Stanbridge, 3
Vesey, 478 ; Conner v. Tuck, 11
Alal>ama, 794, and Roberts v.
Saulsbury, 3 Gill & Johnson, 425 ;
although the decision turned, in
nearly all these instances, on the
vagueness and generality of the
admissions, which the defendant
was alleged to have made, rather
than on his right to be believed.

There can be no doubt in gene-
ral, that where the allegations go-
ing to make up the complainant's
case are explicitly contradicted in
the answer, the denial should be
taken as verity until it is dis-
proved ; Alam v. Jourdan, 1 Yer-
non, 161 ; Mortimer v. Orchard, 2
Vesey, jun., 243 ; Evans v. Bick-
nell, 6 Id. 174 ; East India Co. v.
Donald, 9 Id. 275 ; Cooke v. Clay-
worth, 18 Id. 12 ; Smith v. Brush,
I Johnson, Ch. 459 ; Clason v.
Morris, 10 Johnson, 524 ; Clark's
Ex'ors V. Van Reimsdyk, 9 Cranch,
153 ; Lenox v. Prout, 3 Wheaton,
520 ; Hughes v. Blakes, 6 Id. 453 ;
Daniel v. Mitchell, 1 Story, 172;
Dunham v. Gates, 1 Hoff. Ch. R.
185 ; Martin v. Browning, 2 Hawks,
644 ; Hart v. Ten Eyck, 2 John.
Ch. 92 ; Watkins v. Stockett, 6 Harr.
& John. 435 ; Hughes v. Blake, 6
Wheaton, 468 ; Peirson v. Glayesi
15 Vermont, 93; Gould v. Wil-
liamson, 21 Maine, 273 ; Hollister
v. Barkley, 11 New Hamp. 501 ;
Beatty v. Smith, 2 Hen. & Munf.
395 ; Langdon v. Goddard, 2
Story, 267 ; Sullivan v. Bates, 1
Littell, 42 ; Roberts v. Salisbury,

104

BONA FIDE PURCHASERS.

3 Gill & John. 425 ; Hawkins v.
Enibry, 3 Monroe, 225 ; Oaither v.
Galdioell, 1 Dev. & Bat. Eq. 504,
509 ; Speight v. Speight, 2 Dev. &
Bat. Eq. 280; Petty v. Taylor, 5
Dana, 598 ; Gray v. Paris, t Yer-
ger, 155 ; Hudson v. Cheatham, 5
J. J. Marsh. 50 ; Patrick v. Langs-
ton, lb. 654 ; Mason v. Peck, Y Id.
300 ; Stafford v. Bryan, 1 Paige,
239 ; Clarke v. Oakley, 4 Ark. 236.
For as the defendant is compelled
to say whether the charges in the
bill are true or false, he has a
right to require that his response
shall be read as a whole, and that
the complainant shall not accept
what makes in his favor and reject
the rest. " The reason upon which
the rule stands is this, that where
the plaintiff calls on the defendant
to answer an allegation, he makes,
and thereby admits the answer
to be evidence ; " Per Marshall,
C. J., Clark^s Executor v. Beims-
dyk, 9 Cranch, 153. But it
is no less true that the an-
swer cannot be read as evidence
of new matter, not responsive to
the bill, and operating by way of
confession and avoidance ; The
New England Bank v. Lewis, 8
Pick. 113; lb. 63; James y. M-
Kernon, 6 Johnson, 543, 559
Skinner v. White, 17 Id. 351, 361
Neale v. Hagthorpi, 3 Bland, .i51
Salmon v. Claggett, 3 Bland, 125
Wakeman v. Graver, 4 Paige, 23
Hart V. Ten Eyck, 2 John. Ch. 62
O'Brien v. Elliott, 15 Maine, 125
Lucas v. Bank of Darien, 2 Stew-
art, 280 ; Peirson v. Clayes, 15
Verm. 93 ; M'' Daniels v. Barnum,
5 Vermont, 219 ; Mott v. Harring-
ton, 12 Id. 199; Cannon v. Norton,

14 Id. 118 ; Lane v. Marshall, 15
Id. 85; M'Donald v. M'Donald,
16 Id. 630 ; Randall v. Phillips,
3 Mason, 318 ; Chinowith v. Wil-
liamson, 2 Bibb. 36 ; Clarke v.
White, 12 Peters, 118 ; Lampton
V. Lampton, 6 Monroe, 620 ; Paynes
V. Coles, 1 Munf. 313 ; Hagthorp
V. Hook, 1 Gill & John 212 ; Alex-
ander V. Wallace, 10 Yerger, 105 ;
Carter v. Leeper, 5 Dana, 26.'i ;
Gould V. Williamson, 21 Maine,
213 ; Jones, 1 Ired. Eq. 332 ; John-
son V. Person, 1 Dev. Eq. 364
Peckworth v. Butler, 1 Wash. 224
Miller v. Wack, 1 Saxton, 204
Norwood V. Norwood, 2 Harr. &
John. 238; M'Gowen v. Young, 2
Stew. & Port. 161; Eberley v.
Groff, 9 Harris, 251. It is"* not
always easy to apply this rule. But
the better opinion would seem to
be that a denial of notice is not
" responsive " in the proper sense
of the term, merely because notice
is alleged generally in the bill.
For, as the defendant must deny
notice, whether it is or is not al-
leged, so the mere circumstance
that the complainant charges no-
tice should not vary the case, or
give a greater weight to the de-
fendant's oath than it would other-
wise possess.

Such at least seems to be the
reasonable inference where the
allegation of notice is not essential,
and might be omitted without ren-
dering the bill demurrable. A bill
alleging a trust for the complain-
ant, and that the premises were
wrongfully conveyed to the de-
fendant, presents a prima facie
case for relief (see Brown v.
Welsh, 18 Illinois, 343); and an

BASSET V, NOSWORTHT.

105

answer averring that the defendant
is a bona fide purchaser, being in
confession and avoidance, is not
evidence, and must be substantiated
by proof. There is a material dif-
ference where, from the nature of
the case, a chancellor cannot have
jurisdiction, unless notice is
charged. If, for instance, a com-
plainant who sets up an unrecorded
grant against one that has been
duly placed on record, were simply
to aver the execution of the deed
under which he claims, and that
the grantor subsequently con-
veyed the premises to the defend-
ant, the suit would fail, because,
on his showing, there would be an
adequate remedy at law. The bill
should, therefore, disclose the de-
fect in the complainant's title, and
then go on to aver that the defend-
ant had notice, or is not a pur-
chaser for value, when an answer
contradicting either statement will
be responsive to the bill. See Hine
V. Dodd, 2 Atkyns, 273 ; Kingdom
V. Boakes, Prec. Ch. 19 ; Center v.
The Bank, 25 Alabama, '743 ; Sul-
livan V. Bates, 1 Littell, 42 ; 3fa-
son V. Pick, "7 J. J. Marshall, 301 ;
Roberts v. Salisbury, 3 Gill & J.
425 ; Hagthorp v. Hook, 1 Id. 270,
282 ; Neale v. Hagthorp, 1 Bland,
551 ; Maywood v. Lubcock, 1
Bailey, Eq. 382.

The question does not arise
where the defence is made by plea,
because a plea is not evidence of
what it contains. The plea must
be sworn to as a means of testing
the defendant's conscience, but it
cannot be used as proof of the pay-
ment of value, or to contradict the
evidence of notice adduced on the

other side. The right to make
such a defence by answer instead
of pleading, is an indulgence which
should not be allowed to prejudice
the complainant. A general denial
of notice by answer is, therefore,
entitled to no greater weight than if
it were made by plea. The case
is obviously different where facts
or circumstances are alleged in the
bill as constituting or proving no-
tice, and the defendant's answer
that they do not exist, may then
have a greater claim to credence
than the testimony of a single
witness.

The course of proof is, therefore,
as follows : The burden is on the
complainant to establish some fact
or circumstance which operates
as actual or constructive notice.
A general denial of notice in the
answer will not weigh against such
evidence. If, however, the bill
alleges specific instances of notice
which are explicitly denied, the
answer will stand against the un-
corroborated testimony of a single
witness. It is, nevertheless, well
settled, that an express denial of
notice in response to the bill, or an
allegation that the defendant was
ignorant of the complainant's
equity, and believed the vendor's
title to be good, will not avail, if
any fact or circumstance is ad-
mitted by the defendant, or not
denied by him and testified to by
a witness, which operates as con-
structive notice, or justifies the in-
ference that it was Ids duty to in-
quire ; Hudson v. Warner, 2 Har-
ris & Gill, 415 ; Price v. M'Don-
ald, 1 Maryland, 403, 420. See
Tillinghast v. Champlin, 4 Rhode

106

BONA FIDE PURCHASERS.

Island ; Hoxie v. Carr, 1 Sumner ;
Flagg v. Mann, 2 Id. ; Parkman
V. Welsh, 19 Pick. 251, 234.

It is proper to add, that under a
general replication to a plea, no-
thing is at issue but what the plea
avers, and if that is established at
the hearing, the plea is a bar not
merely to that part of the claim to
■which it is strictly pertinent, but
to so much of the bill as it pro-
fesses to cover. It follows that
where the defendant pleads that he
gave value without denying notice,
and the allegation is substantiated
by proof, the bill must be dis-
missed, notwithstanding the clear-
est proof of notice on the part of
the complainant. See Fish v. Mil-
ler, 5 Paige, 29; Daws v. if'-
Michael, 6 Id. 144 ; Hughes v.
Blake, 6 Wheaton, 453 ; Harris v.
Ingledew, 3 P. F. Williams, 91 ;
Thompkins v. Anthon, 4 Sandford,
Ch. 97.

In general, one who claims as a
purchaser, must show that the con-
sideration was valuable, and aetu-
alljr paid, by calling witnesses who
were present at the transaction, or
some other legal means of proof,
and cannot rely on the recitals in
the deed, or the vendor's receipt,
as evidence of the payment of
value or any other fact material
to his case ; Nolen v. Owyn,
16 Alabama, 725 ; De Vendal
V. Malone, 25 Id. 2'72; Kimball
V. Fenner, 1.2 New Hampshire,
248 ; Rogers v. Hall, 4 Watts, 359
Clark v. Bepew, 1 Casey, 509
Henry v. Baiman, lb. 354, 360
Bolton V. Johns, 5 Barr, 151 ; Lloyd
V. Lynch, 4 Casey, 419 ; Snelyroue
V. Snelgrove, 4 Dessaussure, 28Y ;

Hawley v. Bullock, 29 Texas, 216 ;
BoltOn V. Johns, 5 Barr, 145 ; The
Union Canal Co. v. Young, 1
Wharton, 410, 432.

In Lloyd v. Lynch, where the
defendant claimed to be a pur-
chaser for a valuable consideration
as against the plaintiff, who sought
to enforce an antecedent equity,
Lewis, Chief Justice, said " that
the defendant had given no evi-
dence of the payment of the pur-
chase money except the receipt
in the deed from his immediate
grantor. That receipt was un-
doubted evidence of paj'ment
against the grantor, and all who
claimed under him subsequently.
It was also evidence to pass the
grantor's riglit, whatever it was at
the time. But it was no evidence
whatever of the fact of payment
against a stranger, or even against
one who derived title from the
grantor previously to the convey-
ance to the plaintiff. As it re-
garded such a one, the receipt was
a mere ex parte declaration, not
under oath, and made without any
opportunity at cross-examination."
For a like reason, when a mort-
gage is impeached as a fraud, or as
having been executed in fraud of
the mortgagor's creditors, the pro-
duction of the note or bond which
it was professedly intended to se-
cure, is not evidence of the realty
or value of the consideration.

It has been held in New York,
that where an ejectment is brought
on an unregistered deed or mort-
gage, against one claiming under a
subsequent grant, the defendant
may rely on the recital in his
deed, as evidence which shifts the

BASSET V. NOSWORTHT.

107

burden of proof, and renders
it incumbent on the plaintiff
to show that the amount set forth
was not actually paid ; Jack-
son Y. WChesney, 1 Cowen, 360.
Sutherland, J., said, that " the ac-
knowledgment in a deed of the
recept of the consideration money,
was prima facie evidence of its
payment. Like a receipt for money,
it might be explained or contra-
dicted, but until impeached, it was
legal and competent evidence of
payment, which, though not oper-
ating by way of estoppel, sustained
the deed by establishing the con-
sideration not only as iDetween the
immediate parties, but against any
one who sought to impeach it col-
laterally. One who claimed as a
purchaser in equity must aver and
prove that the purchase money
was actually paid, but there was
no analogy between such a case
and an action of ejectment, where
the strict legal title must prevail."
It was said, in like manner, in
Wood V. Chapin, 3 Kernan, 509,
that where the case arises under
the recording acts, the receipt for
the consideration in the grantor's
deed is prima facie evidence of
payment.

It is not easy to perceive the
force of this reasoning. No one
doubts that in a court of law the
legal title must prevail. So far as
the decision in Jackson v. W Ghes-
ney rests on this ground, it is not
in point when the question arises
in an equitable tribunal. But the
court seems to have overlooked
that the actual payment of value
is essential to take advantage of
the failure to record the prior

deed. Unless evidence is adduced
on this head by the subsequent
grantee, his case will fail. The
grantor's receipt or acknowledg-
ment is not admissible for such a
purpose ; ante. It is no doubt
true that a conveyance by way of
bargain and sale cannot be de-
feated by disproving the consid-
eration contrary to the allegation
of the deed. The reason is that
a bargain for value and under seal,
raises a use which the statute exe-
cutes, although nothing be paid.
But the case is obviously different
where the consideration must not
only be agreed upon, but delivered
and received, to perfect the title
of one party, or preclude tlie other
from asserting an equitable right ;
and it then falls within the gene-
ral rule, that an admission is not
evidence except as against the per-
son who makes it, or one in privity
with him by virtue of a subse-
quent conveyance.

It results from this principle,
that a grantee may rely on a re-
cital in his deed as evidence of the
payment of the purchase-money as
against any one to whom the
premises are subsequently con-
veyed by the grantor ; The Penna.
Salt Mine Go. v. Neil, 4 P. F.
Smith, 9. Thompson, J., said, "that
it had been ruled in Lloyd v.
Lynch, 4 Casey, 419, that the re-.
ceipt in a deed was good against
the grantor and all who derived
title from him subsequently, but
no evidence against a stranger, or
one claiming under a previous con-
veyance. If this doctrine was ques-
tionable as it regarded strangers, it
was entirely accurate as to parties

108

BONA FIDE PURCHASERS,

and privies." It may be observed
of the distinction taken in these in-
stances between parties and stran-
gers, that a deed of bargain
and sale is conclusive on all the
world that the land was sold for a
consideration which may be nomi-
nal, but is yet valuable in the tech-
nical sense requisite to pass the
title ; Wood v. Ohapin, 3 Kernan,
509, 51Y; and that it is not evi-
dence as against strangers or per-
sons claiming by an anterior or
paramount right, of the amount
or value of the consideration, or
that any consideration was actu-
ally paid.

There is more room for doubt
where the deed is impeached as a
fraud on creditors. The grantor's
receipt, or a recital that the con-
sideration has been paid, is ob-
viously a part of the res gestae,
which should be taken into view
as showing that the transfer pur-
ported to be for value, and not
voluntary. It does not follow that
an inference of actual payment can
be drawn from such an acknow-
ledgment. Whether it can or not,
depends upon who are the parties
to the controversy. We have seen
that an admission by a grantor is
evidence against a subsequent
grantee, but not against one whose
claim originated previously. A
creditor who seeks to set aside a
deed as fraudulent, has been held
to be within the former category ;
Lutlon V. Eesson, 6 Harris, 109;
Clark V. Depew, 1 Casey, 509 ;
Lloyd V. Lynch, 4 Casey ; Glapp
V. Tyrrell, 20 Pick. 241. In Lut-
ton V. Hasson, Rogers, J., said
" that title would be insecure if a

deed must be set aside as volun-
tary and fraudulent, unless the
grantee could prove that the con-
sideration money had been paid.
The court below were consequently
right in refusing to instruct the
jury that the acknowledgment in
the body of the deed, and the re-
ceipt at the foot of it, were no evi-
dence of payment." Such evidence
is, nevertheless, of a low order,
from the facility with which it
maj' be fabricated ; Clapp v. Tir-
rell. If it appears that the grantor
was largely indebted, and that the
conveyance left him without the
means of payment, his receipt
will not be sufficient proof of con-
sideration, unless the failure to
adduce direct evidence is excused
by the lapse of time or other cir-
cumstances ; Clark v. Depew ;
Sogers v. Hall, 4 Watts, 359;
Zerhe v. Miller, 4 Harris, 597 ; and
Ch. J. Gribson seems to have been
of opinion in Rogers v. Hall, that
where the vendor's circumstances
are such that he is not entitled to
make a gift, and the conveyance
must be set aside as fraudulent, if
not made for a valuable considera-
tion, his receipt in the instrument
or dehors, is not evidence against
his creditors, who, having a para-
mount and anterior right, cannot
be affected by his declarations in
the course of a transaction with a
third person. And a similar view
was taken in Kimball v. Fenner,
12 New Hampshire, 248, and
Faulkner v. Leith, 15 Alabama.

There can be no doubt that where
a conveyance is shown to have
been fraudulent as against credi-
tors, one who claims as a bona fide

LENEVEV.LENEVE. 109

purchaser from the grantee, has ceipt of his immediate vendor, as

the burden of proof, and cannot evidence of payment ; Rogers v.

rely on a recital in the deed by Hall^ 4 "Watts, 359; Lutton v.

which he acquires title, or the re- Eesson, 6 Harris, 109, 111.

*LE NEVE V. LE NEVE.i [*35]

DEC. 9, 1747.

EEPORTED AMB. 438.

IfoTiCE.] — Lands in register county^ settled hy a deed which is not
registered, are settled upon a second marriage, with notice of the
former seltlejnent, and the second settlement is registered pursuant
to the statute 1th Anne. The former settlement shall be preferred
in equity. Notice to an agent or trustee is notice to the principal.

LoBD Chancellor Hardwicke. — The bill was brought by the
plaintifts Peter Le Neve and Hugh Pigot and Elizabeth his wife,
late Elizabeth Le Neve, as the only surviving children of the de-
fendant Edward Le Neve, by Henrietta, his late wife.

The end of the bill, in general, is, to have the execution of
trust of leasehold estates settled upon the late vv^ife of Edward
Le Neve and the issue of that marriage, by articles previous to
the marriage, dated 1st July, 1718 ; and that the conveyances
made by the defendant Edward Le Neve and the defendant Mary,
his now wife, to trustees, may be set aside and delivered up, being
made after notice of the articles of the 1st of July, 1718, or of
the other conveyances made in pursuance thereof; and to have
the leasehold exonerated and disencumbered.

The facts are that, in 1718, the defendant Edward Le Neve in-
termarried with his first wife, Henrietta Le Neve, who had a
considerable fortune ; and articles were executed previous to the
marriage, dated the 1st July, 1718, whereby the father of Edward,
in consideration of Henrietta's fortune, &c., covenanted with trus-
tees to convey to them several estates, and some leasehold, amongst
*the rest, near Soho Square, in the county of Middlesex ; r*n/?-i
to permit Edward Le Neve the younger to receive the '- -'
rents and profits during his own life, and after his death to pay
to Henrietta 250^. a year, in case she survived Edward ; and,
after the decease of Edward and Henrietta, then the said estates
should remain to their issue in such manner as Edward the
younger should by will or otherwise appoint ; and, for want of
such issue, to the use of Edward Le Neve the father, and his
heirs.

The 16th June, 1719, a settlement was made in pursuance of
the articles,

15. C, 3 Atk. 640; 1 Yes. 64.

110 NOTICE.

The marriage took effect; and Edward and Henrietta had
issue, plaintiffs Peter and Elizabeth. Henrietta died July, 1740,
leaving no other children.

Twentj'-five years after the first marriage, Edward Le Neve
entered into a treaty of marriage with the defendant Mary, and
by articles dated the 16th of i^ovember, 1743. previous to the
marriage, Edward, in consideration of such marriage, covenanted
with the trustees, the defendants Dandridge and Norton, to con-
vey these very leasehold estates near Soho Square to them, their
executors, &c., within three mouths after the marriage, in trust
to pay to the defendant Mary, out of the rents of these messuages,
in case she survived him, a clear annuity of 150^. for her life, for
her jointure, &c.

The marriage took effect, and three months after, on the 20th
of January, 1744, a settlement was made pursuant to the articles.

The settled estate, being houses in Middlesex, was subject to
the register Act, the 7th Anne, cap. 20.

The second articles and settlement were registered, but not the
first.

Edward has mortgaged the house likewise.

The bill is brought in order to set the second articles and set-
tlement out of the way, and that they may be postponed to the
first articles and settlement ; upon this equity, that the defendant
Mary Le Neve had notice of them.

r*Qrj-< *The counsel for the plaintiffs admit that the register-
*- -J ing of the second articles and settlement has, in point of
law, affected the leasehold estates, as the 7th Anne gives the legal
estate where the effect of the registering has placed it.

The question is, Whether equity will enable the children of
the first marriage to get the better of the defendant's legal right?
And this will depend upon the question of notice: —

1st, Whether it appears sufficiently, that Joseph Norton was
attorney for the defendant Mary in the transaction of her marr
riage ?

2ndly, Whether Norton himself had sufficient notice of the
first articles and settlement ?

3rdly, Whether that will affect Mary as a purchaser, and post-
pone her articles and settlement, notwithstanding the Register
Act?

First, it will depend on the answer of the defendant Mary.

She has in general denied any notice of the first articles and
settlement till six months after the marriage, and says, " that the
defendant Joseph Norton was so far from being employed as
solicitor for her, in transacting the business of the marriage arti-
cles and settlement, that he had been for a considerable time
before employed as attorney for the defendant Edward Le Neve,
her husband ; that, being at the time of the marriage concerned
for her husband, she was thereupon induced to place confidence
in him, and her husband assured her he would take care there
should be a handsome provision made for her, and recommended

LBNBVBV.LENEVE. Ill

Norton as a proper person to prepare the deeds whereby such set-
tlement was to be made upon Ler, to which she consented : and
that Norton assured her that he had taken care to secure for her
150^. a year by way of jointure, and did not then, or at any time
before her intended marriage, give her any notice of any former
settlement."

It is insisted by the defendant Mary's counsel, that Joseph
Norton was not her attorney or agent, but her *husband'8, r»qQ-i
and that the attorney for one party having notice will not ^ ^
atfect her with notice.

I am of opinion she has admitted enough on her side to make
him attorney or agent for her. If she placed confidence in Joseph
Norton, no matter on whose recommendation, — if she relied
enough on her husband to take his recommendation, it is suffi-
cient; or otherwise it would be mischievous and inconvenient if
this Court was to take into their consideration from whom the
recommendation comes ; for in purchases, and more especially in
mortgages, very frequently the same counsel and agents are em-
ployed on both sides, and therefore each side is affected with
notice as much as if dift'erent counsel and agents had been em-
ployed.

It is material to see how far the cases have gone on this point.
Two have been cited : Brotherton v. Jiutt, 2 Vern. 574, and Jen-
nings V. Moore, Blincorne,^ and Others, 2 Vern. 609. [S. C, 2 Bro.
r. 0. 278, Toml. ed.] The first was shortly this: — A. makes
three several mortgages to B., C, and D., and in the last mort-
gage B. is a party, and agrees, after he is paid he will stand a
trustee for D. Decreed, that C. shall be paid before D., for, all
the securities being transacted by the same scrivener, notice to
him was notice to D.

See how far this goes : — the same scriveners were witnesses, and
engrossed all the securities, and were in the nature of agents for
all the lenders, and very likely for the borrower himself; and
notwithstanding it does not appear Mrs. Hatt had personal notice,
'" yet notice to the agent is notice to the party, and, consequently,
they that lend last must come last, having notice of what was
before lent ; and if any one after notice lend more money although
lie should obtain the legal estate, yet he would in equity stand
alfected with the notice, and be bound thereby."

The second case was no more than this: — Blincorne having
notice of an incumbrance, purchases in the name of Moore, and
then agrees that Moore shall be the purchaser, and he accordingly
pays the purchase-money *without notice of the incum- rxggi
brance. Though Moore did not employ Blincorne, nor ^ -•
know anything of the purchase till after it was made, yet Moore
approving of it afterwards made Blincorne his agent ab initio,
and therefore shall be affected with the notice to Blincorne.
The last goes a great way : for Moore knew nothing of the

' Nom. Blenkarne v. Jennings.

112 NOTICE.

transaction, and yet the Court held, that his approving it after-
wards made Blincorne his agent ab initio. This carries it further
than the present case ; but the first is a clear authority.

These cases, therefore, sufficiently prove, that it is not at all
material to the plaintiffs on whose advice or recommendation the
defendant Mary intrusted Norton ; nor does it make any differ-
ence that it is the recommendation of the husband any more than
of any other person.

The second consideration is (as it appears clearly t'lat Norton
was employed lor defendant Mary), whether there is sufficient
evidence of notice to him ?

An objection has been taken by defendant Mary's counsel, that,
as notice hath been denied by her answer, if it be sworn to by
one witness only, that being but oath against oath, cannot prevail
to establish the fact.

The general rule, to be sure, is so, but it admits of this distinc-
tion : — where the denial of a defendant is clear, it has been ad-
hered to ; but where the answer is not a positive denial of the
same fact, but only as to part, as in the present case, as to the
notice to herself only, it makes a difference.

And there are many ckses where the Court, upon the testimony
of one witness, whose credit is unimpeached, and what he swears
is uncontradicted by the answer, have decreed upon this single
evidence.

The defendant Mary denies notice to herself; but whether
there was notice to another person, her agent, she passes by with-
out giving any answer.

This is a denial, indeed, as to herself, but it is at the same time
what is called at law a negative pregnant, that there was notice
to her agent.

As to the evidence of notice to Norton, it is extremely
r*4.0"l *sti'oiig ; for he swears that he had notice of the first arti-
L -' cles some time before the second marriage, and that he had
then a copy thereof from the defendant Edward Le Neve, in order to
take counsel's opinion thereon, how to secure against the effect <f them,
and to contrive in what manner they might get the better of these arti-
cles : and, therefore, as to Norton, there cannot be a stronger
notice.

The third and last general question is, whether the notice to
Norton will atfect the defendant Mary, as a purchaser, and post-
pone her articles and settlement, notwithstanding the Eegister
Act?

This depends on two things: —

1st, Whether any notice whatsoever would be sufficient to take
from the defendant the benefit of the Register Act?

2nd, Whether personal notice to the defendant Mary is requi-
site to postpone her? — or whether notice to her agent is sufficient
to do it likewise ?

As to the 1st, it is a question of great extent and consequence.

The preamble of the statute of the 7th Anne, c. 20, is in sub-

LE NEVE V- NE NEVE. 113

stance: — " Whereas, by the different and secret ways of convey-
ing lands, &c., such as are ill-disposed have it in their power to
commit frauds, and frequently do so, by means whereof several
persons have been undone in their purchases and mortgages, by
•prior and secret conveyances, and fraudulent incumbrances." Then
comes the enacting clause: — "That a memorial of all deeds and
conveyances which, after the 27th of September, 1709, shall be
made and executed, and of all wills and devises in writing,
whereby any honours, manors, lands, &c., in the county of Mid-
dlesex, may be any way affected in law or equity, may be regis-
tered in such manner as is after directed ; and that every such
deed or conveyance that shall, at any time after, &c., be made and
executed, shall be ac/judgtd fraudulent and void against any subse-
quent purchaser or ynortgagee for valuable consideration, unless
such memorial be registered as by this Act is directed, *be- r* ,■,-,
fore the registering of the memorial of the deed or convey- '- -^
ance under which such subsequent purchaser or mortgagee shall
claim," &c.

What appears, by the preamble, to be the intention of the Act?

Plainly, to secure subsequent purchasers and mortgagees against
•prior secret conveyances and fraudulent incumbrances.

"Where a person had no notice of a prior conveyance, there the
registering his subsequent conveyance shall prevail against the
prior; but if he had notice of a prior conveyance, then^that was
not a secret conveyance by which he could be prejudiced.

The enacting clause says that every such deed shall be void against
any subsequent purchaser or mortgagee, unless the memorial thereof
be registered, &c. ; that is, it gives him the legal estate, but it
does not say that such subsequent purchaser is not left open to
any equity which a prior purchaser or incumbrancer may have ,
for he can be in no danger when he knows of another incum-
brance, because he might then have stopped his hand from pro-
ceeding.

This case has been very properly compared to cases on the 27
Hen. 8, for inrolment of bargains and sales.

That Act is formed pretty much in the same manner with this.

The words of the enacting clause : — " That from, &c., no manors,
lands, tenements, &c., shall pass, alter, or change from one to
another, whereby any estate of inheritance or freehold shall be
made, or take effect in any person or persons, or any use thereof to
be made thereof, by reason only of any bargain and sale thereof,
except the same bargain and sale be by writing, indented, sealed,
and inrolled in one of the King's Courts of Record at Westmin-
ster, or else within the same county, &c., where the same manors,
&c., so bargained and sold do lie, &c. ; and the same inrolment to
be had and made within six months next after the date of the
same writings, indented, &c., nor any use shall pass thereof from
one to another." r*4'-'l

*'What is the meaning of this? L "J

Before the making of the Act, any paper writing passed the

VOL. II. — 8

114 NOTICE.

use from the bargainor to the bargainee, whereby great mischief
arose ; for it entangled the purchasers, affected and injured the
Crown, and was contrary to the rule of law, which required noto-
riety in purchases by feoffment and liveiy, &c.

But what has been the construction of this statute ever since ?
Why, if a subsequent bargainee has notice of a prior, he is equally
affected with that notice as if the prior purchase had been a con-
veyance by feoffment and livery, &c.

The operation of both Acts of Parliament and the construction
of them is the same ; and it would be a most mischievous thing
if a person, taking that advantage of the legal form appointed by
an Act of Parliament, might under that protect himself against
a person who had a prior equitj', of which he had notice.
The cases put by the Attorney- General are very material: —
"Suppose," said he, " the defendant Mary had, by letter of at-
torney, empowered Norton to transact the affair with her husband,
and he by means of this agency comes to the knowledge of the
prior articles and settlement, would not this affect the principal?
Or suppose a purchaser of lauds in a register county oi'ders his
attorney to register it, and he neglects to do it, and then buys the
estate himself, and registers his own conveyance, shall this be al-
lowed to prevail ?

It certainly shall not ; for such a purchaser is out of the conse-
quences which the Register Act guards against, of imposition
from a prior secret conveyance, as he had personal knowledge of
the first.

There have been three cases on the Register Act : —
1st, Lord Forbes v. JSIehon, 4 Bro. P. C. 189, Toml. ed.
2nd, Blades v. Blades, 1 Eq. Ca. Abr. 358, pi. 12.
ard, Cheval v. Nichols, lOth December, 1725, in the Exchequer,
1 Stra. 664.

[-.^^^on The first' arose originally in Ireland, where there is *a
'- ^-' general Register Act, and heard on appeal to the House of
Lords, in England, 22nd and 23rd February, 1722.

The Earl of Granard, father of Lord Forbes, was seised of a
large estate of which he was tenant for life, with remainder to
his first and every other son in tail, and had a power of leasing
for lives at the best rent.

The Register Act in Ireland passed the Gth Anne ; Lord Gran-
ard granted a lease for three lives at the rent of 30^. a year, which
was not registered.

His Lordship, being greatly in debt, came to an agreement with
Lord Forbes, his eldest son, by the agency of Mr. Steward, tc
take upon him the payment of certain debts of his father, and sc
secure a jointure to his mother-in-law, and an annuity to hif
father.

The estate was conveyed to Mr. Justice Do^'ne and Mr. Justic<
Kutt, as trustees, during the life of the lather.

' Lord Forbes v. Nelson.

LE NEVE V. LE NEVB. 115

Mr. Steward had notice of this lease during the treaty between
Lord Granard and Lord Forbes.

The conveyance to the trustees being registered, they brought
an ejectment against the lessee of the leasehold estate: and it was
heard before Lord Middleton, Lord Chancellor of Ireland, in Feb-
ruary, 1721, who then made a declaration rather than a decree,
that the conveyance was void as against the lessee. It came on
again before him the 17th of February, 1721, and he then deter-
mined, there was full notice of the lease to Lord Forbes, and
awarded a perpetual injunction from time to time.

The judgment of the House of Lords was, That the said decree
be reversed, and that all proceedings at law of the appellants
against the respondent should, during the life of Lord Granard,
be stayed, on lessee's paying the rents, performing the covenants,
&c. ; but that after the death of Lord Granard, Lord Forbes
might be at liberty to try the tenant's right to the lease.

The decree was reversed, not because Lord Middleton had pro-
ceeded on a wrong principle, but had drawn a wrong inference
from it ; for Lord Forbes did not insist merely on the register,
but that the lease was made contrary *to the power: and r*^^^-]
therefore the Lord Chancellor of Ireland was mistaken, L -■
and wrong in decreeing the lease to be good in every respect ; and
the House of Lords set the decree right only as to this particular
part, that, after the death of Lord Granai'd, the estate deter-
mined ;. and therefore left it open to Lord Forbes to dispute
whether it was a leasee pursuant to the power, but gave no relief
as to the Kegister Act.

The case of Blades v. ^/ac?es^ came before Lord Chancellor King,
2nd May, 1727.

"William Blades, in 1716, devised certain lands to his wife for
her life, and after her death to his nine children. The wife enters,
but does not register the will. The heir-at-law mortgages the
estate, find has it registered, and, upon a bill brought against him,
denies notice of the will. 13ut it was proved in evidence that- he
had notice: and the Court said, that, having notice of the tirst
purchase (though it was not registered), bound him ; and that
getting his own purchase lirst registered was a fraud ; the design
of those Acts being only to give parties notice who might other-
wise without such registry be in danger of being imposed on by
a prior purchase or mortgage, which they are in no danger of
when they have any notice thereof in any manner, though not by
the registry ; and that they would never suffer any Act of I'arlia-
ment made to prevent traud to be a protection to fraud ; and
therefore decreed for plaintiff', lookivg upon the transaction between
the heir-at-law and mortgagee to be collusive.

I mention this, not only as a material authority, but as deter-
mined by Lord King, who, we all know, was as willing to adhere
to the common law as any judge that ever sat here.

1 1 Eq. Ca. Ab. 308, pi. 13.

116 NOTICE.

The other case, of Cheval v. Nichols,^ was in the Court of Ex-
chequer, thci 10th of December, 17'25, before Lord Chief Baron
Gilbert, and is a clear authority for giving relief against the
Register Act upon an equity of notice. But then there were
charges of fraudulent circumstances besides, and therefore not so
similar to the present.

r*4^T *Consider, therefore, what is the ground of all this, and
•- -' particularly of those cases which v.'ent on the foundation
of notice to the agent. The ground of it is plainly this: That
the taking of a legal estate after notice of a prior right, makes a per-
son a mala fide purchaser; and not, that he is not a purchaser for
a valuable consideration in every other respect. This is a species
of fraud and dolus mains itself: for he knew the first purchaser
had the clear right of the estate, and after knowing that, he takes
away the right of another person by getting the legal estate.

And this exactly agrees with the definition of the civil law^ of
dolus malus. Dig. Lib. -1, tit. 3 : " Dolum malum Servius quidem ita
definit, machination em quandam alterius decipiendi causa, cum aliud
simulatur, et aliud agitur. Labeo autem, posse et sine simultatione
id agi ut quis circiimvenicdur : posse et sine dole malo aliud agi, aliud
simulari : siddifaciunt, qui per ejusmodi dissimulation em deserviant,
et tuenler vd sua vel aliena. Itaque ipse sic defniit dolum malum
esse oninem calliditatem fallaciam machinationem ad circumveni-
endum, fallendum, decipiendum alteram adhibitam. Labeonis
defivitio vera est."

I>ow, if a person does not stop his hand, but gets the legal es-
tate when he knew the right was in another, machinatur ad cir-
cumvenieudum. It is a maxim, too, in our law, th&tfraut et dolus
rtemini patrocinari debtnt. Vide Co., 3 Rep. 78, 7 Rep. 38.

Fraud, or mala fides, therefore, is the true ground on which the
Court is governed in the cases of notice ; and it is a consequence
of the decision of the former question that notice to the agent is
sufficient ; for if the ground is the fraud, or mala tides, of the
party, then it is all one whether by the party himself or his
agent : still it is a machinatio ad circumveniendum, and the put-
ting a copy of the first articl s aruL settlement into isorton^s hands, to
take the opinion of counsel in what manner they could be set aside, is
a contrivance to circumvent.

It has been said, if this woman has been imposed on by her
husband, she, instead of cheating, has been cheated.
r*4fil *But, then, who ought to suffer ? — the person intrusting
L -'an agent, or a stranger who did not employ him ? He,
certainly, who trusts most ought to suffer most.

Mrs. Hatt, the third mortgagee in the case in 2 Vern. 574, men-
tioned before, was imposed upon ; and so was Moore, in the other
case reported there,^ clearly imposed on: and yet, if this was to
be any excuse, it would make all the cases of notice very precari-
ous; for it seldom happens but the agent has imposed on hie

' 1 Stra. 064. ' Jennings v. Moore, 3 Vern. COD.

LE XEVE V. LB NEVE. 117

principal ; and, notwithstanding that, the person trusting ought
to suft'er for his ill-placed confidence.

Therefore, in both respects, as agent and trustee, notice to
Joseph JSorton is notice to defendant Mary likewise. And as to
the Registry Act, here is sufficient equity in the plaintiff to post-
pone the second articles and settlement, notwithstanding those
only have been registered. And decreed accordingly.

No equitable doctrine is better established than that so clearly and
forcibly laid down by Lord Hardwicke in the principal case, viz. : that
the person who purchases an estate (although for valuable considera'
tion) after notice of a prior equitable right, makes himself mala fide
purchaser, and will not be enabled, by getting in the legal estate, to de-
feat such prior equitable interest, but will be held a trustee for the
benefit of the person whose right he sought to defeat. " If," says his
Lordship, '' a person does not stop his hand, but gets the legal estate,
when he knew the right in equity was in another, machinatur ad sub-
veniendum ; and it is a maxim in our law, that fraus et dolus nemini
patrocinari debent. Fraud, or mala fides, therefore, is the true ground
on which tihe Court is governed in cases of notice."

It may be laid down as a general rule, that a purchaser, with notice
of a right in another, is in equity liable, to the same extent, ami in the
same manner, as the person from whom he made the purchase. For
instance, if a person contracts to sell an estate, or to grant leases
thereof, a purchaser, with notice of such contracts, is liable to the same
equity, stands in the same place, and is bound to do that which the ven.-
dor, whom he represents, would be bound to do by decree. Thus, in
an early case, A. contracted with B. to purchase lands of him ; and af-
terwards C, on *behalf of his son, purchased the same lands, and r^^ijl
took a conveyance from B. to his (C.'s) son in fee. On a bill by
A. to be relieved against this conveyance, the son pleaded himself to
be a purchaser bona fide, without any notice of B.'s contract with the
plaintifl', and without any trust for his father. But, it appearing that
C, the father, had notice of the plaintiff's contract before he purchased
for his son, the Court decreed in favour of the plaintiff: Merry v. Ab-
ney, 1 Ch. Ca. 38. See also Ferrars v. Cherry, 2 Vern. 3'84 ; Jackson^s
case, Lane 60 ; Uarl Brooke Bulkeley, 2 Ves. 498 ; Daniels v. David-
son, 16 Ves. 249 ; Crofton v. Ormsby, 2 S. & L. 583 ; Kennedy v. Daly,
1 S. & L. 355 ; Field v. Boland, 1 D. & Walsh, 3*7 ; Potter v. Sanders,
6 Hare, 1.

Upon the same principle, an estate in the hands of a subsequent pur-
chaser, or mortgagee, with notice of a prior defective mortgage, will be
bound by it. Thus, in a case where a person lent money on a surrender
of copyholds, which became void for want of presentment, and after-

118 NOTICE .

wards another person purchased the same lands from the mortgagor,
with notice of the prior surrender, and took a surrender and was ad-
mitted, the Court decreed the subsequent purchaser either to pay the
mortgagee his money, or to surrender to him the legal estate : Jennings
V. Moore, 2 Vern. 609; S. C, 2 Bro. P. C. 2^8, Toml. ed.

So also, a purchaser or mortgagee of the legal estate, with notice of
an equitable mortgage by deposit of title dee>ls, will be held a trustee
for the equitable mortgagee to the amount of his charge : Birch v.
Ellames, 2 Anst. 42T.

So, a purchaser having notice of an equitable lien for unpaid pur-
chase-money will be bound by it: Mackreth v. Symmons, 15 Ves. 349 ;
ante. Vol. 1, p. 289 ; Grant v. Mills, 2 V. & B. 306.

So also, a purchaser with notice of a trust will be bound in the same
manner as the person from whom he purchased ; Dunbar v. Tredennick,
2 Ball & B. 319; Pawlett v. Attorney-General, Hard. 465; Burgess v.
Wheate, 1 Eden, 195 ; Bovey v. Smith, 1 Vern. 149 ; Mansell v. Man-
sell, 2 P. "Wms. 681 ; Phayre v. Peree, 3 Dow. 129 ; Adair v. Shaw, 1
S. & L. 262 ; Wigg v. Wigg, 1 Atk. 382 ; Mead v. Lord Orrery, 3 Atk.
238 ; Mackreth v. Symmons, 15 Ves. 350 ; Saunders v. Dehew, 2 Vern.
2Y1 ; and see ante, p. II.

In the principal case, the postponement in a Register County — Mid-
dlesex— of a registered, to an unregistered conveyance, of which the
purchaser had notice, seems to have carried the doctrine of equity upon
this subject to a great length, and even to have infringed upon the
policy of the Registration Acts. " It has," says Sir William Grant, M.
P^,„-| R., "been much doubted *whether Courts ought ever to have
suffered the question of notice to be agitated as against a party
who has duly registered his conveyance ; but they have said, ' We can-
not permit fraud to prevail ; and it shall only be in cases where the no-
tice is so clearly proved as to make it fraudulent in the purchaser to
take and register a conveyance in prejudice to the known title of an-
other, that we will suffer the registered deed to be effected ; ' " Wyatt v.
Barwell, 19 Ves. 439 ; and see Chadwick v. Turner, 34 Beav. 634 ; W.
R. (M. R.) 44*7 ; 1 L. R. Ch. App. 310; Neve v. Pennell, 2 Hem. & Mill.
170. However, Le Neve v. Le Neue has been always considered a bind-
ing authority, although it may, perhaps, be regretted that notice of un-
registered deeds should, under any circumstances, be binding as against
a person claiming under a deed properly registered. See Co. Litt. 290
b., n. 13 ; Ford v. White, 16 Beav. 120, 123, 124 ; Benham v. Keane, 1
J. & H. 685, 101 ; 3 De G. F. & Jo. 318. Constructive notice, more-
over, has the same effect as actual notice as against a registered deed.
Thus, in a recent case, a registered marriage settlement was postponed
to an equitable mortgage of the same property prior in point of date,
but registered subsequently, in consequence of the trustees of the set-
tlement being held to be affected with notice of the equitable mortgage^

LB NEVE V. LE NEVE. 119

by reason of their not having inquired for the title deeds, wlien the ab-
stract was delivered to them : Wormald v. Maitland, 35 L. J. (N. S.)
Ch. 69 ; 13 W. R. (V. C. S.) 832; Re Allen, I I. R. Eq. 455. But see
Ghadwick v. Turner, 1 L. R. Ch. App. 310 ; Agra Bank v. Barry, 6
I. R. Eq. 128.

Where a person has taken a conveyance for valuable considerations
without notice of a prior unregistered deed, he may, upon acquiring
subsequent notice, gain priority by registering his conveyance. See
Elsey v. Lutyens, 8 Hare, 159 ; where it was held that a conveyance of
lands in Middlesex, by settlement upon the marriage of the settlor, re-
gistered under the statute tth Anne, c. 20, was effectual against a prior
unregistered conveyance, notwithstanding the party claiming under the
settlement had notice of the unregistered conveyance after the marriage,
but before the registry of the settlement.

So likewise, a subsequent incumbrancer who, at the time of taking
his security, had no notice of the prior incumbrance, may by properly
registering his security, though after notice, obtain priority over the
prior incumbrancer, if the security of the latter be defectively regis-
tered : Essex v. Baugh, 1 Y. & C. C. C. 620.

Registration is not of itself notice, so that a prior equitable incum-
brance will not, although registered, affect a subsequent purchaser
*without notice who has obtained the legal estate : Morecock v. r:(c i n-i
Dickins, Amb. 678 ; Bushell v. Bushell, 1 S. & L. 103.

There is, however, a material difference between the Register Act of
Ireland and the Register Acts of England. By the Irish Act, 6 Anne,
c. 2, an absolute priority is expressly given to the instruments first
registered, so that a subsequent purchaser for value having the legal es-
tate, although he has not notice of an equitable estate previously regis-
tered, will be bound by, and compelled to give effect to it. See Bushell
V. Bushell, 1 S. & L. 98 ; Latouche v. Lord Diinsany, Id. 159, 160 ;
Drew V. Lord Norhury, 9 Ir. Eq. Rep. 171 ; 3 J. & L. 267 ; Thompson
v. Simpson, 1 Dru. & War. 459 ; Mill v. Hill, 12 Ir. Eq. Rep. 107 ; 3
H. L. Cas. 828 ; Hunter v. Kennedy, 1 Ir. Ch. Rep. 148 ; Gorhett v. De
Cantillon, 5 Ir. Ch. Rep. 126 ; Ee Driscoll, 1 I. R. Eq. 285.

The doctrine of notice has no operation with reference to British
ships duly registered. See Hughes v. Morris, 2 De G. Mac. & G. 349 ;
M'Galmont v. Rankin, 2 De G. Mac. & G. 403; Liverpool Bank v.
Turner, 1 J. & H. 159j 2 De G. P. & Jo. 502 ; Goombes v. Mansfield, 3
Drew. 193 ; Orr v. Dickson, 1 Johns. 1 ; but see Stapleton v. Haymen,
12 W. R. (Ex.) 317, ante, vol. i. p. 803, 804.

It may here be observed, that it has been long since settled, that if a
person purchases for valuable consideration with notice, from a person
who bought without notice, he may shelter himself under the firs'; pur-
chaser, for otherwise, a bona fide purchaser would be unable to deal
with his property, and the sale of estates would be very much clogged:

120 NOTICE.

(Lowther v. Carlton, 2 Atk. 242;) and, without exception, even in the
case of a charity (Attorney-General v. Wilkins, IT Beav. 293; but see
Hast Orinstead^s case, Duke, 64), if a person who has notice sells to a
bona fide purchaser for a valuable consideration, without notice, the
latter may protect his title. See Harrison v. Forth, Prec. Ch. 51, the
leading case upon both branches of this doctrine. There A. purchased
an estate, with notice of an incumbrance, or that it was redeemable, and
then sold to B., who had no notice; who afterwards sold it to C, who
had notice ; the Master of the Rolls held, that the first notice to A., the
first purchaser, was thereby revived, and that C, the last purchaser,
should be liable to the incumbrance or redemption as if it had never
been in the hands of one who had no notice ; but afterwards, on appeal
to Lord Keeper Somers, it being urged, that, in such case, an innocent
purchaser without notice might be forced to keep his estate and could
not sell it, and should be accountable for all the profits received ab ini-
r^cni tio? '^is Lordship *held, that though A. and C. had notice, yet if
B. had no notice, the plaintiff could not be relieved against the
defendant C. The doctrine laid down in this case has ever since been
adhered to ; see Brandlyn v. Ord, 1 West. Rep. 512 ; S. C, 1 Atk. 571 ;
Lowther v. Carlton, 2 Atk. 242 ; Ferrars v. Cherry, 2 Vern. 383 ; Mer-
tins V. Jolliffe, Amb. 313 ; Sweet v. Southcote, 2 Bro. C. C. 66 ; M" Queen
V. Farquhar, 11 Ves. 467, 478.

Since, however, as a general rule persons taking equitable interests
take subject to all the equities affecting them, an equitable incumbrancer
on property, who has distinct notice of a prior incumbrance, cannot by
concealing his knowledge from a party claiming under him, make his
security more extensive, or give a better right to his assignee than that
which he himself possesses. Thus, in Ford v. White, 16 Beav. 120,
propertj' in Middlesex was mortgaged to A., and afterwards to B., and
subsequently to C, with notice of B.'s incumbrance. C. registered his
mortgage before B., and afterwards assigned to D., who had no notice
of B.'s mortgage. It was held by Sir John Romilly, M. R , that as C.'s
interest was equitable, he could not, by assigning it to D. without no-
tice, put him in a better situation than himself, and consequently that
D. was not entitled to priority over B.

If a trustee conveys to a person who has no notice of the trust, and
then takes a reconveyance, he having notice of the trust, it attaches on
him ; Kennedy v. Baly, 1 S. & L. 379.

A purchaser for valuable consideration of an estate, even with notice
of a voluntary settlement, will not be affected by it ; Buckle v. Mitchell,
18 Ves. 100; ante, vol. i. p. 283.

The vendor of land who has contracted to sell it, may convey to the
purchaser, and receive the balance of the purchase-money, without re-
gard to the receipt of a notice that the purchaser had agreed to assign
the contract to secure sums of monej' advanced to him. See M'Creight

LE NEVE V. LE NEVE. 121

V. Foster, 5 L. R. Ch. App. 604, where Lord Hatherley, L. C, observed,
" I should embarrass all future vendors, and should interfere far more
with the freedom of the sale of land, if I held that a party to a contract
could be arrested in the course of his proceeding to enforce or complete
that contract, by a notice that the other party had engaged to give some
one else the benefit of the contract by way of security for money lent ;
and that the person who gives the notice of this security, as to which
nothing is known except that the assertion is made, has a right to assist
at the completion, and to insist that the completion of the contract
shall be arrested until the rights are determined *bet ween the r:|<ri-|
party to the contract and this third party."

The same principle applies when the purchaser has before com-
pletion agreed to sell the estate, and has received part of the pur-
chase-money. See Crabtree v. Poole, 12 L. R. Eq. 13. There the
defendant Poole agreed to sell land to the defendant lyiortimer, with
immediate possession, the purchase to be completed in five years. Be-
fore completion Mortimer agreed to sell the land to the plaintiif, and
the agreement was registered in the district registry, with a receipt for
part of the consideration-money, which the plaintiif had laid out for Mor-
timer in buildings on the land. The plaintifi" offered to pay the vendor
the amount agreed upon between him and Mortimer, and applied for
the delivery of the abstract, but Poole refused to convey to him the
land in question, unless he would purchase other land also agreed to be
sold to Mortimer ; and shortly afterwards Poole and Mortimer con-
veyed the land to Holdsworth. On a bill filed by the plaintiff against
Poole and Holdsworth, alleging that the latter had constructive notice
of his title, and praying a conveyance of the estate, it was held by Lord
Romilly, M. R., that whether Holdsworth had such notice or not, the
conveyance to him could not be set aside. " I think," said his Lord-
ship, " this is a weaker case than M'Creight v. Foster. Here the plain-
tiff was told, and knew perfectly well, that Poole would not sell one of
the plots without the other."

Next, as to what constitutes notice.'] — Notice is either actual or con-
structive.

1st. As to actual notice, it will be unnecessary to say anything except
this : that mere vague reports from strangers, or mere general asser-
tions that some other persons claim a title, is not sufficient to affect a
person with actual notice (Wildgoose v. Wayland, Gouldsb. liT, pi. 6Y ;
Jolland V. Stainbridge, 3 Ves. 478 ; Fry v. Porter, 1 Mod. 300 ; Butcher
V. Stapely, 1 Vem. 363). Such notice, in order to be binding, must
proceed from some person interested in the propertj': Barnhart v.
Greenshields, 9 Moore's P. C. C. 36; The Natal Land,&c., Company
V. Good, 2 L. R. P. C. 121, 129.

2nd. As to constructive notice. — Constructive notice is defined to be
in its nature no more than evidence of notice, the presumption of which

122 NOTICE.

is so violent, that the Court will not even allow of its being contro-
verted : per Eyre, C. B., in Plumb v. Fluitt, 2 Anst. 438 ; and see Ken-
nedy V. Green, 3 My. & K. '719. It is by no means an easy matter to
say what amounts to constructive notice ; for much depends upo'n the
circumstances of each particular case, and the position of the persons
T-ifrn-] ^concerned in it. However, the able exposition of the law in a
well-known case, by the Vice-Chancellor Wigram, although
showing an anxiety, as far as possible, to avoid the appearance of de-
fining what in the abstract is to be deemed constructive notice in equity,
has cleared the subject of much difficulty. " It is scarcely possible,"
observes his Honor, " to declare a priori what shall be deemed construc-
tive notice, because, unquestionably, that which would not affect one
man may be abundantly sufficient to affect another. But I believe I may,
with sufficient accuracy for my present purpose, and without danger,
assert, that cases in which constructive notice has been established re-
solve themselves into two classes : first, cases in which the party
charged has had actual notice that the property in dispute was, in fact,
charged, incumbered, or in some way affected ; and the Court has there-
upon bound him with constructive notice of facts and instruments, to a
knowledge of which he would have been led by an inquiry after the
charge, incumbrance, or other circumstance affecting tlie property of
which he had actual notice ; and, secondly, cases in which the Court has
been satisfied, from the evidence before it, that the party charged had
designedly abstained from inquiry for the very purpose of avoiding
notice.

" The proposition of law, upon which the former class of cases pro-
ceeds, is not that the party charged had notice of a fact, or instrument,
which, in truth, related to the subject in dispute without his knowing
that such was the case ; but that he had actual notice that it did so re-
late. The proposition of law, upon which the second class of cases pro-
ceeds, is, not that the party charged had incautiously neglected to make
inquiries, but that he had designedly abstained from such inquiries, for
the purpose of avoiding knowledge — a purpose which, if proved, would
clearly show that he had a suspicion of the truth, and a fraudulent de-
termination not to learn it. If, in short, there is not actual notice that
the property is in some way affected, and no fraudulent turning away
from a knowledge of facts which the res gestae would suggest to a pru-
dent mind, — if mere want of caution, as distinguished from fraudulent
and wilful blindness, is all that can be imputed to the purchaser, — there
the doctrine of constructive notice will not apply ; there the purchaser
will, in equity, be considered, as in fact he is, a bona fide purchaser
without notice : " Jones v. Smith, 1 Hare, 55. See also Ware v. Lord
Egmont, 4 De G. Mac. & Gr. 413 ; Attorney-General v. Stephens, 6 De
G. Mac. & G. Ill ; Greenfield v. Edwards, 2 De G. Jo. & Sm. 582. It

LE NEVE V, LB NEVE. 123

Will be found, on examining *the cases, that they fall within one r*rq-|
or other, or both of these propositions. "- "'

Constructive notice by negligence or fraud.'] — Whatever is sufficient
to put a person upon inquiry is good notice ; that is, where a man has
sufficient information to lead him to a fact, he shall be deemed conusant
of it. Thus, if a man knows that the legal estate is in a third person at
the time he purchases, he is bound to take notice of what the trust is :
Anon. Freem. Ch. Ca. 137, c. 171. So the purchaser of a house has
been held to have notice of an agreement to grant an easement for the
passage of smoke to an adjoining owner, from the mere fact of there
being fourteen chimney-pots on the top of the house, whereas there were
only twelve flues in the house; Heruey v. Smith, 22 Beav. 299 ; and see
I>ames v. Sear, 7 L. R. Eq. 427, where it was held that the state of the
property at the time of the purchase was such as to be sufficient to put
the purchaser upon inquiry, which would have led him to a knowledge
of an easement of necessity, and he was therefore held to be fixed with
constructive notice thereof.

Upon the same principle notice that the title deeds are in another
man's possession may be held to be notice of any claim which he has
upon the estate, especially if the person having such notice appears stu-
diously to have avoided inquiry for what purposes they were deposited,
or the conveyance to him is to secure an antecedent debt : {Birch v.
Ellanies, 2 Anst. 427 ; Hiern v. Mill, 13 Ves. 114 ; Dryden v. Frost, 3
My. & Cr. 670, 673) ; but the mere absence of the title deeds has never
been held sufficient per se to affect a party with notice, if he has bona
fide inquired for the deeds, and a reasonable excuse has been given for
the non-delivery of them ; for in that case the Court cannot impute
fraud, or gross or wilful negligence to him {Plumb v. Fluitt, 2 Anst.
432; Evans v. Bicknell, 6 Ves. 174; Farrow v. Bees, 4 Beav. 18;
Hewitt V. Loosemore, 9 Hare, 449, 458 ; Finch v. Shaw, 19 Beav. 500 ;
S. C, nom. Colyer v. Finch, 5 H. L. Cas. 905 ; Boberts v. Croft, 24
Beav. 223 ; 2 De G. & Jo. 1 ; Perry Herrich v. Attwood, 2 De G. & Jo.
37 ; Carter v. Carter, 3 K. & J. 646 ; Hunt v. Flmes, 28 Beav. 631 ; 2
De G. F. & Jo. 578; Fspin v. Pe.mberton, 4 Drew. 333 ; 3 De G. & Jo.
547 ; Atterbtiry v. Wallis, 8 De G. Mac. & G. 454 ; Wormald v. Mait-
land, 35 L. J. Ch. 69 ; 13 W. R. (V. C. S.) 832 ; Hopgood v. Ernest, 3
De G. Jo. & Sm. 116; 13 W. R. (L. J.) 1004; Hipkins v. Amery, 2
Giff. 292 ; Dowle v. Saunders, 2 Hem. & Mill. 242.

But the Court will impute fraud, or gross and wilful negligence to
a person dealing respecting an estate, if he omits all inquiries *as r^r i-i
to the deeds, and will hold him to have notice of those circum-
stances which, had he not neglected his duty, would have come to his
knowledge ; Worthington v. Morgan, 16 Sim. 547 ; Heivitt v. Loose-
more,^ 9 Hare, 458; Finch v. Shaw, 19 Beav. 511 ; Alle7i v. Knight, 5
Hare, 273; 11 Jur 527, and see note to Bussell v. Bussell, vol. i. p.

124 • NOTICE.

68T ; Whitbread v. Jordan, 1 Y. & C, Exch. Ca. 303 ; Jones v. Wil-
liams, 24 Beav. 4Y ; Peto v. Hammond, 30 Beav. 495 ; and see Jones v.
Smith, 1 Hare, 64 ; 1 Ph. 255.

Special conditions- of sale, limiting the extent of title, will be no ex-
cuse for a purchaser not insisting on the production of a deed beyond
those limits of which he has notice ; Peto v. Hammond, 30 Beav. 495.

But although a purchaser who omits to call for the title deeds will be
affected with the knowledge which he might have obtained by inquiry,
that they were in the possession of some holder for value, he will not
be atfected with the knowledge of a fraud committed by the person of
whom he was bound to make the inquiry : Hipkins v. Amery, 2 Giff.
292, 301.

Constructive notice by recital or reference.] — Where the purchaser
cannot make out a title but by a deed, which leads him to another fact,
the purchaser shall not be a purchaser without notice of that fact, but
shall be presumed cognisant thereof ; for it is crassa negligentia that he
sought not after it; Moore v. Bennet, 2 Ch. Ca. 246; Bacon v. Bacon,
Tothill, 133 ; and it is immaterial whether the deed leads him to the
knowledge of that fact by description of the parties, in recital, or other-
wise. Thus, in Bisco v. Earl of Banbury, 1 Ch. Ca. 28'7, a party pur-
chased with actual notice of a specific mortgage. The deed creating
this mortgage referred to other incumbrances. The question was,
whether the purchaser was to be affected with notice of the incum-
brances which the deed creating the mortgage disclosed. The language
of the Lord Chancellor, in that case, lays down an important and well-
established rule, namely, " that the purchaser could not be ignorant of
the mortgage, and ought to have seen that, and that would have led
him to the other deeds, in which, pursued from one to another, the
whole case must have been discovered to him." So, in Coppin v.
Fernyhough, 2 Bro. C. C. 291, the mortgagee of a lease which recited
the surrender of a former lease, which was in consideration of the sur-
render of the former lease in which the plainti3''s title appeared, was
held to have notice of that title. This case decides, in effect, that a pur-
chaser who has actual notice of one instrument affecting an estate, has
constructive notice of all other instruments to which aa examination
r*cc-| *of the first could have led liim. And see Nixon v. Robinson, 2
J. & L. 14 ; Roddy v. Williams, 3 J. & L. 1 ; Hope v. Liddell,
21 Beav. 183 ; Barber v. Brown, 3 Jur. IST. S. 18.

So, in Davies v. Thomas, 2 Y. & C. Exch. Ca. 234, the purchaser had
actual notice that the propertj' in question was affected by a marriage
settlement, and this settlement, when referred to, gave notice of a will.
The Court decided that the purchaser had notice of the will. This
case, however, has been questioned, ante, vol. i., p. 326. In Eyre v.
Dolphin, 2 Ball & B. 290, the tenant for life under a settlement renewed
a lease of the settled property in his own name, and for his own benefit.

LENEVEV.LENEVE. 125

The Court held, that he was a trustee of the renewed lease for the par-
ties interested under the settlement. The Court also held (a point upon
wliich there could be no doubt), that a purchaser from the tenant for
life, with actual notice of the above facts, could be in no better position
than the tenant for life himself. In Malpas v. Ackland, 3 Russ. 273,
the lessee accepted a lease of the premises, and the lease contained a
recital, that Hannam, one of the parties to the lease, was seised to him
and his heirs of the leasehold premises, " upon trust for the use and be-
hoof of W. Malpas and Susannali his wife, and George Colman (three
other parties to the lease), for such estates in possession, reversion, or re-
mainder, as they become entitled to after the decease of Mary Colman,
and that the trust had devolved on Hannam." The Court held, tliat
the lessee was affected with notice of the trust, whatever that trust
might be.

In Ferrars v. Cherry, 2 Vern. 383, the defendant purchased an es-
tate, witli notice of a post-nuptial settlement, which comprised the es-
tate in dispute ; it was argued in his behalf, that there was no recital of
the articles for a settlement entered into before the marriage ; and that,
for aught appeared to the defendant, the deed was fraudulent as against
a purchaser ; but the Court held, that he ought to have inquired of the
wife's relations, who were parties to the deed, whether it was voluntary
"or made pursuant to an agreement before marriage, and, having notice
of the deed, must purchase at his peril, and be bound by the effect and
consequence of the deed.

A purchaser will have notice of a title, by the concurrence in his con-
veyance of persons interested under that title as devisees {Burgoyne v.
Satton, Barn. Ch. Rep. 237) ; and the circumstance that, upon a re-
newal of a lease, the lessors are not the same persons who were lessors
in the original lease, is one which ought to lead the lessee to inquire
into their title, and is sufficient to fix him *with notice of a trust : [-*gg-i
Attorney- General v. Hall, 16 Beav. 388. So, the fact of a mar-
ried woman being party to an under-lease has been held notice of her
title : Steedman v. Poole, 6 Hare, 193 ; 16 L. J. N. S. Ch. 348.

A purchaser with notice of a deed, is bound by all its contents.
Thus, notice of a lease necessarily imparts notice of the covenants con-
tained in it ; Taylor v. Stibbert, 2 Ves. jun. 437 ; see also Hall v. Smith,
14 Ves. 426 ; Pope v. Garland, 4 Y. & C. 394 ; Walter v. Maunde, 1 J.
& W. 181; Si^iunner v. Walsh, 10 Ir. Eq. Rep. 386, 400; Tannery.
Florence 1 Ch. Ca. 259 ; Lewis v. Bond, 18 Beav. 85 ; Wilbraham v.
Livesey, lb. 206 ; Cosser v. Collinge, 3 M. & K. 282 ; Martin v. Cotter,
3 J. & L. 506; Grosvenor v. Green, b Jur. N. S. 117; Vignolles v.
Bowen 12 Ir. Eq. Rep. 194; Vaughan v. Magill, lb. 200; Stewart v.
Marquis of Conyngham, 1 Ir. Ch. Rep. 207, 534; Smith v. Capron, 7
Hare, 191; Drysdale v. Mace, 2 Sm. & G. 225; Cox v. Coventon, 31
Beav. 379 ; Clements v. Welles, 1 L. R. Eq. 200 ; 35 Beav. 513.

126 NOTICE.

In cases, however, where specific performance of a contract is sought
to be enforced, the rule that notioe of a lease will affect the purchaser
with notice of the covenants contained in it, is not of universal applica-
tion, for there may have been such a degree of misrepresentation in the
particulars of sale, as for instance when a lease contains unusual cove-
nants, as may induce the Court to refuse its assistance. " I can ima-
gine," said Lord Chancellor Sugden, " a covenant in a lease, which
would so deteriorate the property as to destroy the interest of tlie sel-
ler in it ; and the particulars might state some of the covenants, and
omit that. Such a description might amount to fraud in the sale. I
agree that if a purchaser had notice that the property was held under a
lease, he cannot object that he had no notice of any particular covenant
therein contained. He must look closely, and be active, in order to
ascertain whether there is any such as would materially prejudice him.
The rule perhaps has been carried a little too far. It is a question of
bona fides. Where the purchaser has completed his purchase the rule
is right ; but where the purchaser is only bidding for something, and
has not been informed of the obligations to which he will be liable in
becoming the purchaser, it is always a question of bona fides : Martin
v. Cotter, 3 J. & L. 506. And see Bessonet v. Robins, Sausse & Sc.
142; Van v. Carpe, 3 My. & K. 269, 277; Pope v. Garland, 4 Y. &
C. 401 ; Flight v. Barton, 3 My. & K. 282 ; Darlington v. Hamilton',
Kay, 550.

Upon the same principle it has been held by Sir John Romily, M. E.,
in Wilbraham v. Livesey, 18 Beav. 206, that although a person who
rjf^yj-i contracts for a lease from another, with the knowledge *that he
holds under a leasehold title, has notice of the ordinary cove-
nants in the original lease, he will not be held to have notice of pecu-
liar and unusual covenants. " In this case," said his Honor, " though
there is distinct notice that the plaintifi' was lessee, there was no notice
except of ordinary and usual covenants, and covenants in restraint of
trade are not usual covenants, although in some localities they are com-
mon. The case might be varied by the particular situation of the
property, as if a house were situated in Grosvenor Square, I do not
say that a covenant against converting the house into a shop would be
unusual ; but it cannot be said that a covenant in restraint of trade, in
a situation where trade is usually carried on, is a usual and ordinary
covenant."

A purchaser is not imperatively bound to inquire whether he has no-
tice of an instrument, only because by possibility it may afl'ect the sub-
ject of his purchase. Thus in Gothay v. Sydenham, 2 Bro. C. C. 391, a
purchaser had notice that a draft of a deed was prepared, but not that
a deed was executed ; and it was held that he was not bound by notice
of the deed, although in fact it was executed. "If," said Lord Thur-
low, " the notice had been of a deed actually executed, it certainly

LE NEVE V. LE NEVE. 127

■would do, but where the notice is not of a deed, but only of an inten-
tion to execute a deed, it is otherwise ; there is no case or reasoning
which goes so far as to say that a purchaser shall be affected by notice
of a deed in contemplation."

Moreover, notice of a deed, accompanied by a statement of its con-
tents, which is erroneous, does not necessarily give a person notice of
its real contents. Thus in Jones v. Smith, 1 Hare, 43, Smith, before
advancing money on a mortgage, inquired of Jones the mortgagor and
his wife, whether any settlement had been made upon their marriage ;
and was informed that a settlement had been made, but of the wife's for-
tune only, and that it did not include the husband's estate, which was
proposed as the security ; and he afterwards advanced the mortgage
money without having seen the settlement or known its contents, upon
the security of a term prior in date to the settlement. It was held, by
Sir J. Wigram, V. C, that the mortgagee was not, under the circum-
stances, affected with constructive notice of the contents of the settle^
ment, or of the fact that the settlement comprised the husband's estate.
" This ease," said his Honor, " cannot be brought within the scope of
the authorities which at once establish and limit the cases to which the
doctrine of constructive notice is applied. For, first, it is incontro-
vertiblj' clear, that Smith had not actual notice of the mortgaged prop-
erty being in any way affected *with the plaintiflTs interest. The r^itcQ-i
contrary of this has not been suggested, and the point, therefore,
requires no observation. Therefore, secondly, if Smith's estate is to be
affected by the plaintiff's claim, it must be upon the ground of his hav-
ing purposely avoided inquirj-, in order to avoid discovery. But is
such a supposition consistent with a single fact in this case ? His debt
was not like that of Boulnois, in Whitbread v. Jordan (1 Y. & C. Bxch.
Ca. 303), an antecedent debt, for which he might be glad to get any
security. The advance of his money was contemporaneous with the
mortgage which secures it. His mortgagor was a needy man, and the
evidence proves that Smith, at the time for treating for the first mort-
gage, so considered him. The letter of October, 1826, which the plain-
tiff has put in evidence, suggests the fraud which was practised upon
Smith ; and the evidence of Sarah Jones proves the suggestions in that
letter to be true. Where is the ground for questioning the honesty and
bona fides of Smith, even if his caution could be successfully impeached ?
How can anything, exceeding want of caution, be imputed to the man
who parts with his money upon the bare faith of a security, without any
assignable motive ? The only knowledge Smith had was, that there was
a settlement. But the contemporaneous assertion respecting that set-
tlement was, that it related to other property than the husband's. A
simple denial by Jones and his wife, that there was any settlement af-
fecting Jones's property, would clearly have made Smith safe. How
can it be argued, that such denial is qualified by the statement that

128 NOTICE.

there is a settlement relating to other property ? Nay, more, is not the
apparent candour of that statement calculated rather to inspire confi-
dence than to excite suspicion and lay a foundation for inquiry ? If
Smith was bound to inquire after one deed of -which he was told nothing,
except that it did not relate to Jones's estate, why, upon the same prin-
ciple, should he not be bound to examine any other deed, of the mere
existence of which he had notice ? If notice of the existence of a settle-
ment, declared not to affect the husband's estate, is to put a purchaser
upon inquiry, only because it may by possibility affect it, how can the
plaintiff stop short of the conclusion, that marriage alone should be con-
structive notice of any settlement that may have been executed ? And
why, upon the same principle, should not every man who deals with his
neighbour, without knowing he is married, be affected with notice of
Lis marriage (if anj^), and thence with notice of the contents of the set-
tlement ? The basis of the plaintiff 's argument is this : that a pur-
chaser is imperatively bound to inquire, wherever he has notice of a
|-^. „-| fact which by *bare possibilitj'^ may affect the subject of his pur-
chase The affairs of mankind cannot be carried on

with ordinary security, if a doctrine like that of constructive notice is
to be refined upon until it is extended to cases like the present. I should
myself incline to limit the cases to which the doctrine is applied, rather
than to extend them, were it not that the principle upon which these
cases are decided, is sound in itself, and that it is better to carry out a
sound principle to its just limits, even at tlie occasional expense of in-
dividual hardship, than render the law uncertain and fluctuating, by
arbitrarily refusing to apply an acknowledged principle to cases within
its range." This case, on appeal, was affirmed by Lord Lyndhurst, 1
Ph. 244. See, also, Allen v. Knight, 5 Hare, 212, 11 Jur. 521 ; Bird v.
Fox, 11 Hare, 40 ; Ware v. Lord Egmont, 4 De G. Mac. & G. 460, 473,
414 ; Harryman v. Collins, 18 Beav. 11 ; Re Bright's Trusts, 21 Beav.
430.

The same principle is applicable as between vendor and purchaser
in eases of sales of property : thus, although where a deed is simply re-
ferred to in particulars of sale, without mentioning its contents, and
the deed can be examined by the purchaser, he will be bound by every-
thing contained in the deed ; but if the vendor, instead of referring the
purchaser to the deed to ascertain its contents, himself states what the
contents are, the purchaser is not bound to examine the deed, but may
reasonabljr trust to the representation of it contained in the particulars
of sale, as being the correct statement of its contents : Cox v. Goventon,
31 Beav. 318, and see Grosvenor v. Green, 28 L. J. Ch. (N. S.) 113.

It was argued in Jones v. Smith, 1 Hare, 60, that a purchaser from
an heir-at-law, with notice of a will by the ancestor, under whom the
heir claimed, would be affected with notice of the contents of that will,
although he was ignorant of such contents, and even misled by the heir

LB NEVE V. LE NEVE. _ 129

at the time of his purchase. But Sir J. Wigram, V. C, in his judgment
said, that the question must depend upon circumstances. If the testa-
tor had been long dead, and the heir long in possession, and tlie other
circumstances of the case such as to leave the purchaser in credit for
perfect good faith, he thought a Court of equity would not interfere
against the legal title, only because the purchaser had notice of a will
respecting which he was misled. If the death of the testator were re-
cent, other considerations might arise affecting the purchaser with the
imputation of a fraudulent blindness. And see Burgoyne v. Hatton,
Barn. Ch. Rep. 237 ; West v. Reid, 2 Hare, 257.

The purchaser of the estate of an insolvent debtor from his assignees,
*at a sale by auction, M'ill not be affected by constructive notice r^/./^-]
of circumstances of negligence on the part of the assignees in
conducting the sale, such circumstances being entirely collateral to any
question of title : Borell v. Dann, 2 Hare, 440.

The purchaser of a charity lease takes, with notice of the facts thereon,
showing its equitable invalidity (Attorney- General v. Pargeter, 6 Beav.
150 ; Attorney-General v. Pilgrim, 12 Beav. 57). Secus, where the facts
depend on circumstances dehors the lease; Attorney-General v. Bach-
house, 17 Ves. 293 ; 3 Ridg. P. C. 512.

It seems that a purchaser is bound by notice of articles, the construc-
tion of which is dubious, see vol. i. p. 42, 43 ; Lloyd v. Banks, 4 L. R.
Eq. 222 ; Re Brown's Trusts, 5 L. R. Eq. 88.

A general recital in a deed, that there were mortgages on the estate,
was held to affect parties claiming under the deed with notice ; Farrow
v. Bees, 4 Beav. 18 ; and see Eland v. Eland, 1 Beav. 18.

In Taylor v. Baker, 5 Price, 306, a person had made an equitable
mortgage to A., and afterwards giving a security to another person,
stated that he had given a judgment or warrant of attorney to A. for
money borrowed of him ; and this was held to be sufficient notice of the
mortgage. This case has been recognised and approved of by Lord Cot-
tenham, in Penny v. Watts, 1 Hall & T. 266 ; 1 Mac. & G. 150. In that
case, on the marriage of the defendant with A., who, under the will of
her former husband, was entitled to certain real estates, charged with a
legacy of 2000Z., payable to B., a feme sole, the defendant had notice
that B., while sole, had released this legacy to A., and that A. had in
consequence devised to B. a certain part of the real estates ; it was held,
by Lord Cottenham, reversing the decision of Sir J. L. Knight Bruce,
V. C. (reported 2 De G. & Sm. 501), that the knowledge of these facts
rendered it incumbent on the defendant to have made further inquiries,
and affected him with constructive notice of an equitable title acquired
by the husband of B., under a subsequent agreement with A. to have
the devised estate conveyed to him. And see Tildesley v. Lodge, 3
Sm. & Giff. 543.

Uppn the same principle it was held that notice of a charge to an in-
YOL. II 9

130 NOTICE.

definite amount, although the notice was inaccurate as to the particu-
lars or extent of the charge, was sufficient to put upon inquiry a party
dealing for the property subject to the charge ; and though the actual
charge afterwards appeared to be incorrectly described in the notice, it
was nevertheless sufficient, as a ground for giving priority for the true
amount of the charge, as against the party who received the incorrect
p^„,-| notice, *but made no inquiry ; Gibson v. Tngo, 6 Hare, 112, 124.
And see Gurney v. Lord Oranmore, 5 Ir. Ch. Rep. 436 ; Jones
y. Williams, 24 Beav. 47.

With reference to the case of Penny v. Watts, it must be remarked,
that it has been considered as having carried the doctrine of notice too
far (Sugd. V. & P. 766, 14th ed.). And in a recent case in Ireland,
Lord Chancellor Brady said, that it seemed to require much examina-
tion before it could be received as established law ; Abbott v. Geraghty,
4 Ir. Ch. Rep. 23. And in another case, a purchaser was held not to be
fixed with notice of a deed by evidence that he had notice of an annuity
created by that deed, which, from the notice given of its existence, ap-
peared to have expired many years before the purchase ; Stephenson v.
Soyce, 5 Ir. Ch. Rep. 401.

And it has been recently held, that if a man is purchasing or taking
a mortgage over a large estate as to which the title is furnished to him,
chooses, as to a small portion, to be content with a short title, he will
not as to all the rest of the estate be affected with notice of something
which he might have found out if he had investigated the earlier title
to the small portion. Per Lord Hatherley, L. C, in Hunter v. Walters,
7 L. R. Ch. App. 83.

Constructive notice by tenancy.'] — If a person purchases an estate
which he knows to be in the occupation of another than the vendor, he
is bound by all the equities which the party in such occupation may
have in the land ; for possession is prima facie seisin, and the purchaser
has, therefore, actual notice of tlie fact by which the property is af-
fected, and he is bound to ascertain the truth. Thus, if a person pur-
chases property in the occupation of one whom he supposes to be only
a tenant from year to year, he will be held to have notice of a lease
under which he holds, and of the contents of it ; Taylor v. Stibbert, 2
Ves. jun. 437, 440 ; where Lord Rosslyn says, '' I have no difficulty to
lay down, and am well warranted by authority, and strongly founded
in reason, that whoever purchases an estate from the owner, knowing it
to be in the possession of tenants, is bound to inquire into the estates
these tenants have. It has been determined, that a purchaser being
told particular parts of the estate were in possession of a tenant, with-
out auy information as to his interest, and taking it for granted it was
only from year to year, was bound by a lease that tenant had, which
Was a surprise upon him. That was rightly determined; for it was suf-
ficient to put the purchaser upon inquiry, that he was informed the es-

LB NEVE V. LE NEVE. 131

tate was not in the actual possession of the person with whom he con-
tracted ; *that he could not transfer the ownership and posses- r*/.9-|
sion at the same time ; that there were interests as to the extent
and terms of which it was his duty to inquire." And see Jones v.
Smith, 1 Hare, 60 ; James v. Lichfeld, 9 L. R. Eq. 51.

And the equity of the tenant extends not only to interests connected
with his tenancy, but also to interests under collateral agreements.
Thus, if the tenant in possession has entered into a contract for the pur-
chase of the estate, a subsequent purchaser will be held to have had
constructive notice of the contract, as he was bound to make inquiry
from the tenant which would have led him to a knowledge of it {Dan-
iels V. Davison, 16 Yes. 249; S. C, 11 Ves. 433; Douglas v. Witter-
wronge, 16 Ves. 254, cited; Lewis v. Bond, 18 Beav. 85 ; Wilbraham
V. Livesey, lb. 206 ; and see Grofton v. Ormsby, 2 S. & L. 583 -^ Meux
V. Malthy, 2 Swanst. 281 ; Powell v. Dillon, 2 Ball & B. 416 ; Bailey v.
Richardson, 9 Hare, '734, and the comments thereon in Barnhart v.
Greenshields, 9 Moore, P. C. C. 33, 34 ; Thomas v. Dairies, 9 W. R.
(V. C. S.) 831) ; even although the interest which the tenant may have
were posterior to the lease under which he held ; Allen v. Anthony, 1
Mer: 282. But Daniels v. Davison has always been considered an ex-
treme case, beyond which the doctrine ought not to be extended. Ac-
cordingly it was said by Lord Cottenham, then Master of the Rolls,
that " although it is true that where a tenant is in possession of the
premises, a purchaser has implied notice of the nature of his title ; j'et
if, at the time of the purchase, the tenant in possession was not the
original lessee, but merely held under a derivative lease, and had no
knowledge of the covenant contained in the original lease, it had never
been considered want of due diligence in the purchaser, which was to
fix him with implied notice, if he did not pursue his inquiries through
every derivative lessee, until he arrived at the person entitled to the
original lease, which could alone convey to him information of the cove-
nant ; " Eanhury v. Litchfield, 2 My. & K. 633 ; Jones v. Smith, 1 Hare,
62. And, in Penny v. Watts, it seems to have been considered doubt-
ful whether the mere occupation by a person of property would be no-
tice of an agreement not connected with his occupation. See 2 De Gr.
& Sm. 150 ; 1 Mac. & G. 150 ; 1 Hall & T. 266. And see Nelthorpe v.
Holgate, 1 Coll. 203.

It has been recently laid down that " the question of notice concern-
ing the right to an easement is like those cases in which notice of pos-
session by a tenant of land is notice of the terms of his holding ; " per
Sir W. Page Wood, *V. C, in Hervey v. Smith, 1 K. & J. 394 ; r*g3-|
see S. C, 22 Beav. 299 ; Eyle v. O'Connor, 16 Jr. Ch. Kep. 46 ; '"
Davies v. Sear, 1 L. R. Eq. 427.

So where the mortgagee of a burial ground had notice of the pur-
poses to which it was devoted, he was held to be bound by rights of

132 NOTICE.

burial temporary or in perpetuity granted by his mortgagor while left
in possession ; Moreland v. Richardson, 24 Beav. 33.

If the possession is vacant, the purchaser is not bound to inquire as
to the title of the last occupier, and will, therefore, not have construc-
tive notice of the information he might have obtained by such inquiry.
Thus in Miles v. Langley, 1 Russ. & My. 39, where a person purchased
an estate described as " late the residence of Thomas Hellicar," and it
appeared that Thomas Hellicar had, theretofore, held and occupied the
land in question under an agreement ; it was argued upon the authority
of Daniels v. Davison, that the purchaser was bound to have inquired
what the interest of Hellicar was under his late " late occupation ; " but
Sir J. Leach, Y. C, held, that the obligation to inquire did not arise in
the case of vacant possession. His Honor said, that Lord Eldon's prin-
ciple, in Daniels v. Davison, could not, where the possession was va-
cant, be extended to tiie last occupier. This decision was confirmed by
Lord Brougham (2 Russ. & My. 626), upon the express ground that a
contrary decision would have extended the doctrine laid down in Dan-
iels V. Davison; for, in that case, the purchaser had, whereas, in Miles
V. Langley, he had not, actual notice of a fact affecting the subject-mat-
ter of the contract. See Jones v. Smith, 8 Hare, 62.

The rule that a purchaser has notice of the rights of the tenant is not
limited to the terre tenant, who is in the actual occupation, but it ex-
tends to the person who is known to receive the rents from the occupier
of the land. Thus, in Knight v. Bowyer (2 De G. & Jo. 421), where the
purchaser of a charge upon an estate had notice that the rents were re-
ceived by a person who was not the owner of the estate, it was held by
the Court of Appeal in Chancery afHrming the decision of Sir John
Romilly, M. R. (23 Beav. 609), that the notice that the tenants paid
their rents to such person, was notice of the instrument under which
they were compelled to pay them, and of the rights of all parties there-
under.

Where a man is of right in possession of a corporeal hereditament,
he is entitled to impute knowledge of that possession to all who deal
for any interest in the property, and persons so dealing cannot be heard
to deny notice of the title under which the possession is held, nor is it
r*641 *ii6cessary that such possession should be continually visible or
actively asserted. See Holmes v. Powell, 8 De G. Mac. & G.
572. There the purchasers of mines took possession under the agree-
ment for purchase without any conveyance. Afterwards a person pur-
chased the land without any exception of the mines. It was held by
the Lords Justices of the Court of Appeal, affirming the decision of Sir
John Stuart, V. C, that the purchaser of the land took with notice of
the agreement, and was bound specifically to perform it.

Moreover, a lessee (Fielden v. Slater, 1 L. R. Eq. 523), sub-lessee
(Parker v. Whyte, 1 H. & M. 161), or tenant from year to year (Wilson

LE NEVE V- LE NEVE. 133

V. Hart, 1 L. R. Ch. App. 463 ; lb. 2 H. & M. 551, who enters without
inquiries will be taken to have notice of that which he would have found
out, if he had made such inquiries ; and see Clements v. Welles, 1 L. R.
Eq. 200 ; 35 Beav. 513.

The following summary of the law, of Lord Justice Turner, is both
clear and accurate : " It cannot, I think, be denied that, generally speak-
ing, a purchaser or mortgagee is bound to inquire into the title of his
vendor, or mortgagor, and will be affected with notice of what appears
upon the title if he does not so inquire ; nor ca*n it, I think, be disputed
that this rule applies to a purchaser or mortgagee of leasehold estates,
as much as it applies to a purchaser or mortgagee of freehold estates,
or that it applies equally to a tenant for a term of years ; and T cannot
see my way to hold that a rule which applies in all these cases, ought not
to be held to apply in the case of a tenant from year to year. The dif-
ference in the cases seems to me to be only in the quantum of injury
which falls upon the party to whom the rule is applied ; " Wilson v.
Hart, 1 L. R. Ch. App. 467.

The possession, however, of a vendor of an estate which he has sold
will not be constructive notice of any lien he may have for unpaid pur-
chase-money, if he has signed the usual receipt on the conveyance for
the whole purchase-money ; for, after that, no man could be expected
to inquire whether the purchase-money had been paid: White v. Wake-
field, 7 Sim. 401. And see Rice v. Rice, 2 Drew. 1 ; Mair v. Jolly, 26
Beav. 143 ; Wilson v. Keating, 4 De G. & Jo. 588 ; and the note to
Mackreth v. Summons, ante, vol. i. p. 826, 327.

Notice of a tenancy will not, it seems, affect a purchaser with con-
structive notice of the lessor's title (per Wigram, V. C, in Jones v.
Smith, 1 Hare, 63) ; nor will a purchaser bona fide and without notice
be affected by the mere circumstance of the vendor having been out of
possession many years : Oxwith v. Plumer, Bac. Abr., tit. " Mortgage "
(E.), sect. *8 ; S. C, 2 Vern. 636 ; S. C, Gilb. Eq. Rep 13 ; and p ,-.
see the remarks on this case in Barnhart v. Oreenshields, 9
Moore's P. C. C. 34, 35 ; and in the Attorney- General v. Backhouse, 17
"Ves. 293, where the question aroi=e upon the validity of a lease of
charity-lands. Lord Eldon, speaking of the position of the assignee of
the lease, said, " Though the purchaser of a lease has never been con-
sidered as a purchaser for valuable consideration without notice, to the
extent of not being bound to know from whom the lessor derived his
title, I am not aware of any case that has gone the length that he is to
take notice of all those circumstances under which the lessor derived
that title."

Constructive notice between principal and agent."] — It is clear, as is
laid down in the principal case, that notice to an agent, attorney, or
counsel of a purchaser, is constructive notice to their principal ; for, if
it were otheTwise, it would cause great inconvenience, and notice would

134 NOTICE.

be avoided in every case by employing agents ; Sheldon v. Gox^ 2 Eden,
228 ; Newstead v. Searles, 1 Atk. 265 ; Tamtall v. Trappes, 3 Sim. 301 ;
Dryden v. Frost, 3 M. & C. 670; Lenehan v. M'Cabe, 2 Ir. Eq. Rep.
342 ; Richards v. Gledstanes, 3 GifF. 298 ; Atterbury v. Wallis, 8 De G.
Mac. & G. 454.

The same rule applies if, As in the principal case, the}'- are concerned
for both vendor and purchaser in the same transaction (Sheldon v. Cox,
2 Eden, 224 ; Fuller v. Bennett, 2 Hare, 402 ; M'Mahon v. II'Elroy, 5
I. R. Eq. 1) ; even if they be themselves the vendors {Majorihanks v.
Hovenden, 6 Ir. Eq. Rep. 238 ; Dru. 11 ; Atkyns v. Delmege, 12 Ir. Eq.
Rep. 1 ; Twycross v. Moore, 13 Ir. Eq. Rep. 250 ; Robinson v. Briggs--,

1 Sm. & Giflf. 188 ; Tucker v. Henzill, 4 Ir. Ch. Rep. 513 ; Spencer v.
Topham, 2 Jur. N. S. 865 ; In re Rorke, 13 Ir. Ch. R. 273 ; 14 Ir. Ch.
Rep. 442) or when the same solicitor acts both for the mortgagor and
mortgagee ( Tweedale v. Tweedale, 23 Beav. 341) ; and notice to a soli-
citor in the country is notice to a person acting in a cause by a town
agent {Norris v. Le Neve, 3 Atk. 26) ; and notice is binding even upon
infants, where a sale is made under a decree of the Court (Toulmin v.
Steere, 3 Mer. 210 ; or although the conveyance is made to a third per-
son (Goote V. Mammon, 5 Bro. P. C. 355, Toml. ed.).

And where moneys which formed part of a larger sum placed by a
client in the hands of his solicitor for the purposes of investment, were
lent by him on the security of a mortgage in which he had affected to
act as principal, the client was held to be bound by the notice of all the
r*fif;"| circumstances which came within the solicitor's ^knowledge;
Spaight v. Cowne, 1 Hem. & Mill. 359.

However, notice to counsel, agents, or solicitors must, in order to
affect their employer, have been given or imparted to them in the same
transaction ; for, if the law were otherwise, " it would," as observed by
Lord Hardwicke, " make purchasers' and mortgagees' titles depend al-
together on the memory of their counsellors and agents, and oblige them
to apply to persons of less eminence as counsel, as not being so likel}'
to have notice of former transactions : " Warrick v. Warrick, 3 Atk.
294 ; Fitzgerald v. Falconberge, Fizgibb. 207 ; Worsley v. Earl of Scar-
borough, 3 Atk. 392 ; Steed v. Whilaker, Barnard, Ch. Rep. 220 ; Hine
V. Dodd, 2 Atk. 275 ; Ashley v. Bailey, 2 Ves. 368 ; Lowther v. Carlton,

2 Atk. 242 ; Fuller v. Bennett, 2 Hare, 394 ; Tylee v. Webb, 6 Beav. 552 ;
S. €., 14 Beav. 14 ; Finch v. Shaw, 19 Beav. 500 ; 5 H. L. Gas. 905 ;
In re Smallman's Estate, 2 I. R. Eq. 34.

The same exception seems to apply, even if the notice is personal : as,
" if a man purchase an estate under a deed, which happens to relate also
to other lands not comprised in that purchase, and afterwards pur-
chases the other lands to which an apparent title is made, independent
of that deed, the former notice of the deed will not of itself affect him
in the second transaction ; for he was not bound to cany in his recol-

LE NEVE V. LE NEVE, 135

lection those parts of a deed which had no relation to the particular
purchase he was then about, nor to take notice of more of the deed than
aflfected his then purchase." Per Lord Redesdale in Hamilton v. Boyse,
2 S. & L. 32T.

Where, however, one transaction is closely followed by, and connected
with another ; or where it is clear that a previous transaction is present
to the mind of the soHcitorwhen engaged in another transaction, there
is no ground for the distinction by which the rule that notice to the
solicitor is notice to the client, had been restricted to the same transac-
tion. Per Lord Langdale, M. R., in Hargreaves v. Bothwell, 1 Kee.
159 ; and see Winter v. Lord Anson, 3 Russ. 488, 493 ; Lenehan v. M^-
Cabe, 2 Ir. Eq. Rep. 342 ; Nixon v. Hamilton, 2 D. & Walsh, 364 ; Per-
kins V. Bradley, I Hare, 219 ; Majoribanks v. Hovenden, 6 Ir. Eq. Rep.
238 ; M'Mahon v. WElroy, 5 I. R. Eq. 1. This subject was fully con-
sidered by Sir J. Wigram, Y. C, in the important case of Fuller v.
Bennett, 2 Hare, 394. There, after the commencement of a treaty for
the sale of an estate by A., and the purchase of it by B., A. agreed to
give C. a mortgage on the estate as a securitj' for an antecedent debt,
and notice of the agreement was given to the solicitors of B. The
treaty for the sale afterwards *ceased to be prosecuted for rifr.*,-!
upwards of five years, during part of which time the suit of an
adverse claimant of the estate was pending. A. then died, and B. pur-
chased the estate at a low price, from the heir and devisee of A. B.
conveyed the estate in mortgage to D. The same solicitors were con-
cerned for B. from the commencement of the treaty with A. until the
final purchase of the estate, and for D. in the business of the mortgage.
It was held, under the circumstances of the case, that B. and D. had,
through their solicitors, constructive notice of the agreement with C,
and that the estate in their hands was subject to the lien of C. for the
amount agreed to be secured by the proposed mortgage. " The general
propositions," said his Honor, — '' first, that notice to the solicitor is no-
tice to the client ; secondly, that, where a purchaser employs the same
solicitor as the vendor, he is aflected with notice of whatever that soli-
citor had notice in his capacity of solicitor for either vendor or pur-
chaser in the transaction in which he is so employed ; and, thirdly, that
the notice to the solicitor, which alone will bind the client, must be no-
tice in that transaction in which the client employs him — have not as
general propositions, been disputed at the bar ; but with respect to tLe
last proposition, it was argued for the plaintiffs, that, where one out of
two matters transacted by the same solicitor follows so close upon the
other, that the earlief transaction cannot have been out of the mind of
the solicitor when engaged in the latter, there is no ground for restrict-
ing the notice to the client to the second transaction only, and that he
will be aifected with notice of both ; and for this, reference was made to
Winter v. Lord Anson (3 Russ. 488) ; Mountford v. Scott (T. k R. 274) ;

136

NOTICE.

and Hargreaves v. Rothwell (1 Kee. 154) ; to whieli I may add the case
of Brotherton v. Eatt (2 Vera. 5T4).

" According to the plaintiff's argument upon this part of the case,
carried to its full extent, the question is one of memory only on the part
of the solicitor, irrespective of the circumstance which has entered into
all the cases cited for the plaintiffs, that the same solicitor was em-
ployed Ly both parties, the vendor and the purchaser. According to
the defendant's argument, the knowledge which the solicitor has must
be acquired after and during the retainer, or it will not affect the client.
I am certainly not prepared to accede to either proposition to the full
extent. Cases may easily be suggested, in which it would be impossi-
ble that a solicitor should have forgotten a fact recently under his view,
with notice of which, however, it would be impossible to affect his client,
unless the circumstance of his being solicitor for two parties be intro-
r*fisn duced into *the case. And it is equally clear, where that circum-
stance forms part of the case, that a purchaser may be affected
with notice of what the solicitor knew, as solicitor for the vendor, al-
though, as solicitor for the vendor, he maj' have acquired his knowledge
before he was retained by the purchaser. Whatever the solicitor during
the time of his retainer, knows as solicitor for either party may possibly,
in some cases, affect both, without reference to the time when his know-
ledge was first acquired. If, therefore, in order to decide the cause now
before me, it were strictly necessary that I should decide, as an abstract
question, that a purchaser, who for the first time employs a solicitor
(not being also the solicitor of the vendor), can be affected with con-
structive notice of anything known to the solicitor, save that of which
the solicitor acquires notice after his retainer, and during his employ-
ment by the purchaser, I should certainly feel great difficulty in coming
to the conclusion. The rule, that notice to the solicitor will not bind
the client, unless it be in the same transaction, or at least during the
time of the solicitor's employment in that transaction, I have always
understood to be a rule positivi juris, adopted by courts of justice in
favour of innocent purchasers ; and the reason and policy of the rule
appear to me to show that such is the case. ' It is settled,' says Lord
Hardwicke, ' that notice to the agent or counsel, who was employed in
the thing by another person, or in another business, and at another time,
is no notice to his client who employs him afterwards. It would be^
very mischievous if it were so : for the man of most practice and great-
est eminence would then be the most dangerous to employ " (3 Atk.
392). The expression commonly used in explaining the rule, namely,
that the agent may have forgotten the former transaction, points at the
same conclusion ; and I cannot think that Lord Eldon, in the language
he used extra-judicially, in Mountford v. Scott, intended to shake the
general doctrine which himself, as well as Lord Hardwicke and other
judges, had so often insisted upon {Warrick v. Warrick, 3 Atk. 294;

LE NEVE V. LE NEVE. 137

Steed V. Whitaker, Barnard, Ch. Rep. 220 ; Riern v. Mill, 13 Ves. 120 ;
Mountford v. Scott, 3 Madd. 34 ; Kennedy v. Green, 3 My. & K. 699).
It is not necessary so to understand Lord Eldon's language, when con-
strued with reference to the circumstances of the case before him. The
rule, limited as above, is, I presume to say, best adapted to, and fully
sufficient for, the purposes of justice.

" It appears to me, however, that it may not be necessary that I
should give an opinion upon the abstract question. The cases of
*Brotherton v. Hatt, Winter v. Lord Anson, Mountford v. Scott, riff.q-i
and Hargreaves v. Bothwell, do not appear to me necessarily to
impeach the rule. The circumstances of those cases were, for the pres-
ent purpose, in substance the same. The mortgagors had at different
times, employed the same solicitor in effecting different incumbrances
upon the same estate ; and the incumbrancers with whom the contest
arose had employed the mortgagor's solicitor in the several transac-
tions in which they were respectively concerned. ' The Court held the
puisne incumbrancer affected with constructive notice of the prior in-
cumbrances ; for, having in that case employed the mortgagor's solici-
tor, he would necessarily be affected with notice of the prior transac-
tion, unless it should be held that the common solicitor (in his charac-
ter of solicitor to the mortgagor) was not to be considered as recollect-
ing the old transactions when engaged in new. If that were admitted,
— if the notice which the solicitor of the mortgagor had in the old
transaction were not continued in the new transaction, — I do not know
what should prevent the solicitor of the mortgagor from himself be-
coming an incumbrancer upon the estate, and insisting upon his incum-
brance against the mortgagees whose mortgages he had himself on
former occasions prepared. This was, in fact, unsuccessfully attempted
in the late case of Perkins v. Bradley (1 Hare, 219). In the absence
of special circumstances to affect the conclusion, and in the absence,
certainly, of any rule of law affecting the case, it might be right to hold
that the solicitor for the mortgagor had (like the mortgagor himself)
notice of the prior transaction, in that very transaction in which he was
employed by the mortgagee. It was one continuous dealing with the
same title. If, as solicitor for the mortgagor, he had such notice in the
new transaction, he had it in that new transaction as solicitor for both.
The reasoning is technical ; and in a case like that I am supposing, the
technicalitj' as well as the common sense of the case appears to me to
be in favour of the decisions I am now considering. But, however that
may be, the decisions must govern the present case, whether my at-
tempt to reconcile them with the positive rule I have referred to be
rio-ht or not." And see Wilde v. Gibson, 1 H. L. Ca. 605 ; Gerrard v.
(yReilly, 3 D. & War. 414.

In order to affect a person with constructive notice of facts within
the knowledge of his solicitor, it is necessary not only that the knowedge

i38 NOTICE.

ihould be derived from the same transaction, but it must be material to
;hat transaction, and which it was the duty of the agent to communicate.
-^^Q-, See * Wyllie v. Pollen, 32 L. J. Ch. (N. S.) T82, where it was held
b}-- Lord Westbury, C, that the transferee of a mortgage would
lot be affected by the knowledge of the solicitor acting for him in the
;ransfer of an incumbrance subsequent to the original mortgage, so as
;o prevent him from making further advances, such knowledge not being
naterial to the business of the transfer.

The circumstance of only one solicitor acting in a transaction does
lot necessarily constitute him the solicitor of both parties, so as to af-
ect one with notice of facts known to the others (Perry v. Soil, 2 De
Jr. F. & Jo. 33) ; and the employment of a solicitor to do a merely
ninisterial act, such as the procuring the execution of a deed, does not
institute him solicitor to the party executing the deed so as to affect
lira with constructive knowledge of matters within the knowledge of
;he solicitor: Wyllie v. Pollen, 32 L. J. Ch. (N. S.) 782.

Where a solicitor acting for both parties, has notice of a document,
md with the consent of one of such parties conceals his knowledge from
;he other party, the latter party will not be affected with constructive
lotice of such document ; Sharpe v. Foy, 4 L. R. Ch. App. 35.

Where a solicitor, employed both by the mortgagor and mortgagee,
(vas himself the author of a fraud. Lord Brougham, differing in this re-
spect from the opinion of Sir J. Leach, M. R., held, that although the
iolicitor had actual and full notice of his own fraud, the mortgagee
pras not cognisant in law, and, constructively, merely because his solici-
ior, himself the contriver, the actor, and gainer of the transaction, knew
t well; but his Lordship affirmed the judgment of the Master of the
Rolls on another ground, viz., that it was apparent on the face of the
Jeed that a fraud had been committed, which ought to have led to fur-
;her inquiries, and the mortgagee was, therefore, constructively affected
n the same manner as if he had employed another solicitor ; Kennedy
r. Green, 3 My. & K. 699. And see Jones v. Smith, 1 Ph. 256 ; Neesom
■f. Clarkson, 2 Hare, 163 ; Frail v. Fllis, 16 Beav. 350 ; Hiorns v. Hol-
om, 16 Beav. 259 ; Greenslade v. Dare, 20 Beav. 284, 291 ; Spencer v.
Topham, 2 Jur. N. S. 865; Robinson v. Briggs, 1 Sm. & Giff. 188;
Heivitt V. Loosemore, 9 Hare, 449, 455 ; Thompson v. Gartwright, 33
Beav. 1T8 ; 2 De G. Jo. & Sm. 10 ; Ogilvie v. Jeaffreson, 2 Giff. 353 ; In
'-e European Bank, 5 L. R. Ch. App. 358.

Where, however, the question of fraud wholly depends upon the fact
(whether the act which has been made known or not, the decision in Ken-
ledy V. Green has been held not to be applicable. To make it applicable,
-^i.,-| it must be made out that *distinct fraud was intended in the
very transaction, so as to make it necessary for the solicitor to
30nceal the facts from his client in order to defraud him. See Atterbury
V. Wallis, 8 De G. Mac. & G. 454 : there a solicitor took a mortgage of

LE NEVB V. LB NEVE. 139

an equity of redemption and sub-mortgaged it. Soon afterwards he and
the first mortgagee and the mortgagor joined in a new mortgage of part
of the property, he acting as the solicitor for all the parties to the trans-
action, and suppressing all mention of the sub-mortgage. It was held
by the Lords .Justices of the Court of Appeal, that the new mortgagee
was affected by the solicitor's knowledge of the sub-mortgage (his fraud
not excluding the effect of such notice), and took subject to it, except
to the extent of the money paid by him in satisfaction of the first mort-
gage. See also Rolland v. Hart^ 6 L. R. Ch. App. 678. But see Thomp-
son V. Cartwright, 33 Beav. 1T8 ; 2 De G. Jo. & Sm. 10.

And in a recent case it has been decided, that a client will be affected
with constructive notice of a trust, the existence of which is known to
his solicitor, even although the solicitor may have committed a fraud in
relation to that trust. Thus, in Boursot v. Savage, 2 L. R. Eq. 134,
Holmer, one of three trustees, executed an assignment of leasehold
property held jointly by them, to Savage, a purchaser, and forged the
signatures of his two co-trustees, and also the requisite assent of the
cestui que trust, to the sale. Holmer was a solicitor, and acted as such,
on behalf of the purchaser. It was held by Sir R. T. Kindersley, V. C,
that the purchaser had constructive notice of the trust through the
knowledge of his solicitor, and ordered a re-conveyance of the legal in-
terest in one-third of the property which passed to the purchaser. " Sup-
posing," said his Honor, " that actual knowledge of the existence of a
trust cannot be imputed to the defendant Savage, still I think he is af-^
fected by constructive notice. He employed Holmer as his solicitor in
the transaction of the purchase ; and according to the doctrine of equity,
a purchaser has constructive notice of that which his solicitor, in the
transaction of the purchase, knows, with respect to the existence of the
rights which other persons have in the property. Take the simplest
case : Suppose the purchaser's solicitor happens, by reason of his con-
nection with the property, to be aware that the vendor has created an
equitable mortgage. Is it possible to contend that th^purchaser would
not be held to be affected with constructive notice of the existence of
such mortgage ? It is a moot question upon what principle *this r^i-n-i
doctrine rests. It has been held by some that it rests on this : —
that the probability is so strong, that tl^e solicitor would tell his client
what he knows himself, that it amounts to an irresistible presumption
that he did tell him ; and so you must presume actual knowledge on the
part of the client. I confess my own impression is, that the principle
on which the doctrine rests is this : — that mj-^ solicitor is alter ego ; he
is myself, I stand in precisely the same position as he does in the trans-
action, and therefore his knowledge is my knowledge; and it would be
a monstrous injustice that I should have the advantage of what he
knows without the disadvantage. But whatever be the principle upon
which the doctrine rests, the doctrine itself is unquestionable.

40 NOTICE.

"It is insisted, however, tiiat because Holmer was committing a
raud, the client is not to be aflfected with constructive notice of a fraud
lommitted by his solicitor. But if the client would be affected with con-
itructive notice of a trust, the existence of which is known to his solici-
or, in the case where there is no fraud, the fact that the solicitor is
sommitting a fraud, in relation to that trust, cannot afford any reason
vhy the client should not be affected with constructive notice of the
ixistence of the trust. It is the existence of the trust, and not the
"raud, of which he is held to have constructive notice ; and the construc-
;ive notice of the existence of the trust must be imputed to him, whether
ihere is a fraud relating to it or not."

The mere fact of two companies having the same solicitor, or same
lirectors, in common, does not affect each company with notice of every-
;hing that is done by the other : In re Marseilles Extension Bailway
Company, 1 L. R. Ch. App. 161 ; and see In re European Bank, 5 L.
R. Ch. App. 368.

As to constructive notice in dealings with executors, administrators,
md trustees, see note to Elliott v. Merryman, ante, p. 64.

As to constructive notice by record.^— A public Act of Parliament is
)f itself full notice, but not a private Act (Earl of Pom/ret v. Lord
Windsor, 2 Ves. 480) ; nor, it seems, is a private Act made a public one
[Hesse v. Stevenson, 3 Bos. & Pull. 565, 5*78 ; Attorney-GeMcral v. Mar-
rett, 10 Ir. Eq. Rep. 167.)

Nor will an act (Wilkes v. Bodington, 2 Yern. 599; Gollett v. De
Ools, Ca. t. Talb. 65 ; Ex parte Knott, 11 Ves. 609 ; but see 1 S. & L.
152 ; Ex parte Herbert, 13 Ves. 183) or commission (Hitchcock v. Sedg-
wick, 2 Vern. 156, reversed Dom. Proc, House of Lords Journ., vol.
14, p. 601 ; 3 My. & K. 591 ; Sowerhy v. Brooks, 4 B. & Aid. 523 ; In
r^Ho-\ i"^- Barr^s Trusts, 4 K. & J. 219) of *bankruptcy of itself amount
to notice.

With regard to the protection given by recent Bankruptcy Acts to
parties dealing ^ith bankrupts, see 12 & 13 Vict. c. 106, s. 133
;;repealed by 32 and 33 Vict. c. 83), and 32 & 33 Vict. c. 11, ss. 94, 95.

Nor will a judgment be notice (Ghurchil v. Grove, 1 Ch. Ca. 35;
Freem. Ch. Ca. 176 ; Lane v. Jackson, 26 Beav. 535 ; 1 & 2 Vict. c. 110,
s. 13), unless a search have been made for judgments, in which case notice
may be presumed (Procter v. Cooper, 2 Drew. 1 ; 18 Jur. 444 ; 1 Jur.
N. S. 149) ; but it seems that a title depending on the fact of the ven-
dor having been a purchaser without notice of a registered judgment,
sannot be forced upon a purchaser (Freer v. Hesse, 4 De G. Mac. & G.
495 ; and see The Governors of the Grey Goat Hospital v. The West-
minster Improvement Commissioners, 1 De G. & Jo. 531; Knight v.
Pocock, 24 Beav. 436) ; and although, under the old law, a purchaser
would be bound by a judgment, even though not docketed, if he had
aotice of it (Davis v. Slrathmore, 16 Ves. 419), he will not under 3 &

LE NEVE V. LE NEVE. 141

4 Vict. c. 82, s. 2, even with notice, he affected by a judgment, unless
duly registered. And see 18 & 19 Vict. c. 15, s. 4, and Lee v. Green,
6 De G. Mac. & G. 155, 168.

By 3 & 4 Vict. c. 82, notice of an unregistered decree, as well as of
an unregistered judgment, will not, as against purchasers, mortgagees,
or creditors, give such decree or judgment any effect under 1 & 2 Vict.
c. 110.

And judgments and decrees not duly re-registered within five years
will be void as against subsequent purchasers, mortgagees, and credi-
tors, though they will not lose their priority over previous purchasers,
mortgagees, and creditors (2 & 3 Vict. c. 11, s. 4 ; Beaven v. The Earl
of Oxford, 6 De G. Mac. & G. 492 ; Hickson v. Collis, 1 J. & L. 94,
113; Sugd. V. & P. 426, 13th ed. ; sed vide Shaw v. Neale, 20 Beav.
157 ; S. C, 6 Ho. Lo. Ca. 581). And registration is equally necessary
as to judgments removed from the inferior courts (18 & 19 Vict. c. 15,
s. 1), and as to judgments in the counties palatine (lb. s. 3).

However, by 23 & 24 Vict. c. 38, no judgment, statute, or recogni-
sance is to affect anj^ land of whatever tenure as to a bona fide pur-
chaser for valuable consideration, or a mortgagee, although with
notice, unless a writ of execution thereof be registered and issued
within three calendar months from the time of the registering, and
before the execution of the conveyance or mortgage, and payment of
the purchase or mortgage money (sect. 1). And by 2T & 28 Vict. c.
112, it is enacted that no judgment, statute, or recognisance to be
entered up after the passing *of that act (29th July, 1864) shall
affect any land (of whatever tenure) until such land shall have L ^
been actually delivered in execution by virtue of a writ of elegit or
other lawful authority, in pursuance of such judgment, statute, or
recognisance (sect. 1). Writs of execution, or other process of execu-
tion of any such judgment, statute, or recognisance must be registered
in manner prescribed by 23 & 24 \ ict. c. 38 (sect. 3) ; and the creditor
to whom land is delivered in execution is entitled to obtain a-summary
order from the Court of Chancery for sale (sect. 4) ; other creditors
on judgment, statute, or recognisance, having a charge on the land,
must be served with notice of the sale, and the persons entitled to the
proceeds of the sale are to be paid according to their priorities (sect.
5) ; and every person claiming any interest in the land through or
under the debtor, bj' any means subsequent to the delivery of such
land in execution as aforesaid, will be bound by the order for sale, and
by all proceedings consequent thereon (sect. 6).

As to the re-registration of Crown debts, see 22 & 23 Vict. c. 35, s.
22 ; and 34 & 35 Vict. c. 12, (An Act for the further protection of
purchasers against Crown debts, Ireland), partially repealing T & 8
Vict. c. 90 (Ireland).

And for further information on the subject, see Prideauxon Judg-

L42 NOTICE.

ments and Crown debts, 6th ed.; 1 Prideaux's Precedents on Convey-
mcing, 4th ed., p. 130.

As to the effect of judgments registered under the provisions of the
[rish Acts, 3 & 4 Yict. c. 105, and 13 and 14 Vict. c. 29, see Eyre v.
M'Dowell, 9 Ho. Lo. Ca. 619, and the cases there cited. See also 11
& 12 Vict. c. 120 ; 34 & 35 Vict. c. 72.

Although a decree after the determination of the suit is not con-
structive notice to persons not parties to it ( Worsley v. Uarl of Scar-
borough, 3 Atk. 892), in the case of a lis pendens, if there has been a
3lose and uninterrupted prosecution of the suit, a purchaser pendente
lite, for valuable consideration even -without notice, was, prior to 2
Vict. c. 11, bound by the decree, although the lis pendens had not been
registered (Preston v. Tuhhin, 1 Vern. 286 ; Culpepper y. Aston, 2 Ch.
Ca. 115, 221 ; Sorrell v. Carpenter, 2 P. Wms. 482 ; Walker v. Small-
wood,Amh. 6Y6 ; Garth v. Ward, 2 Atk. 1T5) ; and also by interlocutory
decree, or a decree to account ( Worsley v. Earl of Scarborough, 3 Atk.
392 ; Higgins v. Shaw, 2 D. & War. 356) ; but some specific claim must
bave been made in the suit to the particular subject sought to be
affected by lis pendens (Reed v. Freer, 13 L. J. (Chauc.) 417 ; Holt v.
Bewell, 4 Hare, 446 ; and see and consider Shallcross v. Dixon, 7 L.
J. N. S. (Ch.) 180 ; * Jennings v. Bond, 2 J. & L. 720 ; Tenison
t*"^^^ V. Sweeny, IJ. & L. 710 ; 7 Jr. Eq. Rep. 511). By 2 & 3 Vict.
c. 11, s. 7, lis pendens will not affect a purchaser without express
notice, unless properly registered.

Pending litigation not onlj^ cannot the defendant affect the rights of
the plaintiff to the property in dispute, but the same principle is appli-
3able against a plaintiff, so as to prevent him from alienating to the
prejudice of the defendant, where, from the nature of the suit, he may
have in the result a right against the plaintiff, as on a bill by a devisee
to establish a will against an heir, if in the result the devise is declared
void, the heir is not to be prejudiced by the alienation of the devisee
[plaintiff) pendente lite : Bellamy v. Sabine, 1 De G. & Jo. 580 ; and
see Garth v. Ward, 2 Atk. 174.

The question has been raised how far a purchaser from a defendant
pendente lite is affected by the right of another defendant in the same
3uit. It seems where a person without notice of a suit, purchases from
one of the defendants propertjr which is the subject of it, he is not, in
3onsequence of the pendency of the suit, affected by an equitable title
af another defendant which appears on the face of the proceedings, but
of which he has no notice, and to which it is not necessary for any of
the purposes of the suit to give effect ; Bellamy v. Sabine, 1 De G. &
Jo. 566.

Where however the suit is such that an adjudication will take place
between defendants with regard to the subject-matter of the suit, an
ilienee from one of the defendants will be affected by the lis pendens if

LE NEVE V. LE NEVE. 143

duly registered. Thus, in Tyler y. T/iomas, (25 Beav. 41), it appeared
a suit had been instituted by creditors for the administration of the
testator's estate, and that the deficiency of the personal estate for pay-
ment of the debts was payable out of two real estates devised separately
to the defendants A. and B. In 1846 the debts were ordered to be paid
out of A.'s estate alone, without prejudice to his right of contribution
against B.'s estate. In 1852 the suit was registered as a lis pendens,
dnd two months afterwards B. mortgaged his estate to C, who had no
notice of A.'s rights. It was held by Sir John Romilly, M. R., that
there was a lis pendens as regarded A.'s rights, and that C.'s mortgage
must be postponed to A.'s claims. His Honor said, " He did not think
the Court, in Bellamy v. Sabine, meant to laj'^ down, as a principle,
that where a distinct decree is made in favour of one defendant against
another defendant the doctrine of lis pendens does not apply. He said
that the point was very important, for there were many cases in which
the plaintiff had no interest *at all, as in cases of interpleader, rif^i^n-i
and suits instituted by executors or trustees, to have the rights
of all parties determined ; that if, in the course of proceedings in a suit,
a decree was made for a conveyance from one defendant to another, to
be settled in chambers, which was not verj' unusual, it would be very
extraordinary if, after the suit has been registered as a lis pendens, the
person ordered to convey might sell it to a third person, who might set
up for a defence that he was a purchaser for valuable consideration
without notice. If creditors, who are plaintiffs, were ordered to be paid
their debts out of two estates, could a defendant, the owner of one of
them, after the suit had been registered, sell his estate, which was liable
to contribute ? " This," his Honor said, " appeared to him to be a start-
ling proposition, and unless. he could understand that the contrary had
been laid down by the Court of Appeal, he should hold that a purcha-
ser having notice of the suit, not actual, but constructive, by its being
registered as a lis pendens, must be taken to have notice that the Coun;
had made a decree that one defendant had a right to stand in the shoes
of the other."

It should always be borne in mind in considering this subject, that the
doctrine as to the effect of lis pendens on the title of an alienee is founded
not on any principles of Courts of equity with regard to notice, but on
the ground that it is necessary to the administration of justice that the
decision of the Court in a suit sliould be binding not only on the litigant
parties, but on those who derive title from them pendente lite, whether
with notice of the suit or not. If this were not so, there could be no
certainty that the litigation would ever come to an end. A mortgage
or sale made before a final decree to a person who had no notice of the
pending proceedings would always render a new suit necessary, and so
interminable litigation might be the consequence ; Bellamy v. Sabine, 1
De G. & Jo. 518.

44 NOTICE.

:*"]

The filing of a special case, and the entering of appearances thereto
y persons named as defendants, is to be taken as a lis pendens, and in
rder to be binding on purchasers or mortgagees without notice, must
e registered under 2 & 3 Vict. c. 11. See 13 & 14 Vict. c. 35, s. 17.

The Court has power now, under 30 & 31 Vict. c. 47, to order the
acating of the registration of lis pendens.

As to the liability of a solicitor for neglecting to I'egister a lis pew
'ens, see Plant v. Fearman, 41 L. J. Q. B. (N. S.) 200; 20 W. R.
Q. B.) 314.

Although the contrary has been held (Pearce v. Newlyn, 3 Madd.
89), it appears to be now settled that court rolls of a manor do not
give constructive notice of their *content8; Bugden v. Bignold,
2 Y. & C. C. C. 377.

The registration of deeds, as before observed, will not of itself be
lotice so as to affect a purchaser taking the legal estate ; Bushell v.
Sushell, 1 S. & L. 103 ; Ford v. White, 16 Beav. 120 ; but if a purcha-
er search the register he will be presumed to have notice unless the
)resumption be rebutted by his showing that the search was made for a
)eriod only in which the registered deeds are not included ; Hodgson
'. Dean, 2 S. & S. 221 ; and see Lane v. Jackson, 20 Beav. 535.

As to the time of notice being had.'] — Notice before actual payment
)f the purchase-money, even although it may have been secured and a
;onveyance actually executed, will be binding in the same manner as
lotice had before the contract ; for, although the purchaser has I'lO
•emedjr at law against the payment of the money for which he gave his
lecurity, yet he would be entitled to relief in equity, on bringing his bill
md showing that though he has given a security for his purchase-money,
fe,% he had since had notice of an incumbrance ; under which circum-
itances the Court would stop payment of the money due on the secur-
ty ; Tourville v. Naish, 3 P. Wms. 307 ; Story v. Lord Windsor, 2
^Ltk. 630 ; More v. Mayhow, 1 Ch. Ca. 34 ; Jones v. Stanley, .2 Eq. Ca.
A-b. 685, pi. 9 ; so, where notice is had before the execution of the con-
i'eyance, or its due acknowledgment by a married woman {Sharps v.
Fox, 4 L. R. Ch. App. 35, 37), it is equally binding, although the pur-
3hase-money may have been paid before notice ; Wigg v. Wigg, 1 Atk.
582, 384 ; and see Rayne v. Baker, 1 Giff. 241 ; Illdesley v. Lodge, 3
3m. & G. 543.

As to what is sufficient proof of notice, see Sugd. V. & P. 784, 14th
3dit.

In legal parlance notice is in- either actual or constructive. It

formation given by one duly an- is actual when the purchaser is

thorized, or derived from some aware of the adverse claim or title,

authentic source. Notice may be or has such information as would

LE NEVE V. LE NEVE.

145

lead to knowledge ; The Mayor v.
Williams, 6 Maryland, 235 ; Tufts
V. King, 6 Harris, IS'I ; Rogers v.
Jones, 8 New Hampshire, 264 ;
Williamson v. Brown, 15 New
York, 354. Constructive notice
is a legal inference of notice of so
high a nature as to be conclusive
unless disproved, and is in most
cases insusceptible of explanation
or rebuttal 'bj evidence that the
purchaser had no actual notice and
believed the vendor's title to be
good ; Plumh v. Fluitt, 2 Anstru-
ther, 432 ; Griffith v. Griffith, 1
Hoffman, 153. Proof that a deed
from the vendor to a third person
was in the hands of the purchaser
prior to the sale, would authorize
an inference that he knew what it
contained, and thus raise a pre-
sumption of actual notice, which
might be rebutted by showing that
the instrument was in a foreign
language, or that the purchaser
was unable to read, or by any
other evidence that he was ignor-
ant of the nature of the instrument,
and not in default for not consult-
ing some one who was better
informed ; Farnsworth v. Ghilds,
4 Mass. 63T, 640. But where a
deed is an essential link in the
chain of the title, the law takes it
for granted that the purchaser had
notice of its contents, and will
not suffer the presumption to be
overthrown by the clearest evi-
dence that he never saw the in-
strument or heard of its existence.
In like manner there is a presump-
tion that one knows what a con-
veyance or release which he exe-
cutes, sets forth, and the contents
of any instrument to which it
VOL. II. — 10

refers ; The Howard Ins. Go.
V. Halsey, 4 Sandford, 564 ; 4
Selden, 271 ; which if capable of
being rebutted, can only be so on
the ground that the deed was ob-
tained from him by fraud. So
notice to an agent in the course of
the transaction, is constructive
notice to the principal, and it will
not avail the latter to show that
the agent fraudulently or negli-
gently omitted to communicate
what he was told. See Williamson
V. Brown, 15 New York, 359. It
follows that constructive notice is
not necessarily evidence of knowl-
edge, or to sustain a charge of
actual fraud ; Weilder v. The
Farmers' Bank, 11 Serg. & Rawle,
134. Gibson, J., said, " Construc-
tive notice is not prima facie
evidence of actual knowledge of
the fact ; the presumption of notice,
if it arises at all, being conclusive
even against the truth of fact; and,
therefore, constructive notice is
insufficient to fix on a party actual
knowledge as the ground work of
express fraud, which, and not fraud
by implication of law, is the foun-
dation of this action."

In like manner, a vendee will
not be charged with knowledge of
a defect in the vendor's title, on
evidence which would affect him
with constructive notice in a con-
troversy with a third person, whose
right was prejudiced bj^ the sale ;
Gham,plin v. Laytin, 6 Paige, 189,
203. '1 he chancellor said " that for
certain purposes, and where the
equitable rights of third persons
are concerned, it has been found
necessary by this court to hold a
purchaser to be chargeable with

146

NOTICE.

constructive notice of all the facts
communicated to his attorney or
agent for the purchase, or in the
examination of the title ; and that
notice of the existence of a deed
was good constructive notice of
the contents of the deed itself,
especially if it was one of the
deeds under which the purchaser
3erived his title to the premises.
But this equitable rule as to con-
structive notices has no reference
to controversies between the ven-
dor and vendee in relation to their
own rights," ante, 128.

A statement by an adverse
claimant that he has a right or
equity which he proposes to assert,
manifestly operates as notice, if
sufficiently clear and full, to put
the purchaser on his guard ; Nelson
V. Sims, 1 Cushman, 383 ; Barnes
V. M' Clintock, 3 Penna. 61 ; Bart-
lett V. Glasscock, 4 Missouri, 62,
66 ; Blakely v. Osborn, 33 Conn.
226. Such a notice need not give
particulars, although they should
be ready if required ; Epley v.
Witherow, 7 Watts, 161. In JEpley
V. Witherow, Kennedy, J., said :
" This court, ruled in the case of
Barnes v. Mylington, 3 Penna.
R. 67, that actual notice given
by the party, or his agent, of
his claim generally to t)ie land at
the time of sale, without specifying
the nature of his title, or in what
way he claimed it, or an interest
in it, was sufficient to put the pur-
chaser upon inquiry, and to have
enabled him, if he desired it, to
have ascertained the nature of the
claim, and how it was derived from
the party making it, who would
have been bound to have answered

fully at his peril." It has, never-
theless, been made a question
whether a general claim is suffi-
cient to affect a purchaser with
notice ; Tolland v. Stainbridge, 3
Vesey, 486. See Jaques v. Weeks,
7 Watts, 274, 282. A purchaser
will also be affected with notice
who has just cause to believe from
what he hears from the vendor,
that he is not the equitable owner
of the premises, or that they are
subject to an unrecorded trust or
encumbrance ; Durham v. Dey, 2
Johnson's Ch. ; 15 Johnson, 555 ;
Russell V. Fatrie, 10 B. Monroe,
184, 186; Price v. M'Donald, 1
Maryland, 403 ; Hudson v. Warner,
2 Harris & Gill, 413 ; and the same
effect may ensue from an authentic
statement by a third person, who
speaks from his own knowledge ;
Benton v. Burgott, 10 Johnson,
457, 459 ; Jackson v. Caldwell, I
Cowden, 622 ; Pearson v. Daniel,
2 Dev. & Bat. Eq. 366 ; Doyle v.
Teas, 4 Scammon, 202, 265.

It has, nevertheless, been held,
that notice must come from a party
in interest, and will be inoperative
when given by a stran^ger to the
right involved ; Rogers v. Eask-
ings, 14 Georgia, 166 ; Lament v.
Slinson, 5 Wisconsin, 443 ; Miller
V. Gresson, 5 W. & S. 284 ; Woods
V. Farmere, 7 Watts, 382, 387 ;
Churcher v. Guernsey, 3 Wright,
86. "To constitute a binding
notice, it must proceed from a
person interested in the property,
and in the course of a treaty for
itspurchase." Sugden on Vendors,
755, c. 24, sect, i, ante ; see Van
Dusen v. Vreeland, 1 Beasley,
142, 155 ; and this is no doubt

LE NEVE V. LE NEVE.

147

true of notice in the technical
sense as distinguished from knowl-
edge, or such information as is
substantially equivalent to knowl-
edge. Notice, said Duncan, J., in
Peebles v. Beading, 8 S. & R. 496,
should be actual, circumstantial,
in the transaction, and by the
party in interest; and it is gene-
rally conceded that notice cannot
be established by showing that it
was generally believed in the neigh-
borhood that the vendor had sold
or encumbered the premises, and
that the report was communicated
to the defendant ; Jacques v.
Weeks, 1 Watts, 26Y ; Epley v.
Witheroiv, Id. 167 ; Sood v.
Fahnestock, 1 Barr, 4T0 ; Wilson
V. M' Cullough, 11 Harris.

There is no doubt that a pur-
chaser may disregard a hearsay
statement by one who is not ac-
quainted with the facts. For as
there are no means for ■\'erifying
the truth of such an allegation, it
may be treated as if it were false ;
Doyle V. Teas, 4 Scammon, 202,
250; Butler V. Steevens, "2,6 Medne,
484; The City Council v. Page,
1 Spear Eq. 159; Wilson y. M' Cul-
lough, 11 Harris, 440. The case
is obviously different where a pur-
chaser receives full and authentic
information from a person who
speaks from his own knowledge,
and it may then be as much his
duty to refrain from buying as if
he had been notified by the party
whose interest will be affected by
the sale. Knowledge by whatever
means acquired is equivalent to
notice, and a purchaser who is
definitely informed that the sale is
an actual or constructive fraud,

cannot claim the protection due to
good faith, whether the communica-
tion comes from the complainant,
or from a stranger to the right in-
volved; Mullikin v. Graham, 22
P. F. Smith, 484 ; Bupert v. Mack,
15 Illinois, 542 ; Cox v. Milner,
23 Id. 473. "If" said, Putnam, J.,
in Curtis v. Munday, 3 Metcalf,
407, " the information were given
by those persons who know the
party and much of his transactions,
and who spake not vaguely, especi-
ally if the partj' himself who was
to be affected by the notice, was so
well satisfied of its truth as again
and again to state or acknowledge
the fact, it must be sufficient. No
honest man, after such notice, could
undertake, or if he did should be
permitted to acquire title to the
land which from information given
on certain knowledge he believed
had been conveyed." It was held
in like manner in Mullikin v.
Graham, 22 P. F. Smith, 484, 4,90,
that it is not indispensable to the
validity of notice of an equitable
interest, that it should come from
the party or his agent. It is suffi-
cient, though derived aliunde, pro-
vided it be of a character to gain
credit.

The question is, nevertheless,
one of circumstances. In consider-
ing whether the defendant bought
in good faith, it should be remem-
bered that one who intervenes
officiously in a matter which does
not concern him, will naturally be
regarded with distrust. A pur-
chaser should not, therefore, be
charged with notice for not at-
tending to the statements of a
stranger to the title, who gives un-

148

NOTICE.

asked ad vice, unless the informant's
character was above suspicion, and
he spoke from knowledge. See
Wilcoa: v. Hill.

Whatever the rule may be under
other circumstances, it is clear that
a friend or relative may come for-
ward on behalf of one who cannot
act for himself, in consequence of
disease, absence, or non-age ; and
a notice given under such circum-
stances, will be as effectual as if
it came from the party ; Ripple
V. Ripple, 1 Rawle, 390 ; Butcher
V. Yocum, 11 P. F. Smith, 168;
Millikin v. Graham, 22 Id. 484.
In Butcher v. Yocum, notice by a
grandfather that his grandchildren
were equitably entitled to the land,
was held sufficient to put a pur-
chaser from the mother on his
guard, and this case must he re-
garded as overruling the dicta of
Chief Justice Gibson, in Woods v.
Farmere, 1 Watts, 382, SST, " That
neither consanguinity nor commu-
nity of interest gives a right to in-
terfere," and that one brother can-
not give a valid notice for another,
of an equity in which both are in-
terested. See Millikin v. Graham.
Yet in Jolland v. Stainbridge, 3
Vesey, 418, a request from a
mother, " not to buy the estate, for
that it belonged to her daughter,
and the person who was about to
dispose of it had no right to sell,"
was held not to be notice of an un-
registered will ; and Lord Lough-
borough said " she should have
registered the will ; then the pur-
chaser would have had notice not
only of the claim, but of what
sort of claim it was. I very
much doubt whether that general

claim is sufficient to affect a pur-
chaser with notice of a deed of which
he appears to have had no knowl-
edge."

Where notice is requisite to per-
fect a right or put the person to
whom it is given in default, knowl-
edge is not equivalent to notice.
This rule does not apply where
the question is one of good faith.
One who knows that the vendor is
fraudulently disposing of that
which is not equitably his own,
cannot claim to be a boria fide pur-
chaser ; Leinman^s Estate, 82
Maryland, 125 ; Blatchley v. Os-
horn, 33 Conn. 226. If it appears
from the defendant's admissions,
or by any other means of proof,
that he had such knowledge, it is
superfluous to prove notice ; or to
speak more accurately, notice is a
legal inference ; M ^Kinney v.
Brightly, 4 Harris, 399 : Phillips
V. The Bank, 6 Id. 394, 404;
Curtis V. Mundy, 3 Metcalf, 405,
40*7 ; Stevens v. Goodenough, 26
Vermont, 6Y6 ; Henry v. Bainman,
1 Casey, 354; Meux v. Bell, 1
Hare, Y3; Tillinghasty. Ghamplin,
4 Rhode Island, 113,212; Hanker-
son V. Barbour, 29 Illinois, 80 ;
Mullekin v. Graham, 22 P. F.
Smith, 484 ; Vanduyne v. Vree-
land, 1 Beasly, 142, 155; Curtis
V. Mundy, 3 Metcalf, 405; Cur-
rens v. Hurt, Hardin, 31 ; Rowan
V. Adams, 1 S. & M. Ch. 45;
Roberts v. Stanton, 2 Munford,
129; Lewis v. Bradford, 10
Watts, 61 ; Phillips v. The Bank
of Lewistown, 6 Harris, 394 ;
Trefts v. King, lb. 151.

Accordingly, where the pur-
chaser was told by a third person

LE NEVE V. LE NEVE.

149

that he believed that the vendor
had conveyed the premises to the
complainant, and on being asked
subsequently how he ascertained
that the deed had not been re-
corded, replied that he had found
it out, but would not say by what
means ; it was held that he had not
acquired a valid title under the re-
vised statutes of Massachusetts,
which provide that no unrecorded
deed shall be valid, save as against
the grantors, and persons having
actual notice ; Curtis v. Mundy.
So the clerk of a court cannot al-
lege that he is a purchaser with-
out notice of an equitable right,
which was known to him through
his acquaintance with the record.
Dickson^. Campbell, 32 Missouri,
544.

In Maryland and Missouri knowl-
edge of a prior deed will supply
the want of registration ; Lein-
man's Estate, 32 Maryland, 325 ;
Maupron v. Emmons, 47 Missouri,
304 ; and the same rule prevails in
Massachusetts, although the stat-
utes of that State require actual
notice ; White v. Foster, 102 Mas-
sachusetts, 3T5 ; George v. Kent,
1 Allen, 16. And where knowledge
is shown either by direct proof or
as a necessary inference, it will
not avail the purchaser to deny
notice, or allege that having
searched the record without dis-
covering any such incumbrance,
he believed that it did not exist,
and that he might buy with safety ;
Blatchley v. Osborn, 33 Conn. 226.

An inference of knowledge, and
consequently of notice, may con-
sequently be drawn from the
presence of the party at a

conversation, in the course of
which the existence of an incum-
brance on the title is stated as an
undoubted fact; Westervelt v.
Hoff, 2 Sandford, Ch. 98; or from
his having witnessed a deed under
circumstances which leave no doubt
that he was acquainted with its
contents, though not from the
mere circumstance of attestation.
See Curtis v. Mundy ; Boling v.
Ewing, 9 Dana, 76 ; Mocatta v-
Murgatroyd, 1 Peere Wms. 393 ;
Hill on Trustees, 512 ; Sugden on
Vendors, 296.

So notice, may be inferred from
facts and circumstances in the ab-
sence of direct proof; and close
friendship or relationship may be
taken into view in determining
whether the purchaser knew that
which is not shown to have been
communicated to him ; Tillinghast
V. Champlin,4: Rhode Island, 173,
204; PhillipsY. The Bank of Lew-
istown, 6 Harris, 394, 404; Hoxie
V. Carr, 1 Sumner, 173, 192;
Trefts V. King, 6 Harris, 157, 160.

In Tillinghast v. Champlin, the
question was whether the defend-
ant had notice that land which
had been conveyed to Benjamin
Gardner and William Gardner, as
tenants in common, was partner-
ship propertj;-, and that the assets
of the firm were insufficient to pay
their debts. Such knowledge was
denied in the answer, but held to
be a reasonable and natural pre-
sumption of fact on the evidence.
" For us to doubt," said Ames, C.
J., " that the respondent, Champlin,
knew these facts, which appear
from the proofs to have been
notorious in the village of East

150

NOTICE,

Greenwich, and where the partners
themselves, by their daily acts and
repeated declarations, took pains
for the sake of obtaining credit for
their firm to make them so, would
suppose on our part a degree of
skepticism quite unfitting us for
an office which requires us in mat-
ters of proof to weigh and decide
upon probabilities. Although dur-
ing a portion of the time, at least,
of the continuance of this copart-
nership, the respondent owned and
occupied a farm a few miles off
in West Greenwich, yet the occa-
sions of his business and pleasure,
as proved, brought him frequently
to the village of East Greenwich,
where the firm did business, and
where the works in question were
situated ; and, where also, the re-
spondent's mother and family re-
sided. His personal and business
relations with both the members
of this firm were intimate. His
sister was the wife of William A.
Gardner, and Benjamia W. Gard-
ner boarded with his mother, and
was thought to be attentive to an
unmarried sister, and he was fre-
quently with both the copartners,
and was advised with about their
business. He bid off for William
A. Gardner, at auction, the very
lot upon which these works were
situated, when sold by the town of
East Greenwich, and must have
known the openly declared pur-
pose for which it was bought.
From the proof, no one could have
been more cognizant of the credit
and capital upon which the firm
did business, and out of which
they built up the property in ques-
tion. This intimacy continued

with Benjamin W. Gardner after
the decease of William A., his
brother. Robert H. Champlin was
the original administrator, ap-
pointed on the estate of William
A. Gardner, and he himself took
apparently a great interest in the
affairs of the estate, frequently at-
tending the courts of probate when
questions concerning it were agi-
tated, and seeming to be a promi-
nent actor in its affairs. He knew,
or affected to know, the precise
condition of the estate of his de-
ceased brother-in-law, and in-
formed the witness, David W.
Hunt, a creditor of the firm to the
amount of $400 only, some six
weeks after the death of William
A. Gardner, that he would get his
whole debt ; that the debts of the
estate were about $3,000, and that
there would be property to pay them
all; though he declined the offer
of the witness to guarantee the
payment of his debt for a commis-
sion of five per cent. In his
answer, he admits that both at the
decease of William A. Gardner,
and at the time of the taking of
his deed, he knew that the firm
owed debts, though not the amount ;
and although he denies that he
knew that the firm was insolvent,
j^et, it is evident from the fact, and
his means of knowledge concerning
it, that he must have known that
it was grossly so, and that nothing
was done by the surviving partner,
who still continued to use the prop-
erty of the firm to pay any of its
debts." It would, nevertheless, be
erroneous to infer notice from in-
timacy or nearness of blood, with-
out other circumstances, especially

LB NEVE V. LB NEVE.

151

in opposition to a denial of notice
in the answer ; Flagg v. Mann, 2
Sumner, 486.

Gross inadequacy of price may
operate as notice, by putting the
purchaser on inquiry as to the
cause or motive for the sacrifice ;
or it may raise to an inference that
both parties colluded to place the
property beyond the reach of credi-
tors or of the equitable owner ; Hop-
pin V. Doty, 25 Wisconsin, 5T3 ;
Peabody v. Fenton, 3 Barb. Ch. 451.

It was held in Kerns v. Swope,
2 Watts, Y5, that where one
buys land lying in two coun-
ties, there is a presumption of fact
that he examined the registry in
both, and is consequently affected
■with actual notice of a prior
deed, which being only recorded
in one of them, does not operate
as constructive notice, as it re-
gards that portion of the land
which is situated in the other
county ; but that no such infer-
ence can be drawn from evidence,
that a purchaser inspected a regis-
tered copy of a deed which was
not duly acknowledged under the
recording acts, because such a
copy lacks the authentication pre-
scribed by law, and has no moire
weight than if it were made by a
private individual. '

" It has been argued," said Gib-
eon, C. J., who delivered the
opinion of the court, " that a pre-
sumption may arise of actual in-
spection of tlie defective registry,
which is said to amount to actual
notice of the contents of the
original paper. The ground of
the supposed presumption is the
fact that the plaintiff purchased,

along with the tracts in dispute,
certain other tracts included in the
conveyance to the bank, which are
situate in Huntingdon countj^
where the conveyance, and what
purports to be the memorandum
containing a recital of the mate-
rial facts, were registered together ;
and as the original was lost, it is
supposed to be a reasonable pre-
sumption that the plaintiff pur-
chased on the faith of the registry
in that county, and actually in-
spected it. Nothing is more rea-
sonable. But not to insist on the
obvious answer to this, that the
jury were not left to draw the con-
clusion of fact, we will consider
the case as if the registrj' had been
actually examined. That it was
defective, is not open to a doubt.
The memorandum of the recital,
thought to be material, purports,
according to the registry, to have
been endorsed on the conveyance,
but underneath the certificate of
the acknowledgment, which con-
tains neither reference nor allu-
sion to it ; and the original was
therefore destitute of the evidence
of authentication required by the
law to entitle it to be registered.
The registration, therefore, being
without the authority of the law,
was the unofficial act of the officer,
which could give the copy no
greater validity than the original
deprived of legal evidence of ex-
ecution ; nor even so much, for an
original deed exhibited to a pur-
chaser would affect him though it
were unaccompanied with the evi-
dence of its execution. But here
the registry was no better than a
copy made by a private person in

152

NOTICE.

a memorandum book ; from which
a purchaser would be unable to
determine whether there were, in
fact, an indorsement on the deed,
or whether it had been truly-
copied — especially when neither
the copy, nor an exemplification
of it, would be legal evidence of
the fact in a court of justice. Un-
questionably a purchaser would
not be affected by having seen the
copy of a conveyance among the
papers of another, or an abstract
of it in a private book. The whole
eifect of a registry, whether as
evidence of the original, or as
raising a legal presumption that
the copy thus made equivalent to
the original, has been actually in-
spected by the party to be affected,
is derived from the positive pro-
visions of the law; and when un-
sustained by these, a registry
can have no operation whatever.
Stripped of artificial effect, it is
but the written declaration of the
person who was the officer at the
time, that he had seen a paper in
the words of the copy which pur-
ported to be an original. But to
say nothing in this place of the
incompetency of such a declara-
tion as evidence of the fact, on
what principle would a purchaser
be bound to attend to the hearsay
information of one who is not
qualified to give it ? Since the de-
cision in Gornwallis's Case, Toth.
254, and Wildgoose v. Wayland,
Gouldsb. 147, pi. 67, it has been
considered a settled principle, that
the vague reports of strangers, or
information given by a person not
interested in the propertj', are in-
sufficient. It has been held even

that a general claim may be disre-
garded. There certainly are cases
which seem to cast a doubt on the
principle. But as is properly re-
marked by Mr. Sugden in his
Treatise on Vendors, the point of
notice to which the remark of
Chief Baron Hale was directed, in
Fry V. Porter, 1 Mod. 300, did
not relate to a purchaser. In
Butcher v. Stapely, 2 Vern. 364,
the purcliaser was affected with
notice, of which, it is said, there
was no other direct evidence than
what might have been gleaned
from the conversation of some
neighbors, who said they had
heard that the vendor had sold
the estate to the plaintiff. It is
obvious that to decree on parol
evidence of loose conversations in
the presence of the party, which
may not have been heard or under-
stood by him, would be attended
with extreme danger of injustice ;
and notwithstanding this decision,
the rule seems to be established as
I have stated it, having been recog-
nized by this court in Peebles v.
Reading, 8 Serg. & Rawle, 480,
and Ripple v. Ripple, 1 Rawle,
386."

There can be no doubt as to the
point determined in this instance.
If the jury could have inferred
that the purchaser consulted the
registry in the absence of proof, the
question should at all events have
been left them as one of fact. But
the court would seem to have gone
too far in saying that if such evi-
dence had been adduced, it would
not have sustained an inference of
notice. In Hastings v. Cutler, 4
Foster, 481, it was held, that one

liE NEVE V- LE NEVE,

153

who sees and examines what pur-
ports to be a registered copy of a
conveyance of the land he is about
to buy, is put on inquiry, although
the original is defectively acknowl-
edged, and will be affected with
notice if he does not ascertain the
truth.

From whatever source notice
may come, it must be sufficiently
clear and full to put the purchaser
on his guard, and enable him to
ascertain the truth. This applies
not only to actual notice, but to
the constructive notice arising
from a recital in a deed, or the
pendency of a bill in equity. If a
purchaser could be affected by a
loose report or allegation resting
on no sure foundation, and incapa-
ble of being traced to any definite
source, the best title might be im-
paired by rumors which their very
falsity would render it impossible
to disprove. Notice must conse-
quently be certain within the rule,
id cerium est, quod certum reddi
potest ; and the criterion seems
to be, — were the facts disclosed
or known, such as render it in-
cumbent on the purchaser to in-
quire, and to enable him to prose-
cute the inquiry to a successful ter-
mination ? Massey v. Grenhow, 2
Patton & Heath, 255, 256 ; Parker
v. Kane, 4 Wisconsin, 1 ; Kerns
v. Swope, 2 Watts, 78 ; Jacks v.
Weeks, 1 Id. 266; Kpley v. Withe-
row, lb. 163, 161 ; Bellas v. Mc-
Carthy, 1 0 Watts ; Spa ford v.
Weston, 29 Maine, 140. A vague
allegation that the vendor's title is
subject to a latent equity without
saying what ; Lament v. Stimpson,
5 Wis. 443 ; Wadsworth v. Paige,

15 Ohio, N. S. 70 ; or that the
premises in question have been
conveyed to a third person, whose
name is not given, will not bind
the conscience of the purchaser,
because it does not indicate where
he is to look for information, and
merely raises a doubt which he has
no means of satisfying. This is
equally < true, whether the notice
comes from the complainant or
from a third person. One who
seeks to arrest a sale by an allega-
tion that he has obtained a deed,
or that the equitable estate is in
him, should consequently be pre-
pared to give such definite infor-
mation as will enable the pur-
chaser to test what he says, and if
he declines, or is unable to do so
when requested, and the purchaser
has no means of ascertaining the
truth, he cannot justly be charged
with bad faith in accepting the title ;
Massie v. Greenhow, 2 Patton &
Heath, 255.

It should, nevertheless, be re-
membered, that where a purchase
is set up against a right which would
otherwise be valid, the question is
essentially one of good faith, and
whatever affects the buyer's con-
science will operate as notice. A
purchaser is consequently chargea-
ble with notice, not only where
the evidence raises a presumption
that he knew, but where there is
just ground for inferring that
reasonable diligence would have
led him to a discovery of the truth ;
Nute V. Nute, 41 New Hampshire,
60 ; Warren v. Scott, 31 Id. 332.
Onewho wilfully remains ignorant,
where the rights of a third person
are concerned, is as much in de-

154

NOTICE.

fault as if he had the knowledge
which he avoids. The question,
therefore, is not merely did the
defendant know, but had he sufli-
cient information to render it his
duty to inquire, and would an in-
vestigation, in the ordinary course
of business, have led to a discovery
of the equity which the complain-
ant is endeavoring to assert ; or, as
the rule is sometimes stated, a pur-
chaser has notice not only of what
is definitely communicated to him,
but of all that a proper use of that
information would haveenabled him
to ascertain, ante, 123 ; Danforth
V. Dart, 4 Duer, 106 ; Williamson
V. Brown, 15 New York 354, 362
Sigourney v. Mann, t Conn. 324
Peters v. Goodrich, 3 Id. 146
Pendleton v. Fay, 2 Paige, 202
Eoxie V. Carr, 1 Sumner, 193
Hawly V. Cramer, 4 Cowen, tlT
Jackson v. Caldwell, 1 Id. 622
Doyle V. Teas, 4 Scammon, 202
Blaisdell v. Stevens, 16 Vermont,
179; Stafford v. Ballou, IT Id
320; M'Daniels v. The Flower
Brook Man. Co., 22 Id. 2T4; Ste-
vens V. Goodenough, 26 Id. 676 ;
Eindev. Vattier,! M'Lean, 110; 7
Peters ; Bunting v. Picks, 2 Dev.
& Bat. Ch. 130 ; Bartlett v. Glass-
cock, 4 Missouri, 62 ; Gibbes v.
Cobb, 7 Richardson's Eq. 54 ;
Ringgold v. Bryan, 3 Maryland
Ch. Decisions, 488 ; Stockelt v.
Taylor, lb. 537 ; Pinggold v.
Waggoner, 14 Arkansas, 69 ;
Swarthout v. Curtis, 1 Selden,
301 ; Maybin v. Kerby, 4 Richard-
son's Eq. 105; Center y. The Bank,
22 Alabama, 743 ; M'Geher v.
Gendrat, 20 Id. 95.
" Much less," said Euffln, C. J., in

Bunting v. Picks, " than actual or
particular knowledge, in detail, is
sufficient to convert a person into
a trustee, who co-operates with a
dishonest trustee in an act amount-
ing to a breach of trust. Con-
structive notice, from the posses,
sion of the means of knowledge,
will have that effect, although the
party were actually ignorant, but
ignorant merely because he would
not investigate. If anything ap-
pears in the course of the nego-
tiation calculated to attract atten-
tion or stimulate inquiry, the pur-
chaser is affected with knowledge
of all that the inquiry would have
disclosed."

In like manner, " if one have
knowledge of distinct facts, af-
fecting the title of land which he
is about to purchase, he is not at
liberty to close his eyes and then
screen himself under a plea of ig-
norance of other facts connected
with the facts already known to
him ; but he is bound in good
faith to make reasonable inquiry,
and will be presumed to have done
so, and will be affected with notice
of all that he might have learned
by such inquiry ; Blaisdell v. Ste-
vens, 16 Vermont, 186."

Accordingly notice of a mort-
gage is notice of another incum-
brance, which is recited in the
mortgage deed, ante, 124. So one
who has notice through a lis pendens
of certain facts, is chargeable with
notice of other facts to which these
lead by a natural sequence ; Slay-
ter V. Green, 4 Johnson's Ch. 38.

It results from these decisions
that whatever is sufficient to di-
rect the attention of a purchaser

LE NEVE V. LE NEVE,

155

to the existing right or equity of
a third person, and enable him to
ascertain that it will be prejudiced
by the sale, operates as notice;
The Earitan Water Power Co. v.
Veghte, 6 C. E. Green, 463, 418 ;
Hoy V. Bramhall, 4 Id. 563. In The
Power Co. V. Veghte, a purcliaser
was accordingly held to have no-
tice of an easement resulting from
the execution of a parol license,
and so distinctly marked on the
land, that it could not escape the
observation of any one who visited
the premises with a view to buy-
ing. The same point was deter-
mined in Randall v. Silverthorn,
4 Barr, 173 ; and Blatchly v. Os-
horn, 33 Conn. 226.

It has been repeatedly held that
notice in one transaction is not no-
tice in another, post^ 1Y2. See Me-
han v. Williams, 12 Wright, 238;
The Bank of Louisville v. Cur-
ren, 36 Iowa, 555 ; Fallon v.
Burnet, 2 Hare, 394, 404; Low-
fher V. Carlton, 2 Atkins, 242 ;
Wyllie V. Pollen, 32 Law Journal,
Ch. N. S. 182. This is sometimes
treated as peculiar to the relation
of agency, but is a general rule,
applying whether the person to
whom the information is commu-
nicated is a principal or agent ;
Boggs v. Varner, 6 W. & S. 469,
473. It would obviously be un-
reasonable to infer as a conclusion
of law, and without regard to cir-
cumstances, tliat what is once
known will always be present to
the memory. The doctrine of con-
structive notice has its root in
a principle which is more fixed
than memory. That which a man
ought to know, as it regards the

matter in hand, he will be pre-
sumed to know. But it is not in-
cumbent on him to carry the infor-
mation which he acquires while
engaged in the transaction of one
piece of business, through the sub-
sequent affairs of life. This is the
more true, because the mind at-
tends to so much of what is before
it as the exigency of the case re-
quires, and dismisses even that,
when the occasion for it ceases.
It may be just to fix a purchaser
with notice of that which appears
in his title-papers, so far as it is
relevant to the right acquired, but
it would be of injurious conse-
quence to hold that a recital in a
conveyance of one tract of land, is
notice of a fact, which though im-
material at the time, becomes im-
portant subsequently on the ac-
quisition of a different tract. A
purchaser need only give heed to
so much of a deed as relates to
his then purchase, and affects the
title wliich he is about to acquire ;
Boggs v. Varner ; Hamilton v.
Rogers, 2 Schoales & Lefroy, 315,
327, ante, 134.

It results from these considera-
tions, that as constructive notice is
not proof of knowledge, so notice
should not be constructively in-
ferred from evidence that the pur-
chaser had information at an ante-
cedent period, or in the course of
a different transaction, which would
have been notice if it had been re-
ceived at the time. In Boggs v.
Varner, 6 W. & S. 469, a convey-
ance was made to the defendant in
1821, in which the premises were
described as bounded by "land
demised to John Boggs." Boggs

156

NOTICE.

was then in actual possession of
the land thus referred to, and so
continued for several years ; and
evidence was adduced that this
was known to the defendant, who
visited at the house. In 1825, the
house was consumed by fire ; the
family removed to another State ;
and the land remained vacant
until 1828, when it was purchased
by the defendant. It was held
that these circumstances were not
notice to the defendant of Boggs'
title, nor evidence whence a jury
could infer such notice.

This doctrine is qualified by the
not less well established principle
that knowledge is equivalent to no-
tice, ante, 148. If the principal, or
an agent whom he employs to effect
the purchase, knows that which
renders the transaction fraudulent,
it may be set aside by the injured
party without regard to when the
information was acquired. It is an
invariable rule that one cannot ac-
quire title through his own wrong,
nor through the wrong of an-
other, because the adoption of the
act makes him particep criminis,
however innocent he may have
been in the first instance.

It should, nevertheless, be re-
membered in the application of
this rule, that constructive notice
is not always,' or even generally,
evidence of knowledge, where the
question is one of guilty intent, or
actual fraud. See Wilde v. Gibson,
House of Lords Cases, 605, 623,
ante, 145.

It results from what has been
said, that a purchaser will have
notice where he knows that the
vendor has no equitable right to

the property which he is about to
sell ; where he has authentic infor-
mation to that effect ; or, finally,
where his information, though not
full or accurate, is yet such as
no prudent or conscientious man
would disregard without inquiry.
Notice of the kind last mentioned
is sometimes styled constructive
notice, ante, 122; but is properly
classed under the head of actual
notice ; Williamson v. Brown, 15
New York, 354, 359. Actual no-
tice passes into that which is merely
constructive by such nice grada-
tions, that it is not easj' to draw
the line ; see Boyle v. Teas, 4
Scammon, 202, 244 ; but it would
seem that one who is informed of
that which renders it his duty to in-
quire, has actual notice, whether he
does or does not follow out the clue.

The line of demarcation between
actual and constructive notice was
carefully drawn in Williamson v.
jRroMW, 15 New York, 354. Selden,
J., said : " The plaintiff's counsel
contends that knowledge sufficient
to put the purchaser upon inquiry,
is only presumptive evidence of ac-
tual notice, and may be repelled
by showing thab the party did in-
quire with reasonable diligence,
but failed to ascertain the existence
of the unregistered conveyance,
while, on the other hand, it is in-
sisted that notice, which makes it
the duty of the party to inquire,
amounts to constructive notice of
the prior conve3'ance, the law pre-
suming that due inquiry will
necessarily lead to its discovery.

The counsel for the defendant
cites several authorities in support
of his position, and among others,

LE NEVE V. LB NEVB.

157

the cases of Tuttle v. Jackson^ and.
Grimstone v. Carter, supra. In
the iirst of these cases, Walworth,
Chancellor, says : " If the subse-
quent purchaser knows of the un-
registered conveyance at the time
of his purchase, he cannot protect
himself against that conveyance ;
and whatever is sufficient to make
it his duty to inquire as to the
rights of others, is considered
legal notice to him of those
rights ; and in Grimstone v. Car-
ter, the same judge says: "And
if the person claiming the prior
equity is in the actual possession of
the estate, and the purchaser has
notice of that fact, it is sufScient
to put him on inquiry as to the
actual rights of such possessor,
and is good constructive notice of
those rights."

It must be conceded, that the
language used by the learned chan-
cellor in these cases, if strictly ac-
curate, would go to sustain the
doctrine contended for by the de-
fendant's counsel.

Notice is of two kinds, actual
and constructive. Actual notice
embraces all degrees and grades of
evidence, from the most direct and
positive proof, to the slightest cir-
cumstances from which a jury
would be warranted in inferring
notice. It is a mere question of
fact, and is open to every species
of legitimate evidence which may
tend to strengthen or impair the
conclusion. Constructive notice,
on the other hand, is a legal in-
ference from established facts, and
like other legal presumptions, does
not admit of dispute. " Construc-
tive notice," says Judge Story,

" is in its nature no more than
evidence of notice, the presump-
tion of which is so violent that
the court will not even allow of its
being controverted." (Story's Eq.
Juris. § 399.)

A recorded deed is an instance
of constructive notice. It is of
no consequence whether the sec-
ond purchaser has actual notice of
the prior deed or not. He is bound
to take, and is presumed to have,
the requisite notice. So, too, no-
tice to an agent is constructive
notice to the principal, and it
would not in the least avail the
latter to show that the agent had
neglected to communicate the fact.
In such cases, the law imputes
notice to tlie party, whether he
has it or not. Legal or implied
notice, therefore, is the same as
constructive notice, and cannot be
controverted by proof.

But it will be found, on looking
into the cases, that there is much
want of precision in the use of
these terms. They have been not
unfrequently applied to degrees of
evidence barely sufficient to war-
rant a jury in inferring actual
notice, and which the slightest op-
posing proof would repel, instead
of being confined to those legal
presumptions of notice which no
proof can overthrow. The use of
these terms by the chancellor,
therefore, in Tuttle v. Jackson, and
Grimstone v. Carter, is by no
means conclusive.

The phraseology uniformly used,
as descriptive of the kind of notice
in question, " sufficient to put the
party upon inquiry," would seem
to imply that if the party is faith-

158

NOTICE

ful in making inquiries, but fails
to discover the conveyance, he will
be protected. The import of the
terms is, that it becomes the duty
of the party to inquire. If, then,
he performs that duty, is he still
to be bound, without any actual
notice ? The presumption of no-
tice which arises from proof of
that degree of knowledge which
will put a party upon inquiry is, I
apprehend, not a presumption of
law, but of fact, and may, there-
fore, be controverted by evidence."

To an allegation that the defend-
ant had sufficient information to
have enabled him to ascertain the
truth, it may be replied that if
some of the facts communicated
to the defendant were suspicious,
and if standing alone would have
rendered it incumbent on him to
inquire, they were yet explained or
qualified by other facts, and taking
the whole, there was no reasonable
cause for doubt ; Curtis v. Blair,
4 Cushman, 310; or that although
it would have been the defendant's
dutj"^ to inquire, in view of all the
circumstances, if there had been
any means of ascertaining the
truth, still there was no such clue,
and the law does not exact an
investigation that can lead to no
good result ; or that the defendant
being informed of circumstances
tending to show that the vendor's
title was subject to a latent equity
or unrecorded deed, proceeded in
the usual course of business to in-
vestigate the title, and was unable
to discover anything that would
confirm the truth of the report.

It is well settled under the first
head, that one who is informed by

a friend or neighbor that the land
which he is about to purchase was
sold to a third person, but is also
told by the same informant that
the contract has been rescinded,
may buy with a safe conscience,
unless there is some sufficient
reason for crediting the first part
of the statement and rejecting the
last. Prima facie, hoVa. are equally
false or equally trustworthy, and
in either aspect there is nothing to
put the purchaser on inquiry ;
Williamson v. Brown, 15 New
York, 354, 360 ; Buttrichy.Hildon,
3 Met. 335 ; Rogers v. Wiley, 14 Illi-
nois, 65. So, in BrighVs Trusts,
21 Beavan, 43, notice of a deed
accompanied by an erroneous state-
ment of its contents, was held in-
sufficient to charge the conscience
of the purchaser.

It has been said to result from
the same principle, that where the
vendor couples an admission that
would be notice if it stood alone,
with an explanation which is satis-
factory if true, the purchaser may
accept the whole as veritable, and
will not be responsible if the event
shows that he was deceived ; Curtis
V. Blair, 4 Cushman, 309, 328.

Such an application of the rule is
questionable. Where a vendor ad-
mits that he has sold the premises
to a third person, but that the con-
tract is at an end, the former alle-
gation is against his interest, the
latter for it, and it can hardly be
said that both have an equal claim
to credence. It may be contended
that the statement taken as a
whole does not vary the case, and
that there is consequently no mo-
tive for falsification ; but the ven-

LB NEVE V. LE NEVE.

159

dor may still intend to mislead the
buyer by an affected candor, and
induce him to disregard what he
hears from others. A prudent
man should consequently, under
these circumstances, consult the
former purchaser, or require the
production of such evidence un-
der his hand, as will remove all
doubt ; and one who does not ob-
serve this precaution cannot well
be viewed as a bona fide purchaser.

The weight of authority accord-
ingly is, that a purchaser who is
put on inquiry, cannot safely rely
on an explanation given by one,
who like the vendor, may have a
motive for misleading him, and
should have recourse to some dis-
interested source of information ;
Bunting v. Ricks, 2 Dev. & Bat.
Ch. 130 ; Russel v. Petrie, 10 B.
Monroe, 186.

In Russell v. Petree, Simpson, J.,
said : " It is admitted by the an-
swer that the mortgagees had notice
at the time the mortgage was exe-
cuted, that the bonds for the lots
were in the possession of Russell,
having been previously deposited
in his hands by the mortgagor as
a security for certain purposes. It
is alleged, however, that the mort-
gagor informed them at the same
time, that although Russell held
the bonds in his possession, he had
no further lien upon them or the
property, his claim having been
previously discharged in full. The
information they had, apprising
them of the fact that the bonds
for the lots were in the possession
of Russell, was sufficient to put
them upon an inquiry into the na-
ture and extent of his claim. If

they relied upon the statements of
the mortgagor, they did so at their
peril. It was their duty to have
ascertained from Russell himself,
whether he had any claim upon the
property. If they failed to do it,
the law deems it their own fault,
and considers them constructively
notified of his equitable rights."

It is said, in like manner, in
Dart on Vendors, chapter 15, sec-
tion 5, page 786, that if " a pur-
chaser, having notice of a deed as
being one that affects the property,
is induced to rely upon the ven-
dor's representation of its contents,
the court will hold him bound by
those contents, although it satis-
factorily appeared from the nature
of the transaction, that he placed
implicit and bona fide confidence
in the good faith of the vendor."

And not only so,

but also with notice of ever3'thing
which might reasonably be learned
from requiring production of the
deed, as, e. g., that it had been de-
posited as a security ; Peto v. Ham-
mond, 30 Beav. 495 ; 8 Jur. N. S.
550."

One who is informed by the
vendor that the land which he is
about to buy is subject to an un-
recorded trust or mortgage, should
not be satisfied with an assurance
that the debt which the instrument
was intended to secure has been
paid ; Price v. M^ Donald, 1 Mary-
land, 403 ; Hudson v. Warner, 2
Harris & Gill, 415. In Hudson v.
Warner, the answer denied that
the defendant had notice of any
incumbrance, equitable or legal.
It then went on to say, that he in-
quired of the vendors before buy-

160

NOTICE.

ing, whether there were any out-
standing incumbrances, and was
informed by them that they had
given the complainant a bill of sale
of some part of their property as
security for his endorsement, but
that the complainant had not been
called on to pay the note, and that
the bill of sale did not in anyway
affect the goods which they de-
sired to sell ; and it was further
averred, that the defendant bought
on the faith of this information,
which he implicitly believed. The
court held, that the defendant had
been negligent, and could not be
regarded as a bona fide purchaser.
It was his duty to go to the com-
plainant, and inquire of him,
instead of trusting the represen-
tations of persons who were inter-
ested in concealing the real state
of the case.

In like manner, where after the
sale, and before payment, the pur-
chaser was informed by the vendor
of the existence of a deed of trust,
in the nature of a mortgage, and
at the same time told that the debt
was satisfied, the court held, that if
the purchaser chose to credit this
statement without inquiry, it was
at his peril ; Price v. McDonald.

This course of decision should
not be carried to the extent of vis-
iting one who has been himself
deceived, as if he were particeps
criminis. There is a refinement
of artifice against which few men
are secure. A purchaser who is
misled by such means cannot
justly be charged with negligence
in not making the investigation
which would have resulted in a
discovery of the fraud. In Jones

V. Smith, 1 Hare, 43, the question
was whether a mortgagee had no-
tice that the premises had been
settled on the mortgagor's wife. It
appeared in evidence that the mort-
gagor stated that a settlement of
his wife's property had been made
before marriage, but that it did
not include the land in question,
which belonged to him. The mort-
gagor then requested to see the
instrument, and was told that it
could not be obtained without
offending an aged relative with
whom it had been left for safe
keeping, ante, 12'7. It was held by
the Vice-Chancellor, and the court
above, that the mortgagee might
repose on tliis statement without
further inquiry. He was not
bound to accept part, and reject
the rest; nor could he justly be
regarded as in default for not sup-
posing that the person with whom
he dealt, would carry out a delib-
erate fraud by artifice. The same
principle was applied in Sogers v.
Jones, 8 New Hampshire, 264. A
creditor there issued an attach-
ment, which bound the land of the
debtor. ,The latter proposed to
give a mortgage for the debt, if
the creditor would withdraw the
attachment ; stating that he had
signed and sealed a deed, but that
the instrument was still in his
possession undelivered. The plain-:
tiff thereupon relinquished the at-
tachment, and took the mortgage ;
and it was held that he was not
affected with notice of the deed,
which had in point of fact been
delivered to the defendant, and
then returned by him to the
grantor for some purpose which

LE NEVE V. LE NEVE.

161

■was not apparent. Parker, J., said,
that " if the defendant sought
to avail himself of the vendor's
statement, -he must take the whole
together, and so taken, it was not
notice that the premises had been
conveyed, but that a conveyance
was contemplated, and would be
made, if the lien of the attachment
was removed. That the defendant
was in possession of the premi-
ses, did not vary the case, or make
it requisite to inquire of him.
Possession was prima facie evi-
dence of notice, subject to rebut-
tal. Tlie plaintiff had good reason
to know that the defendant had no
title aside from the deed, and
might not less reasonably believe
that he did not acquire title under
the deed."

The case of Birdsall v. Russell,
29 N. Y. 220, may be classed under
the second head. There, two cou-
pon bonds, numbered 336 and 337,
were stolen from the complain-
ants. The defendant subsequently
bought two bonds of the same
issue, bearing the numbers 225
and 238, in the usual course of
his business. There could be no
reasonable doubt under the evi-
dence that these were the. plain-
tiff's bonds, which had been altered
to escape detection. It was con-
ceded that the purchase was made
in good faith, unless the circum-
stance that the numbers had appa-
rently been changed, operated as
constructive notice. It was held
that an inference of notice can
not be drawn from that which does
not of itself convey the requisite
information, unless it appears
that the inquiry suggested by the
VOL. II. — 11

facts disclosed, would, if fairly
pursued, result in the discovery
of the defect. There must appear
to be, in the nature of the case,
such a connection between the facts
disclosed and the further facts to
be discovered, that the former
could justly be viewed as furnish-
ing a clue to the latter. The
hidden fact in the case before
the court was that the bonds be-
longed to the plaintiffs, and were
stolen from them. The mere
knowledge that the numbers on
the bonds had been changed gave
the purchaser no clue which, if
followed up, would necessarily, or
even probably, lead to knowledge.
The case of The Cambridge Val-
ley Bank v. Delano, 48 New York,
may be referred to the same prin-
ciple.

It is well settled under the third
head that the inference that a pur-
chaser who is put upon inquir}"- has
notice, may be rebutted by evidence
that he made a diligent investiga-
tion, which did not lead to a dis-
covery of the complainant's equity ;
Williamson v. Brown, 15 New
York, 554.

In Williamson v. Brown, the
referee before whom the cause was
tried, reported that the purchaser
" had sufficient information or be-
lief of the existence of an unregis-
tered motgage to put him on in-
quiry," and " that he pursued such
inquiry to the extent of his in-
formation and belief, and did not
find that such mortgage existed, or
had been given." From these
facts, the referee drew the in-
ference, that the plaintiff was
chargeable with notice of the mort-

162

NOTICE.

gage. The report was confirmed
by the Supreme Court, and a judg-
ment entered for tlie defendant,
which was reversed by the Court
of Appeals. Selden, J., said, the
" truer doctrine is, that where a
purchaser has knowledge of any
fact sufficient to put him on inquiry
as to the existence of some right or
title in conflict with that he is
about to purchase, he is presumed
either to have made the inquiry,
and ascertained the extent of such
right, or to have been guilty of a
degree of negligence equally fatal
to his claim, to be considered as a
bona fide purchaser. This pre-
sumption, however, is a mere in-
ference of fact, and may be repelled
by proof that the purchaser failed
to discover the prior right, not-
withstanding the exercise of
proper diligence on his part."

How far such an inquiry must
be prosecuted, and by what means,
are to a considerable extent ques-
tions of fact, depending on the
circumstances of each case; but it
is, nevertheless, possible to lay
down some general principles.

The first duty of a purchaser is
to search the record, and it will
always be a strong point in his
favor, that there was nothing there
that could operate as notice. So
if he hears that which renders it
incumbent on him to inquire, and
on an examination of the registry
has good reason to infer that the
statements made to him are with-
out foundation, he may generally
rest satisfied in the belief that he
has done all good faith demands.
Accordingly, where one who is put
on inquiry as to the existence of a

sherifi"'s deed goes to the proper
office, and does not find it of re-
cord, his obligation is fulfilled,
and he need look no further ; Bel-
las V. McCarthy, 10 Watts, 13, 28 ;
and a similar decision was made in
Jackson V. Van Valkenberg, 8
Cowen, 266. It has been held in
like manner, that the presumption
of notice arising from possession,
may be rebutted by evidence that
the occupant has conveyed the
premises by a deed which appears
of record, or is produced and ex-
hibited by the vendor. But it
has been decided in other instances,
that such an occupant may show,
as against a purchas.er who omits
to ihquire of him, that the deed is
subject to an unrecorded defeas-
ance, or given as a security for a
loan, and consequently a mort-
gage.

An examination of the record
will not exonerate the conscience
of the purchaser when the al-
leged equitj' depends on a fact
in pais ; Blatchley v. Osborn, 33
Conn. 266; Bandally. Silverthorn,
4 Barr, 1*73, ante ; as for instance,
that the consideration money of
the deed under which the vendor ac-
quired.the title was paid hy his wife,
and that the land is consequently
affected with a resulting trust for
her benefit ; and a purchaser, who
has reason to believe that such is
the case, from circumstances within
his knowledge, is grossly negligent
in not inquiring of the original
grantor, or some other disin-
terested person who knows the
truth ; Baker v. Bliss, 39 New
York Rep. 19.

A purchaser need not be astute

LB NEVE V. LE NEVE.

163

in discovering defects which are
not apparent on the title papers.
If an investigation in the usual
course of business does not lead
to a knowledge of the truth, he
need not look further, imless he is
cognizant of some circumstance
which not only suggests a doubt,
but opens a definite path for in-
quiry. That a mortgage which is
recited in the deed by which the
premises were conveyed to the
vendor as an existing incumbrance,
appears of record to have been
satisfied before the sale, is not
constructive notice of another in-
cumbrance, which is not registered,
and of which there is no actual
notice, although it finally appears
that the former incumbrance was
substituted in the recital for the
latter, through a mistake which
would have been discovered by ap-
plying to the original grantor, or
the convej'ancer who drew the
deed ; Cambridge Valley Bank v.
Delano, 48 New York, 327.

All that can ordinarily be re-
quired of a purchaser who is in-
formed that a third [lerson has an
unrecorded riglit or interest in the
premises, is to call on the alleged
claimant for information, and if
the latter declines, or is unable
to respond, and the purchaser has
no available means of ascertaining
the truth of the report, he will be
safe in accepting the title. If such
silence does not amount to an
estoppel, it is at least a reason why
the purchaser should not be charged
with bad faith for not being better
informed than the person princi-
pally interested ; Massie v. Green-
how, 2 Patton & Heath ; M'Gehee

V. Gindrat, 20 Alabama, 951 ;
Epley V. Witherow, Y Watts.

In M'Gehee v. Gindrat, a
debtor against whom judgment had
been recovered for the use of a
fictitious person, requested the at-
torney of record to inform him
who was the owner of the judg-
ment, in order that he might pay
the debt to him. The attorney,
acting under the instruction of
the real owner, refused to disclose
his name, but informed the debtor
that the nominal plaintiff had no
right to receive the amount of
the judgment, and that it had been
transferred to one of his creditors.
The debtor afterwards paid the
nominal plaintiff, and asked to
have the judgment satisfied of re-
cord, and it was held that one who
refuses to impart a fact peculiarly
within his knowledge, in response
to a question asked in good faith,
ought not to be allowed to allege
that the party whom he keeps in
ignorance was put on inquiry,
and, therefore, had constructive
notice, because the inquirjr is ac-
tually made and fail^ through his
default.

The doctrine is stated in the
following terms, in Dart on Ven-
dors, 88, chap. III., sect. 1 : "We
may also, in connection with the
above head, observe, that a pur-
chaser suspecting that a third per-
son h'AS a claim on the estate,
should (Sug. 1,Ibottson y.Rhoades,
2 Vern. 554) in the presence of
witnesses (who may take notice of
what passes ; Doe v. Perkins, 3
Term. R. 149 ; Burrough v. Mar-
tin, 2 Camp. 112; Woody. Cooper,
1 Car. & K. 645,) inquire of him

lU

NOTICE.

whether such be the fact, and the
amount of the claim, at the same
time stating his own Intention to
purchase (2 Vera. 554) ; and if
such person deny the existence of
the claim, or assert that it is con-
fined to a special sum, he will in
equity be bound by his denial or
assertion {Pearson y. Morgan, 2
Bro. C. C. 388 ; and see 6 Vesey,
183, and 3 Vesey & Bearnes, 111).
But, although bound to answer
truly if at all, a mortgagee, it
would appear, may decline to an-
swer unless the intending pur-
chaser offer to redeem. (See Bug-
don V. Bignold, 2 Y. & C. C. C.
390.) But it has been more re-
cently held, that where property
cannot be obtained without a par-
ticular person saying whether he
claims it or not, it is not sufficient
that he should hold his tongue, but
he must state expressly whether
he claims it or not. In re Prim-
rose, 3 Jur. N. S. 899, where the
claimant was visited with costs."

The circumstances under which
a purchase is made may be so
clearly indicative of notice that
the conclusion will follow as a
matter of law. See Kennedy v.
Green, 3 Mylne & Keen, 699;
Parke v. Chadwick, 8 W. & S.
96. Thus, where it appears that
the sale of a mortgage was nego-
tiated by the mortgagor, and that
the price was paid to bim, the as-
signee will be presumed to have
had notice that the obligation
which the mortgage was profes-
sedly given to secure, was not
valid, because if it were, the right
of disposition would be in the as-
signee, and he would claim and

receive the consideration for the
assignment. In Mulliaon'ss Estate,
18 P. P. Smith, 212, an assignee
who had given value on the faith
of a certificate from the mortgagor
that there was no defence, was
postponed on this ground to a
judgment which had been entered
subsequently to the execution of
the mortgage. It was held by
Sharswood, Justice, that "the as-
signee must be held to have taken
the mortgages with notice that
they were without consideration,
but made for the mere purpose of
raising money by the sale of them ;
that they were not owned by the
mortgagee but by the mortgagor.
This was quite sufficient to put him
upon inquiry as to whether there
were any intervening liens or incum-
brances between the date of the
mortgages and his purchase. For in
what is an entirely analogous case,
it has always been held that where
the maker of an endorsed note
offers it for discount, that is not
in the usual course of business,
and is prima facie evidence that
it is an accommodation note. If
the transaction were real, the
payee would be the owner of the
note ; he alone would have a right
to sell and dispose of it ; Parke v.
Smith, 4 W. & S. 287 ; Eckert v.
Cameron, 7 Wright, 121 ; Byles
on Bills, 126, note 1. So, if the
mortgagor negotiate the sale of a
mortgage, it is a circumstance
which ought to put the purchaser
upon inquiry."

It seems to have been thought
in Green v. Slayter, 4 I. Ch. 38,
that a purchaser who, when put on
inquiry, omits to call on the vendor

LK NEVE V. LE NEVE.

165

for information, -will be affected
with notice of all that he would
have learned, if the latter had
disclosed the real state of the
case. A similar view was taken in
Sergeant v. Ingersoll, 7 Barr, 340 ;
3 Harris, 343, ante, 49. There Ser-
geant held the legal title to a
ground rent in trust for Reed,
who entered into a covenant with
the owner of the land to extin-
guish the rent, but subsequently
sold it to a third person in fraud
of the covenant. It was conceded
the covenant was unknown to the
trustee, and that the purchaser had
no actual notice, and a conveyance
was thereupon duly executed to
her by the trustee ; but the court
held that it was her duty to
have inquired of Reed, and that
such an inquiry would have led to
a disclosure of the covenant. Gib-
son, C. J., said, " Reed could sell
his equitable ownership only, for
the legal title was outstanding in
a trustee, and the rudimental
principle of equity that he who
purchases an imperfect or inchoate
title, must stand or fall by the
case of his vendor, has never been
shaken. Mr. Reed may have un-
dertaken not to convey the legal
title himself, but to procure it to
be conveyed to her, and hence, it
is said, that when she actually re-
ceived a conveyance of it, she be-
came a bona fide purchaser of it.
Had she purchased it of Mr. Ser-
geant, she would have undoubt-
edly been so, but the fact that she
was dealing with one who had it
not, was a circumstance to arouse
suspicion and prompt inquiry. A
purchaser without notice must ap-

pear to have acted not only with
good faith, but with extreme vigi-
lance, for equity refuses to protect
the careless and the slothful. In
Hiren v. HilU 13 Ves. 114, notice
that the title deeds Were in pos-
session of another, was held to be
notice of an equitable claim by him
on the estate ; and in an anony-
mous case in 2 Freem. 137, pi.
171, the very point before us was
decided. It was held that if the
vendee knows at the time of the
purchase, that the legal estate is
in another, he is bound to take
notice of the trust. . . . Had
the purchaser demanded of Reed
why he had taken the title in the
name of Mr. Sargeant, she would
have been told that he was bound
by a covenant with Mr. IngersoU
to extinguish the ground rent at
a time to come, and that his ob-
ject was to keep it afoot in the
meantime. That would have led
to a call for the covenant, by which
tlie whole story would have been
told."

This decision carries the doc-
trine of constructive notice to its
furthest limit, if not be3'ond all
just bounds. The court seems to
have thought not only that the
title of the purchaser of an equity
cannot rise higher than that of the
vendor, hut that he is affected
with constructive notice of any in-
tervening right or equitj' arising
from the vendor's act or default.
The former proposition is unques-
tionable, unless the purchaser ac-
quires the legal title, but there
seems to be no foundation for the
latter. It may be the duty of a pur-
chaser from a cestui que trust to

166

NOTICE.

inquire of the trustee. This is
clear where the subject matter is
in the nature of real estate ; Jones
V. Jones, 8 Simons, 633 ; Wilt-
shire V. Rabbetts, 14 Id. 16 ; Wil-
motY. Pike, 5 Hare, 1 4 ; Peacock v.
Burt; Coote on Mortgas;es, Ap-
pendix, 2103 ; Sugden on Vendors,
vol. 3, 433 ; Dart on Vendors ; but
a failure to do so will not put him
in default, at all events where the
trustee, as in Sergeant v. Ingersoll
has nothing to impart ; Doe v.
Meux, 1 Hare. But there is no
rule of conduct which renders it
incumbent to seek for information
of the vendor, merely because he
does not hold the legal title. If
the transaction is a fair one inquiry
is superfluous, and it were vain
to hope for a disclosure of the
truth from one who is fraudulently
disposing of that which he has no
right to convey.

A purchaser will not be charged
with notice by being put on inquiry,
unless he has some more authentic
means of information than can be
found in an application to one who
is interested in concealing the
truth. It is useless to ask for an
explanation or denial which would
not be entitled to credence. A
failure to inquire of a tenant or
occupant, may justly be regarded
as negligence, because his silence
or misrepresentation will operate
as an estoppel, but there is no such
guaranty where information is
sought from the vendor. The rule
that one who knows that the legal
estate is outstanding in a trustee,
must take notice of the trust, ante,
49, only applies to a trust declared
in writing or known to the trustee,

and not to a subordinate or deriva-
tive equity, arising from the acts of
the cestui que trust, and studiously
concealed from the trustee and the
purchaser. The trust in Sergeant
V. Ingersoll, was to convey to
Reed, or to any one whom he might
designate, and there was conse-
quently no reason why a purchaser
from Reed shall hesitate to accept
a conveyance from the trustee.

In Wilson v. M'Gullough, 11
Harris, 440, it appeared in evi-
dence that when the plaintiffs, who
were a banking corporation, took
tlie mortgage in suit, the validity
of an unrecorded marriage settle-
ment b)^ the mortgagor, was dis-
cussed by the directors individu-
ally and at the meetings of the
board, but there was no proof that
they knew who were the trustees,
or what propertj' was included in
the deed. It was also shown tliat
the existence of some such settle-
ment was known to the cashier.
The court held that such informa-
tion was not notice, because it did
not appear that the board had any
sufficient means of ascertaining the
accuracy of the report. The
cashier, said Woodward, J., " heard
a marriage settlement spoken of,'
but who were the trustees, what
was settled, whether real or per-
sonal estate, and on what terms, and
when made, he did not hear. Was
this notice of the conveyance,
which had been made of the par-
ticular premises described in the
mortgage ? Obviously it was not.
Nor was it sufficient to put the
bank on inquiry. Por, of whom
could thej' inquire ? If of the
grantors, the conveyance was de-

LE NEVE V. LB NEVB,

167

nied, for the mortgage made by
them was a solemn assertion of
their ownership of the premises.
Indeed it is a fair presumption
from the transaction, especially
from Mrs. Wilson's joining in the
mortgage, that all proper inquiries
were made in that quarter, and
that the title was represented as in
her. Of the trustees they could
not inquire, for even the cashier-
had not heard them mentioned,
nor was any person in possession
of the premises under a title in-
consistent with that of the mort-
gagors. The public register was
searched in vain, and no clue
whatever was furnished to the
cashier, by which he f)r the direc-
tors could come to a knowledge of
the truth."

The doctrine of constructive no-
tice, as distinguished from notice
in fact, has been carried quite as
far as sound justice and policy dic-
tate, and ought not to be pushed
to the extent of denying a purcha-
ser the benefit of the presumption
in favor of innocence, to which
every one is entitled until he is
proved to have acted in bad faith,
or to have been guilty of the gross
neglect which is equivalent in effect
to fraud. " There is no case which
goes the length of saying, that a
failure of the utmost circumspec-
tion shall have the effect of post-
poning a party as if he were guilty
of fraud, or had actual notice;" 1
Story's Eq., sec. 400 ; Woodworth
T. Paige, 5 Ohio, N. S. 16. In
Ware v. Lord Egmont, 4 De Gex,
Mac. & G. 473 ; 31 English Law &
Eq. 89, the chancellor said, " I must
not part with this case without ex-

pressing my entire concurrence in
what has on many occasions of
late years fallen from judges of
great eminence on the subject of
constructive notice, namely, that it
is highly inexpedient for courts of
equity to extend the doctrine — to
attempt to apply it to cases to
which it has not hitherto been held
applicable. Where a person has
actual notice of any matter of fact,
there can be no danger of doing
injustice if he is held to be bound
by all the consequences of that
which he knows to exist. But
where he has not actual notice, he
ought not to be treated as if he
had notice, unless the circumstan-
ces are such as enable the court to
say not only that he might have
acquired the notice with which it
is sought to affect him — that he
would have acquired it but for his
gross negligence in the conduct of
the business 4n question." So in
Woodworth V. Paige, the court
unqualifiedly affirmed the dicta of
the Vice Chancellor in Jones v.
Smith, 1 Hare, 43, that, " if there
is no fraudulent turning away from
a knowledge of the facts which the
' res gestse ' would suggest to a
prudent mind ; if mere want of
caution, as distinguished from
fraudulent and wilful blindness, is
all that can be imputed to the pur-
chaser, then the doctrine of con-
structive notice will not apply —
then the purchaser will in equity
be considered, as in fact he is, a
bona fide purchaser without no-
tice."

Notice to an agent. It is es-
tablished in accordance with the
principal case, that notice to an

168

NOTICE.

agent in the course of the busi-
ness which lie is transacting for
the principal, is notice tq the
principal for all the purposes of
that transaction ; Hovey v. Blan-
chard, 13 New Hampshire, 145 ;
Astor V. Wells, 4 Wheaton, 466 ;
Barnes Y. M' Christie, 3 Penna. 6'7 ;
Jackson v. Sharp, 9 Johnson, 163 ;
Jackson V. Winsloio, 9 Cowen, 13 ;
Jackson V. Leek, 19 Wend. 339;
Westervelt v. Haff, 2 Sandford,
98 ; -Griffith v. Griffith, 2 Paige,
315; Blair V. Owles, 1 Mumford,
38 ; Jones v. Bamford, 21 Iowa,
217 ; Myers v. -Boss, 3 Head. 59.

In other words, one who acts
through another will be presumed
to know all that the agent learns
during the transaction, whether it
is actually communicated to him or
not, ante, 145. There is no differ-
ence in this respect between actual
and constructive notice, for if there
were, an agent would be employed
whenever it was convenient to
remain in ignorance; The Bank
of the U. S.Y. Davis, 2 Hill, 451,
461. Or, as the reason of the
rule was stated by Lord Brougham,
" policjf and the safety of the public
forbid a man to deny knowledge
while he is so dealing as to keep
himself ignorant, or so that he may
keep himself ignorant, and yet all
the while let his agent know and
himself perhaps profit by that
knowledge;" Kennedy v. Green, 3
Mylne & Keen, 699, 119.

The directors or trustees of a cor-
poration are the general agents of
the corporation when assembled as
aboard, and notice to them, or notice
to a director individuall3', while act-
ing in the business of the corpora-

tion, or under circumstances which
render it incumbent on him to
communicate his knowledge to tlie
board, is subject to the general
rule that notice to an agent in the
course of his employment, is notice
to the principaL, See The Fulton
Bank V. The Canal Co., 4 Paige,
127 ; The Bank of the U. S. v. Davis,
2 Hill. 451 ; The Fulton Bank v.
Benedict, 1 Hall, 480; The Wash-
ington Bank v. Lewis, 22 Pick. 24.
The principle is the same when
notice is given to the cashier or
president of a corporation, in mat-
ters within the scope of his official
duty; The Fulton Bank v. The
Canal Co. ; The New Hope Bridge
Co. V. The Phoenix Bank, 1 Corn-
stock, 156 ; The Branch Bank v.
Steele, 10 Alabama, 195.

In like manner notice to a trus-
tee is notice to the cestui que trust,
and it is immaterial that the notice
was given before the conveyance
in trust was executed, if the whole
forms one transaction ; Myers 'v.
Boss, 3 Head. 60. So if A. having
notice buys for B. and the latter
ratifies the purchase, he is affected
with notice, although he did not
employ B. or know of his design ;
Myers v. Ross, ante.

It is equally well settled, that
where two or more persons are
employed severally or jointly as
agents in the purchase of an estate,
or the transaction of business of
any other kind, notice to one of
them while so engaged, will be
as effectual as regards the princi-
pal as if it were given to all. This
is obvious because the respon-
sibility of the principal for the
conduct of each of the agents is

LB NEVE V. LB NEVE.

169

as great as if he -were the only
one ; and because each of them
is under an equal obligation to
communicate his knowledge to
the principal ; The Bank of the
United States v. Davis, 2 Hill, 451,
464. It follows, that notice to one
of the directors of a bank while
engaged in business of the princi-
pal, is notice to the bank itself;
The U. S. Bank v. Davis. " The
corporation," said Nelson, Chief
Justice, " acts and speaks through
the several directors, who jointly
represent it in the particular trans-
action. In judgment of law it
is present conducting the business
of the institution itself ; the acts of
the several directors are the acts
of the bank ; their knowledge, the
knowledge of the bank ; and notice
to them, notice to the bank."

The principle is the same,
whether the agency is express or
implied ; and where land is con-
veyed to the members of a firm in
satisfaction of a partnership debt,
notice to one of the partners will
aflFect all ; Watson v. Wells, 5 Conn.
468. But the mere circumstance
that a purchaser is made by two
jointly, will not make them agents
for each other, or render notice to
one binding on both ; Flagg v.
Mann, 2 Sumner, 486, 534 ; Sny-
der V. Sponable,! Hill, 56T ; 7 Id.
427 ; and in Snyder v. Sponable, it
was held to follow, that when a con-
veyance is made to a husband and
wife as joint tenants, notice to the
husband will not affect the wife
where the consideration moves from
her, although the case would be
different, if the purchase-money
Came from his estate. Bronson,

J., said that " it did not appear
that the relation of principal and
agent existed in fact or impliedly
between the vendees. Both were
present at, and took part in the
making of the contract, and the
deed was delivered to both. One of
several joint purchasers might act
as agent for the others, and if he
did, notice to him would bind the
others. But such an inference
would not be drawn in the absence
of proof. Moreover, married wo-
men, infants, lunatics and other
persons not sui juris, were in
general capable of appointing an
attorney."

It would seem, notwithstanding
the doubt thrown out in the last
sentence, that the incapacity of a
married woman to act by attorney,
will not preclude her from dele-
gating any authority that may be
requisite for the care and manage-
ment of her estate ; and that if she
accepts and profits by the act of
an agent, she must take it as a
whole, and will be affected by any
knowledge on his part or notice to
him, that would have invalidated
the sale, if he had bought for him-
self; Duke V. Balme, 16 Minne-
sota, 306 ; Clark v. Fuller, 39
Conn. 238.

The rule will not be carried be-
yond its reason ; The Bank of the
U. S. V. Davis, 2 Hill, 451.
It forbids a man to acquire an
advantage at the expense of his
neighbor by using the eyes of an-
other, but it does not ordinarily
affect him with notice of that which
he would not have learned with
ordinary diligence, if he had trans-
acted the business in person. No-

170

NOTICE.

tice to an agent, consequently, is
not notice to the principal, unless
it occurs in the course of the
transaction in which he represents
the principal ; Bracken v. Miller^
4 W. & S. 102; Hood v. Fahnes-
tock, 8 Watts, 489; The New
York Central Ins. Co. v. The Na-
tional Ins. Co., 20 Barb. 468;
Jackson v. Sharp, 9 Johnson, 163 ;
The Bank of the United States v.
Davis, 2 Hill, 451 ; Winchester v.
The Baltimore Railroad Co., 4
Maryland, 231 ; The Howard Ins.
Co. V. Halsey, 4 Selden 211 ;
Roberts v. Fleming, 53 Illinois,
598 ; Smith's Appeal, 11 Wright,
128 ; Weisser v. Dennison, 6 Sel-
den, 68; Mehan v. Williams, 12
Wright, 238 ; The Farmers' Bank
Y. Payne, 25 Conn. 444 ; Willis v.
Valette, 4 Metcalfe, Ky. 186;
Keenan v. The Missouri Ins. Co.,
12 Iowa, 106 ; Pierce v. The Red
Bluff Hotel, 31 California, 160;
W Cormick v. Wheeler, Z^ Illinois,
115 ; Kennedy v. Green, 3 Myle
& Keen, 699; Martin v. Jackson,
3 Casey, 504, 508. It is now well
settled, said Sergeant, J., in Hood
V Fahnestock, that if " one in the
course of his business as agent,
attorney, or counsel for another,
obtains knowledge from which a
trust would arise, and afterwards
becomes the agent, attorney, or
counsel for a subsequent purchaser
in an independent and unconnected
transaction, his previous knowl-
edge is not notice to such other
person for whom he acts. The
reason is, that no man can be sup-
posed to carry in his mind the
recollection of former occur-
rences ; and, moreover, in the case

of the attorney or counsel, it
might be contrary to his duty to
reveal the confidential communi-
cations of his client. To visit the
principal with constructive notice,
it is necessary that the knowledge
of the agent or attorney should be
gained in the course of the same
transaction in which he is em-
ployed by his client.''

So in The New York Ins. Co.
V. The National Ins. Co., Nel-
son, J., remarked : " That although
in general whatever is known to
the agent must be presumed to be
known to the principal, I am in-
clined to think that the better
opinion is, that this rule is con-
fined to that class of cases, where
the knowledge of the fact comes
to the agent while he is acting for
his principal, in the course of the
very transaction which becomes
the subject of the suit."

It results from these decisions,
that a principal is not chargeable
with notice of that which is brought
to the knowledge of the agent, while
the latter is acting for himself or
for a third person ; if Cormick v.
Wheeler, 36 Illinois, 114 ; see Win-
chester v. The Susquehanna Rail-
way Co., 4 Mar3'land, 221. Such
is clearly the rule where the trans-
action in which the notice is given
is anterior ; and the better opinion
would seem to be that it applies
where an agent, who is em-
ployed simultaneously by difierent
principals, becomes acquainted
with a fact in conducting the busi-
ness of one, which he fails to com-
municate to the other, unless the
silence of the agent is a fraud for
which the principal is answerable.

liE NEVE V. LE NEVE.

171

For a like reason, an executor
•will not be charged, as such, with
notice, by showing that the facts
■were communicated to him dur-
ing the testator's life ; Oold v.
Death, Croke Jac. 381, Hobart, 92 ;
nor will notice to one before he be-
comes trustee affect the cestui que
trust ; Boss v. Hbrton, 2 Cushman,
591 ; Henry v. Morgan, 2 Binney,
497.

It results from the same princi-
ple that notice to an officer or di-
rector of a banking or railway
company, will not operate as no-
tice to the body corporate, unless
he is acting for the corporation
when he receives the notice, or it
is part of his official duty to inform
the board ; Winchester v. The
Railroad, 4 Maryland, 221 ; The
U. S. General Ins. Co. v. The U.
S. Ins. Co., 11 Maryland, 51t ; 3
Maryland Ch. 381; The Fulton
Bankv. The New York and Sharon
Coal Go, 4 Paige, 12T ; The North
River Bank v. Aymar, 3 Hill,
262; The Farmers' Bank v.
Payne, 25 Conn. 444 ; The City
Bank v. Bernard, 1 Hall, TO.
Hence, information received by
a president or director in his pri-
vate capacity, or derived from ru-
mor, or through channels which
are accessible to all, will not have
the effect of notice, unless he is
shown to have communicated it to
the other directors in such a way
as to render it incumbent on them
to take cognizance of it in the col-
lective capacity in which they
represent the corporation ; The
General Ins. Co. v. The United
States Ins. Co.; Winchester v.
The Railroad.

It has accordingly been held in
numerous instances, that know-
ledge acquired by an officer or di-
rector of a bank or a railway com-
pany in the course of his own af-
fairs, is not notice to the company,
unless it appears that the business
in which it is alleged to have
operated as notice was transacted
by him individually, or as one of
the board, and that such informa-
tion was present to his mind and
should have, influenced his con-
duct. See The Fulton Bank v.
The New York and Sharon Canal
Co., 4 Paige, 121 ; Miller v. The
Illinois Central R. R. Co., 24
Barb. 312; The Seneca County
Bank v. Neass, 5 Denio, 33*1. So
the same person may be a director
in two corporations, and conver-
sant with the affairs of both, with-
out rendering what he learns in
acting for either of them notice to
the other; The Fulton Bank v.
The New York and Sharon Canal
Co., ante, 1 40.

Conversely, proof that the agent
of the purchaser is an officer or
director of a banking corporation,
will not charge the principal with
notice of equities growing out of
an antecedent transaction between
the vendor and the bank ; Dunlap
V. Wilson, 32 Illinois, 511.

In like manner, the knowledge
which a director of a bank acquires
by reading an advertisement of the
dissolution of a firm, will not oper-
ate as notice to the bank, or pre-
clude it from taking a new note in
the firm name from one of the co-
partners. Cowen, J., said, that no-
tice to a director who had a general
authority to renew, or who had re-

172

NOTICE.

newed the note in question, might
have been notice, and so perhaps,
if notice had been given to him for
the express purpose of being com-
municated to the board. But as
he liad no reason to suppose, when
he was informed of the dissolution,
that it was in any way material to
the bank, or that the bank could
in any way be prejudiced by it,
there was no presumption on the
ground of duty or interest that lie
communicated his knowledge to
the bank.

The rule that notice in one trans-
action is not notice in another, ap-
• plies whether the information is
given to the agent or the principal,
but it is true in both cases, that
if one has such knowledge, as to
render his conduct fraudulent, it
is immaterial when it was ac-
quired, ante,^ 155.

The application of these princi-
ples is sometimes a matter of
much nicety. In The Fulton Bank
V. The New York and Sharon
Canal Co., 4 Paige, 12'7, a bill
was filed by the bank to restrain
the canal company from recovering
certain moneys which had been de-
posited with the complainants. It
appeared from the allegata and
proofs that Cheesebrough was
president and Brown a director of
the Fulton Bank, and Brown was
president, and Cheesebrough, a di-
rector of the New York and Sha-
ron Canal Company, and both
were also members of the com-
mittee which had charge of the
finances of the Canal Company.
At a meeting of the committee, on
the Yth of September, at which
Brown and Cheesebrough were

present, it was agreed tliat the
money of the Canal Company
should be deposited in the Fulton
Bank, and remain there subject
only to be drawn out by the
finance committee. It was accord-
ingly deposited in tlie bank, and
credited to the canal company;
but Brown left his signature, " G.
W. Brown, Pres't," with the bank,
as the signature upon whicli the
money was to be drawn. He sub-
sequently drew the money without
the consent of the committee, and
it was lost tlirough his insolvency.
The chancellor said that the agree-
ment by Cheesebrough and Brown
that the money should be deposited
and remain on interest, exceeded
their authority as president and
director of the bank, and the only
use the defendants could make of
the agreement, was to show that
the president of the bank knew
that it was not the intention of
the canal company that the money
should be drawn without the con-
sent of the finance committee.
Hence it became necessary to in-
quire whether the complainants
were chargeable with notice that
Brown had no right, to draw the
money from the bank, although he
left his signature in the book kept
for that purpose. If the complain-
ants were chargeable with such no-
tice, the payments were made in
their own wrong, and the canal
company was entitled to treat the
money as still in bank. " There
can be no actual notice to a corpo-
ration aggregate, except through
its agents or oflScers. The direc-
tors or trustees, when assembled
as a board, are the general agents,

I/E NEVE V. LE NEVE,

173

upon whom a notice may be served,
and which will be binding upon
their successors and the corpora-
tion. But notice to an individual
director, who has no duty to per-
form in relation to such notice,
cannot be considered a notice to
the corporation. The notice which
Brown and Cheesebrough had of
what took place at the meeting of
the seventh of September, was not
of itself legal notice to the bank
that the fund was placed under the
control of the committee, and that
Brown, although he left his signa-
ture, and apparentlj' had the con-
trol of the money the next morn-
ing, was not in fact authorized to
draw it from the bank. If Cheese-
brough had been authorized by
the bank, as their president and
agent, to agree to receive the
money on deposit, the agreement
made with him as such agent
would have been notice to the cor-
poration, although he neglected to
communicate the facts to the other
officers of the bank, or to the board
of directors. It is well settled that
notice to an agent of a party, whose
duty it is, as such agent, to act
upon the notice, or to communicate
the information to his principal, in
the proper discharge of his trust
as such agent, is legal notice to
the principal ; and this rule applies
to the agents of corporations as
well as others. From what took
place on the evening of the seventh
of September, Cheesebrough knew
that this fund was placed under
the control of the finance commit-
tee, and that Brown, as president
of the canal company, had no
right to draw it out of the bank.

But as there was nothing said or
done at the time to excite a sus-
picion that Brown would attempt
to practice a fraud, either upon
the complainants or the canal com-
panj', by attempting to draw the
money from the bank without au-
thority, it was not necessarj' for
Cheesebrough to communicate that
information to the tellers or other
officers of the bank; unless it be-
came his duty to act, in his ca-
pacit}- as president, in relation to
such deposit, from the fact of his
knowing that Brown was about to
withdraw the same wrongfully. It
appears by the testimony, that in
virtue of his office of president, he
had a general superintending con-
trol over the clerks, tellers, and
other officers of the bank. It was
his duty, therefore, to forbid their
paying anj' check which he knew
to be drawn improperly and with-
out authority, and if he should
neglect to discharge such a duty,
he would be personally liable to
the institution for his improper
conduct. If, therefore, Cheese-
brough was present in the bank
when the money was deposited,
and knew that Brown had left his
signature, as being authorized to
draw out the money in his own
name as president, it was his duty
to give notice to the tellers and
clerks of the facts which had come
to his knowledge the evening be-
fore, and to forbid them from pay-
ing out the money, without the
cOncuiTence of the finance commit-
tee, or the order of the directors
of the canal company. And if I
was satisfied that Cheesebrough
was present, and knew what took

174

NOTICE.

place in the bank at that time, or
■was informed thereof previous to
the actual paiyment of the money
to Brown, I should have no hesi-
tation in saying that the companies
were chargeable with notice of the
intended fraud, and that they were
bound to pay the money a second
time."

The distinction taken in this
case is refined, but not on that ac-
count necessarily less just. Brown's
knowledge was not notice to the
bank, unless he acted for the bank
subsequently in a way to make it
requisite that he should communi-
cate what he knew. His leaving
• his signature as that on which the
money was to be drawn, was not
such an act, because it was done
on behalf of the canal company,
and not of the bank. Had Cheese-
brough been present when the de-
posit was made in that form, or be-
come acquainted with it afterwards,
it would have been his duty as
president of the bank, to use the
knowledge, which he had acquired
as director of the canal company,
for the benefit of the bank, and to
prevent a fraud on the company.
But as the evidence on this head
was conflicting, the chancellor af-
firmed- the decree which had been
rendered in the court below.

It may be inferred from the lan-
guage of the chancellor, that if
Brown had been present at a meet-
ing of the directors of the bank,
when his authority to draw with-
out the sanction of the finance
committee was under considera-
tion, it would have been incum-
bent on him to inform his col-
leagues that he had no such power,

and they would have had notice
constructively whether the commu-
nication was or was not made. In
The Bank of the United States v.
Davis, 2 Hill, 452, ante, l69, a bill
of exchange was sent by the defend-
ant for discount to a director of
the plaintiff's bank, who fraudu-
lently procured the discount to be
made for himself, and received the
proceeds. It was held that the
bank was chargeable with notice
of the fraud, and could not re-
cover upon the bill. Nelson, C. J.,
said that it was no answer to say
that the director was not to be re-
garded as acting in his ofBeial ca-
pacity on behalf of the bank, but
for himself, while engaged in per-
petrating the fraud. It appeared
from the evidence, that if he was
acting for himself, he was also
acting for the bank. He was pres-
ent as one of the board of direc-
tors, engaged in the business of
consulting and adyising his asso-
ciates with respect to the character
of the paper presented at the time
for discount, and advised, and
doubtless recommended, in his
character as director, the bills in
question to the favorable notice of
the board. In so doing, he rep-
resented the bank and it was im-
material that he was also the de-
fendant's agent, or had a purpose
of his own.

The mere circumstance that the
president of a railway company,
other body corporate, is the grantor
in the deed by which thej' acquire
title, will not, it has been said, af-
fect them with notice of the equi-
ties to which the estate was sub-
ject to in his hands. It must, at

LE NEVE V, LE NEVE.

175

least, appear that he was present
at a meeting of the board when the
purchase was resolved on, or acted
on behalf of the corporation in
some other way during the course
of the transaction ; The La Farge
Ins. Co. Y. Bell, 22 Barb. 54.
Winchester v. Susquehanna Hall-
way Co., 4 Maryland, 221, 239.

Le Grand, C. J., said : " It is
undoubtedly true, as a proposition
of law, that the principal is affected
with the knowledge, and bound by
the acts of the agent, but this
principle can have no application
to a case in which the one party
does not act as agent, but avowedly
for himself and adversely to the
interests of the other. In the case
now under consideration, Winches-
ter did not profess, and in fact did
not represent the company." In The
La Farge Ins. Co. v. Bell, 22 Barb.
54, Emett J., said, " that if the
position of grantor as a director
could so far identify him with the
plaintiffs in any case, as to charge
them with notice of all the facts
with which he was personally ac-
quainted, it would not do so when
the facts concerned his own pri-
vate affairs, and the transaction
was one in which he was dealing
with the company in his own be-
half, and acting for himself and
against them."

In Weisser v. Dennison, 6 Sel-
den, a confidential clerk, who was
intrusted with his employer's bank
book, and took it habitually to the
bank for settlement, forged various
checks on the bank at different
times in his employer's name,
which were paid- The sums thus
obtained were small in comparison

with the total account for the
same period, and therefore, less
likely to excite suspicion. During
the interval, the bank book was
settled several times, the balance
struck, and the book returned with
the cancelled checks as vouchers
through the clerk, who abstracted
those which had been forged be-
fore handing the book to his prin-
cipal. It was contended that the
clerk's knowledge was notice to
his principal, and that the latter
must consequently be regarded as
having ratified the account by
failing to object in due season. It
was held by Allen, Justice, that,
inasmuch as the knowledge of the
agent was acquired in the course
of an act done fraudulently beyond
the scope of his employment, it did
not affect the principal, who could
not, on well settled principles, be
precluded by his acquiescence,
while ignorant. It was also said,
that there was no such duty on
his part to examine the vouchers
furnished bj' the bank, as would
render the omission to do so
negligence, or render it equivalent
to notice. On this head the de-
cision would seem questionable.

The doctrine that notice to an
agent is not notice to one for
whom he acts subsequently in a
different transaction, admits of an
exception where the information
acquired or communicated by the
agent amounts to knowledge, and
justifies the inference that the facts
were present to his mind, and
should have been communicated
to the principal. See Pritchell v.
Sessions, 10 Richardson's Law,
293 ; Williams v. Tatnall, 27 lUi-

176

NOTICE.

nois, 253. The case of The Distilled
Spirits, 11 Wallace, 356 ; JSovey v.
Blanchard, 13 New Hampshire,
145; Fatton v. The Ins. Co., 40
New Hampshire, 3'75 ; Williavis v.
Tatnall, 25 Hlinois, 553 ; Wiley v.
Knight, 21 Alabama, 336. It is
well settled that no one can justi-
fiably retain that which has been
acquired through a, suppressio veri,
or misrepresentation, however free
he may have been from participa-
tion in the fraud ; and there is no
clearer case for the application of
this rule, than where an agent buys
for his principal in a way to preju-
dice the title of one whom he
knows to be the rightful owner.
But this result will not follow, un-
less the proof of knowledge is
clear ; and it should not be inferred
from the mere circumstance that
the agent ought to have informed,
himself, because this would be to
found one presumption on another.
See Bunlap v. Wilson, 32 Illinois,

b\n.

In Norwood v. Dresser, 17 C.
B. 466, timber, which had been
sent to a factor for sale, was offered
by him as his own property, and
bought by a broker for the de-
fendant, with full knowledge that
it belonged to the plaintiff ; and it
was held that the broker's knowl-
edge was the knowledge of his
principal, although obtained in the
course of a prior transaction, and
the defendant could not set off a
debt due from the factor in an ac-
tion brought by the plaintiff for
the price. So the knowledge of an
attorney who issues an attachment
execution on a judgment, that the
property levied on is subject to a

trust, is notice to his client, al-
though the attorney acquired the
information before he was retained.

It was held in like manner, in
the case of The Distilled Spirits,
11 Wallace, 356, that the doctrine
that notice to the agent is notice
to the principal, applies not only
to knowledge acquired by the
agent in the particular transaction,
but to knowledge acquired by him
in a prior transaction, and present
to his mind at the time he is act-
ing as such agent, provided it be
of such a character as he may
communicate to his principal with-
out breach of professional confi-
dence.

Bradley, J., said, in delivering
judgment " in England, the doc-
trine now seems to be established,
that if the agent at the time of ef-
fecting a purchase, has knowledge
of any prior lien, trust, or fraud,
affecting the property, no matter
when he acquired such knowledge,
his principal is effected thereby.
If he acquire the knowledge when
he affects the purchase, no ques-
tion can arise as to his having it
at the time ; if he acquired pre-
vious to the purchase, the pre-
sumption that he still retains it,
and has it present to his mind,
will depend on the lapse of time,
and other circumstances. Knowl-
edge communicated to the princi-
pal himself, he is bound to recollect,
but he is not bound by knowledge
communicated to his agent, unless
it is present to the agent's mind at
the time of affecting the purchase.
Clear and satisfactory proof that
it was so present, seems to be the
only restriction required by the

LE NEVE V. LE NEVE.

177

English rule, as now understood.
With the qualification that the
agent is at liberty to communicate
his knowledge to his principal, it
appears to us to be a sound view
of the subject. The general rule
that the principal is bound by the
agent's knowledge, is based on the
principle of law, that it is the agent's
duty to communicate to his princi-
pal the knowledge which he has
respecting the subject-matter of
negotiation, and the presumption
that he will perform that duty.
When it is not the agent's duty to
communicate such knowledge, but
it would be unlawful for him to do
so : as, for example, when it has
been acquired confidentially as at-
torney for a former client in a prior
transaction, the reason of the rule
ceases, and in such a case an agent
would not be expected to do that
which would involve the betrayal
of professional confidence, and his
principal ought not to be bound
by his agent's secret and confiden-
tial information."

It has been said that the rule
that notice to the agent is notice
to the principal, depends on the-
presumption that the agent will
fiulfil his duty by informing the
principal, and does not hold good
where he is practicing a deception
on the latter, and interested in
concealing the truth. See The
Fulton Bank v. The New York &
Sharon Canal Co., 14 Paige,
127 ; Thompson v. Cartwright, 33
Beavan, 189. In the case last cited,
it was said to have been estab-
lished in Kennedy v. Green, 3
Mylne & Keen, 699, that if the
solicitor employed by the client,
VOL. II. — 12

was the actual perpetrator of the
fraud, it was reasonably certain that
he would not communicate that
fact to his client, and that con-
sequently the client could not be
treated as having had notice of
that fact ; and the same inference
may be drawn from the language
held in The Fulton Bank v. The
Canal Co., ante, 1T2. However
true this may be, where the agent is
acting for both parties, it does not
apply as against a third person
who is injured by the fraud ; and
the loss will then be thrown on
the principal, as having given oc-
casion for the wrong, by reposing
undue confidence in the agent,
a7ite. See Davis v. The Bank of
the United States, 2 Hill, 452;
Bank of New Milford v. The
Town of New Milford, 36 Con-
necticut, 93.

In the case last cited, one who
was at the same time treasurer of
a town, and cashier of a bank,
borrowed $3,000 from the funds
of the bank professedly for the
use of the town, and executed
a note to the bank for the
amount, as treasurer of tlie town.
It was held that his fraud as treas-
urer was known to him as cashier,
and was therefore the knowledge
of the bank, and that the town
was not liable on the note

To make the rule applicable,
the agent must be authorized to
represent the principal, as it re-
gards the matter in hand. One
who is delegated to perform a
ministerial act is not within the
rule ; nor will it be contended that
a clerk who is sent to learn the
price of a house, or when posses-

178

NOTICE.

sion can be given, is an agent in
such sense that what he is told
incidentally with regard to the
title, will be notice to the princi-
pal, although not made known.

In like manner the employment
of a solicitor to do a mere minis-
terial act, such as procuring the
execution of a deed, does not so
constitute him an agent as to affect
his client with constructive notice
of matters within the knowledge of
the solicitor; Wyllie v. Pollen,
32 Law Journal, Ch. 182.

And it has been held in numer-
ous instances, that notice to an
agent will not bind the principal
beyond the limits within which the
agent could bind the principal by
his acts ; Weisser v. Dennison, 6
Selden, 68. Accordingly, where
the power of an agent of an insu-
rance company' is limited to receiv-
ing applications for insurance, and
transmitting them to the company,
his knowledge that the premises
are erroneously described by the
insured, will not be imputed to
his principals, or preclude them
from relying on the misdescription
as a defence to an action for a loss.
See Wilson v. The Conway Fire
Insurance Company, 4 Rhode Is-
land, 141, 152; 5 American Lead-
ing Cases, 922 ; X Smith's Lead-
ing Cases, 865, 1 ed.

It would, also, appear that to
render the knowledge of an at-
torney the knowledge of his prin-
cipal, he must be an attorney in
fact. One who is asked for a
professional opinion is an adviser
rather than an agent. If an agent
who is employed to invest money,
or to conduct the negotiation

for an estate, buys with notice
that the premises belong in equity
and good conscience to a third
person, it is immaterial whether
his knowledge was acquired at the
time, or in the course of an antece-
dent transaction. In either aspect
the conduct of the agent is fraudu-
lent, and the principal cannot
take the property without being
responsible for the means through
which it was acquired. But the
case is obviously different where
an attorney who has been retained
to examine a title, conducts the
investigation in the usual course .
of business, without discovering a
break or flaw, and so informs his
client, without disclosing a fact
which he has learned incidentally
in examining the same title for
another party. Under these circum-
stances the purchase is not made
through the agent, nor does he
practice a fraud or deception on
the equitable owner. His failure
to disclose the truth may be wrong-
ful, or it may be dictated by a
sense of professional obligation to
the person for whom he was acting
when he obtained the information.
But there is nothing to affect the
conscience of the principal ; nor can
he be said to have constructive
notice of that which he would not
have ascertained if he had exam-
ined the title instead of employ-
ing an attorney.

In Basset v. Avery, 15 Ohio, N.
S. 299, the plaintiff before purcha-
sing a promissory note, sent one
Starr to inquire of the makers
whether it was good. They re-
plied that it was not ; but Starr
fraudulently informed the plain-

LE NEVE V . LB NEVE.

179

tiff that the instrument would be
paid, and he thereupon gave
value for it in good faith. It was
held that this was not notice to
the plaintiff. White, Justice, said,
that " to charge the plaintiff with
declarations made to Starr, it
should appear that he derived
title through Star's agency, or at
least that Star was employed at the
time in the discharge of a duty
which the plaintiff owed to the
makers of the note. The plaintiff
bought from the paj'ee, and not
through Starr, or of the makers of
the instrument, and was under no
obligation to inquire of them."

It maj' be observed of this decis-
ion, that one who sends to inquire,
makes the messenger his agent for
the purpose of bringing back the re-
ply, at all events so far as it is re-
sponsive to the inquirjf. Sucli a
messenger is not less an agent than
if he were sent for a document or
chattel. Moreover, it might well
have been that the makers of the
note would have given the infor-
mation directly to the plaintiff, if
the question had not been put to
them through Starr.

One who does not employ an
agent may, nevertheless, be affected
constructively with notice of what
the agent would have learned if
employed. In Kennedy v. Green,
3 Mylne & Keen, 699, a solicitor
fraudulently induced his client to
assign a mortgage. The defend-
ant subsequently bought the mort-
gage from the solicitor, without
employing an attorney or convey-
ancer to examine the title. Lord
Brougham held that he did not
thereby make the solicitor his at-

torney, but that he was neverthe-
less chargeable with notice of
whatever a competent attorney
would have observed, if employed.
And as there were circumstances
which would have led a man of
business to a discovery of the
fraud, the plaintiff could not be
regarded as a bona fide purchaser.
To hold otherwise, would be to
enable him to profit by the neglect
of a usual and proper precaution.

The doctrine that notice to the
agent is notice to the principal
would seem to involve two princi-
ples, which though cognate, are yet
different ; one that the agent is
identical with the principal for all
the purposes of the agency; the
other that the principal cannot
acquire a title through a wrong
done by the agent. By virtue of
the first, all that is brought to the
knowledge of the agent while act-
ing in the course of his employ-
ment, is constructively known to
the principal, but nothing that he
learns outside of that emploj'ment
or in acting for third persons.
The second extends far enough to
include every case, where the prin-
cipal claims through an act which
the agent knew to be injurious,
whether the knowledge of the lat-
ter was obtained while acting for
the principal, or in the course of a
distinct employment. This dis-
tinction may perhaps serve to re-
concile cases that are apparently at
variance.

If the view taken in this note
is correct, the doctrine that notice
to an agent is notice to the princi-
pal may be reduced to three heads ;
1. Where the agent receives actual

180

NOTICE.

notice in the course of the transac-
tion ; 2. Where he has construc-
tive notice of that which the prin-
cipal would have learned if he had
examined the title in the usual
course of business ; 3, Where the
purchase is made through an agent
who has knowledge which would
render his conduct fraudulent if he
bought for himself. The first two
result from the doctrine of notice,
the last is a branch of the rule that
a principal cannot acquire title
through the fraud of his agent.

Notice prom possession. It
is held both in England and the
United States, that actual and
unequivocal possession is notice,
not so much because it justifies
an inference that the purchaser is
aware of the title of the occupant,
as because it is incumbent on one
who is about to purchase real es-
tate, to ascertain by whom and in
what right it is held or occupied ;
Sears v. Munson, 23 Iowa, 483;
Peterman v. Oatz^ 5 Oilman, 686 •
Weld V. Madden, 2 Clifford, 584 \
Phillips V. Coslley, 40 Alabama,
486 ; and the neglect of this duty
is one of the defaults which unex-
plained are equivalent to notice ;
M'Kenzie v. Perrill, 65 Ohio,
162 ; Perkins v. Swank, 43 Mis-
sissippi, 849 ; The Bank v. Flagg,
3 Barb. Ch. 31Y ; Morrison v.
March, 4 Minn. 422 ; Warren v.
Richmond, 53 Illinois, 52 ; Glad-
well V. Spaugh, 36 Indiana, 319 ;
M'Kenzie v. Perrill, 15 Ohio, N.
S. 162 ; Hubbard Y. Lord, 20 Iowa,
159 ; Sailor v. Hertzog, 1 Whar-
ton, 269 ; Wood v. Far mere, 1
Watts, 385; Biehl v. Page, 2
Green, Ch. 143 ; Bailey v. White,

13 Texas, 114 ; Baldwin v. John-
son, Saxton, 441 ; JDisbrow v.
Jones, Harrington, Ch. 48 ; Bay.
nard v. Norris, 5 Gill, 538 ; Web-
ber V. Taylor, 2 Jones, Bq. 9 ;
Ringgold v. Bryan, 3 Maryland,
Ch. 488 ; Davis v. Hopkins, 15
Illinois, 519; Keys v. Test, 33 Id.
316 ; Reeves v. Ay res, 38 Id. 418
Williams v. Brown, 14 Id. 205
Preitymanr. Wilkey, 19 Id. 241
Cabeen v. Breckenride, 48 Id. 91
Landes v. Brant, 10 Howard, 348
Bailey v. Richardson, 15 English
Law and Equity, 218. It follows
that where creditors can be post-
poned by notice, possession may be
notice to a judgment creditor, and
preclude him from obtaining a lien
on the equitable estate or interest
of the occupant ; Wallace v. Orid-
ley, 36 Illinois, 523, ante ; M'Eee-
kine v. Haskins, 23 Maine, 230.

It is well settled tliat to be effec-
tual as notice, possession must be
sufficiently distinct and unequivo-
cal to put the purchaser on his
guard ; Boyce v. Williams, 48
Illinois, 3*11; Butler v. Stevens,
26 Maine, 484 ; Bell v. Twilight, 2
Foster, 50; Wright v. Wood, 11
Harris, 130 ; Coleman v. Barklew,
3 Dutcher, 35*1 ; and of such a
nature, that if continued adversely
for twenty-one years, it would be
a bar under the statute of limita-
tions ; Martin v. Jackson, 3 Casey,
504. See Williams v. Sprigg, 6
Ohio, N. S. 585; Mehan v. Wil-
liams, 12 Wright, 258. Or, as it is
elsewhere expressed, " possession
to be notice must be open, visible,
exclusive and unambiguous, not
liable to be misunderstood or mis-
construed -j^'Elyw. Wilcox, 20 Wis. ,

LE NEVE V. LB NEVE.

181

cousin, 530 ; Patten v. Moore, 32
N. H. 384. • A mixed or ambigu-
ous possession does not meet the
requirements of this rule ; Bell v.
Twilight, 2 Foster, 500 ; Bush v.
Golden, IT Conn. 594. The use
of a vacant unimproved lot by the
occupants of an adjacent dwelling,
for drying clothes, or other pur-
poses of a like kind, is not notice
that they have or assert an equita-
ble ownership in the lot; Williams
V. Sprigg. So where the defend-
ant went into possession under a
parol agreement for the purchase
of part of a tract of land, and
erected a mill and outbuildings for
bis workmen, but the boundary
was not defined, and there were
buildings of the same kind on the
unsold portion of the tract, which
were used for like purposes by the
vendor, so that the whole would
strike the eye as one establishment,
it was held that the defendant's
possession did not operate as no-
tice to a purchaser at a sheriff's
sale under an execution against
the vendor ; Billington v. Welsh,
5 Binney, 132.

The same point was determined
in Mehan v. Williams. " What
makes inquiry a duty," said
Strong, J., " is such a visible state
of things as is inconsistent with
a perfect right in him who pro-
poses to sell. Holmes v. Stout, 3
Green, Ch. 492, and 2 Stockton,
419 ; M'Mechany. Griffing,BPick.
149 ; Haurick v. Powell, 9 Ala-
bama, 409.

" These, and many other cases
show that the possession which
aflects a purchaser with notice,
must be clear, open, notorious and

unequivocal, and that a possession
or act done upon the laud, which
may lead to an inference of trespass
as well as of title, is insufHcient."

In like manner, where one own-
ing and in possession of part of a
lot of land not divided by any par-
tition fence, purchased the residue,
consisting principally of wood-
land, and which had not been oc-
cupied by the grantor, repaired the
fence around the lot, pastured cat-
tle in it, sold trees from the part
purchased, and removed an old
hovel standing in the same part,
it was held that these acts did
not constitute such an occupancy
as would operate as notice to a
subsequent purchaser ; IP Mechan
V. Griffing, 3 Pick. 149. In this
instance, however, the first pur-
chaser owned an undivided moiety
of the lot as tenant in common
with the vendor, before acquiring
title to the whole, and more was
consequently requisite to show that
he held adversely to the latter,
than would be necessary in the
case of a stranger.

A manifest and continuing
change of occupancy, which would
lead an observer to infer that there
had been a change or transfer of
title, may, however, operate as
notice, although the party does -not
reside on the premises. In Krider
V. Lafferty, 1 Wharton, 303, a
purchaser under an unregistered
deed took possession of the
ground, planted it with willows,
for the purpose of supplying him-
self with materials in his trade
as a basket maker, and continued
to occupy it, growing willows upon
it, and cutting them every year at

182

NOTICE.

the proper season. The court
held, that such a visible change in
the appearance and occupation of
the ground, was sufHciently dis-
tinct and notorious to put a subse-
quent purchaser upon inquiry as
to the occupant's title, and being
sufficient for that purpose was
good notice in equity. See Smith
V. Low, 1 Atkins, 490.

Paving the sidewalk of a town
lot, and putting up a placard offer-
ing the premises for sale, and re-
ferring applicants to an agent, has
also been held sufficient notice of
ownership to put subsequent pur-
chasers on their guard ; Hatch v.
Bigelow, 39 Illinois, 136. But
cutting timber from time to time
by one who does not reside on
or continuously occupy the land,
is not such a possession as will
put a purchaser on inquiry, or
operate as notice ; Holmes v. Stout,
3 Green, Ch. 492 ; 2 Stockton's Ch.
419. A similar decision was made
in Meehan v. Williams, 12 Wright,
238, where Strong, J., said, that " to
be effectual as notice, possession
must be occupancy ; something
more than occasional entries."
For a like reason, where the re-
ceipt of rent is relied on as evi-
dence of a constructive possession,
and consequently of notice, it
must appear to have been received
adversely to the holder of the
legal title and not as his agent ;
Martin v. Jackson, 3 Casey, 506-9.

While the authorities agree on
these points, there is much differ-
ence of opinion as to whether the'
presumption of notice is absolute
or capable of being rebutted. It
has been held in numerous in-

stances that possession is construc-
tive notice, or in other words, a
legal inference which will be drawn
without regard to circumstances.
See Cheslerman v. Gardner, 5
Johnson, Ch. R. 39 ; Governeur
V. Lynch, 2 Paige, 300 ; Grim-
stone V. Carter, 3 Id. 421 ; Krider
V. Lafferty, 1 Wharton, 304
Lightner v. Mooney, 10 Watts,
412 ; Sailor v. Hertzog, 4 Whar-
ton, 259 ; M' Gullough v. Cowher,
5 W. & S. 42T ; Jacques v. Weeks.
"T Watts, 261 ; Lewis y. Bradford.
10 Id. 6T ; Eerr v. Lay, 2 Harris,
112; Macon v. Sheppard, 2
Humphreys, 335 ; Hardy v. Sum-
mers, 10 Gill & Johnson, 316 ;
Hackwith v. Damron, 1 Monroe,
237 ; Knox v. Thompson, 1 Lit-
tle, 350 ; Buck v. Halloway, 2 J.
J. Marshall, 118 ; Miller v.
Schackelford, 4 Dana, 258 ; Burt
V. Cassity, 12 Alabama, 734
Scroggins v. Dougal, 8 Id. 382
Brice v. Brice, 5 Barb. 535
Dixon V. Doe, 1 Smedes & Mar-
shall, 70 ; Wilty v. Hightower, 6
Id. 345; ArgenbrightY. Campbell,
3 Henning & Munf. 144 ; John
ston V. Glancy, 4 Blackford, 94
Webster v. Maddox, 6 Maine, 256
Knox V. Plum,mer, 7 Id. 464
McLaughlin v. Shepherd, 32 Id,
143; Hanly v. Morse, lb. 287
Tuttle V. Jackson, 6 Wend. 213
Parks V. Jackson, 11 Id. 442
Jenkins v. Bodley, Smedes &
Marshall, Ch. 338.

The opinion, nevertheless, seems
to be that although evidence that
the complainant was in possession
of the premises, casts the burden
of proof on the purchaser of show-
ing why he did not ascertain from

LE NEVE V. LE NEVE.

183

him by -what right he held, it is
still admissible to show that the
circumstances were such as to
justify the purchaser in assuming
that the possession was held under
the vendor, and consistent with his
right to convey ; Williamson v.
Brown, 15 New York. An admis-
sion to that effect under the occu-
pant's hand and seal, would clearly
excuse a failure to inquire of him,
and no admission can well be more
direct than the acceptance of a
lease wliich the lessor has in his
possession, and exhibits to the pur-
chaser ; Leach v. Ansiacher, 5 P.
F. Smith, 85. Leach v. Ansbacher,
5 P. r. Smith, 85. " When, said
Thompson, J., " the purchaser
knows that the occupant is in
possession under a lease, the
knowledge of the lease dispenses
with the inquiry how the posses-
sion is held. This knowledge the
purchaser had, and of the very
terms of the lease. That was
enough for him. He was not bound
to inquire of the tenant if the lease
was fair or fraudulent, or whether
there was a trust notwithstanding ;
Sugden on Vendors, 3391."

In like manner, where one who
was about to lend money on mort-
gage knew that the occupant of
the mortgaged premises had en-
tered as a tenant on sufferance, and
still bore that relation on the pre-
vious day, it was held not to be in-
cumbent on him to inquire of the
occupant, although the latter had
in fact received a conveyance
from the mortgagor on the morn-
ing of that day. It was said to
be immaterial that the mortgagor
spoke of the deed, because he at

the same time declared that it had
not been delivered, and corrobo-
rated his assertion by the produc-
tion of the instrument ; Rogers v.
Jones, 8 New Hampshire, 264, ante.
For a like reason where the oc-
cupant's possession is consistent
with his title as disclosed of re-
cord, he will not be permitted to
rely on it as notice of another and
different title to the injury of a
purchaser who buys on the faith
of the recorded title ; Great Falls
Go. V. Wooster, 15 N. H. 812. See
Smith V. Yule, 31 California, 186 ;
Woods V. Farmere, 1 Watts, 388.
Hence, where a mortgagee went
into possession of the mortgaged
premises under a parol sale by the
mortgagor, the court considered
that it was not notice to a subse-
quent purchaser, because the latter
might reasonably infer that he held
under the mortgage, and not by
virtue of the unrecorded contract ;
Plumer v. Robertson, 6 S. & R.
184. Tilghman, C. J., said, that
where " the land is in possession
of a third person, a prudent man
will not purchase without making
inquiry into the title of the occu-
pant, but where the person who is
in possession has placed upon re-
cord a title consistent with that
possession, it may well be taken
for granted that he holds under
the recorded title ; especially in
this commonwealth, where every
interest affecting the title to land
may and ought to be recorded."

It was declared in like manner in
Woods V. Farmere, that " in Penn-
sylvania every written title may be
registered ; and where an occupant
announces but one of his titles, he

18-1

NOTICE.

does an act which for its tendency
to mislead ought to postpone the
other. By exhibiting a convey-
ance to which, by his own showing,
his possession may be referred, he
does what he can to turn a pur-
chaser from the direct path of
inquiry."

The principle is nearly, if not
quite the same, where one who has
executed an absolute deed relies
on his continuance in possession
as notice of an unrecorded defeas-
ance, or that the title is subject to
a resulting trust. Such an instru-
ment is an unequivocal declaration
that the grantor has parted with
his right, title and interest, and
that third persons will be safe in
buying from the grantee. A pur-
chaser should not, under these
circumstances, be required to look
behind the deed for an equity
which the parties have in effect
concealed. The presumption in
every such instance is, that the
grantor remains in possession as a
tenant at sufferance ; The New
York Life Ins. Go. v. Cutler, 3
Sandford, 176; and if this is open
to rebuttal as between the parties,
it should be conclusive in favor of
a purchaser who has no actual
notice.

The case is, if possible, still
stronger when the deed is acknowl-
edged and registered, while the
registry contains nothing to indi-
cate that the grantor's interest
subsists despite the conveyance ;
Bloomer y. Henderson, 8 Micliigan,
395. If a loss ensues, it should
obviously be thrown on the gran-
tor, who has contributed to mislead
the purchaser ; Scott v. Gallagher,

14 S. & R. 833, 334 ; Newhall v.
Pierce, 5 Pick. 449 ; Wood v. Far-
mere, 1 Watts, 382.

So in Jacques v. Weeks, 7
Watts, 261-287, Kennedy, Jus-
tice, said : " That if one who hav-
ing executed a deed and suffered
it to be recorded, omits to record
an accompanying defeasance and
relies on his remaining in posses-
sion as notice, may justly be re-
proached with negligence, such a
charge cannot be made where the
equity arises from the nature of
the consideration as a loan, or
from an oral promise to reconvey
on receiving back the price, and is
consequently insusceptible of re-
gistration. In The Metropolitan
Bank v. Godfrey, 23 Illinois, 579,
607, the grantor's possession was
in like manner held to be notice
that an absolute deed was a security
for a debt, and consequently sub-
ject to a right of redemption ; and
the same point was decided in
Wright v. Bate.^, 13 Vermont, 341.

It was held with less reason in
Grimstone v. Garter, 3 Paige, 421,
439, that where an absolute con-
veyance which has been duly
acknowledged and registered, is
attended with an unregistered
agreement in writing to reconvey,
which in fact renders it a mort-
gage, the grantor has a mere
equity which is not within the
recording acts, and will not there-
fore be precluded from relying on
his continuance in possession as
notice to a purchaser from the
grantee.

It has, notwithstanding, been
held in other instances, tliat an ab-
solute deed divests the grantor not

LB NEVE V. LE NEVE.

185

only of his legal title, but of the
right of possession, and that when
such a grantor is found in the ex-
clusive occupancy of the premises
after the delivery of the deed, a
purchaser is not entitled to " give
controlling prominence to the legal
effect of the deed," in disregard of
the other " notorious prominent
antagonistic fact," that the grantor
is in possession, and uses the land
as if he had not conveyed, and if
the purchaser chooses to rely on
inference, instead of reducing the
matter to certainty by inquiry, he
must submit to the loss, if he is
deceived ; Pell v. M'Elroy, 36
Cal. 268 ; Hopkins v. Garrard, 4
B. Monroe, supra; Grimstone v.
Carter, 3 Paige ; Russell v. Swa-
zey, 22 Michigan, 236.

The grantor's continuance in
possession, may, agreeably to this
view, be notice that the deed is in
effect a mortgage, and subject to
a right of redemption ; Jacques v.
Weeks, T Watts, 261 ; Wright V.
Bates, 13 Vermont, 341 ; Grimstone
V. Carter; or that the premises
have been mortgaged or recon-
veyed to him as a security for the
purchase money ; 31'Kicknie v.
Easkins, 23 Maine, 230 ; Webster
V. Maddox, 6 Id. 256 ; although
such a conclusion will not be drawn
unless his possession is exclusive,
nor when the grantee enters, and
both dwell together on the premi-
ses ; Butler v. Storms, 26 Maine,
484.

It was held in like manner, in
Hood V. Fahnestock, 1 Barr, 170,
that where a grantor who conveys
in fraud of his creditors, remains
in possession through his tenants,

a purchaser from the grantee is
chargeable with notice of the fraud ;
and the same point was determined
in Roberts v. Anderson, 3 Johnson
Ch. So where the owner of a mill,
which was supplied with water by
a race passing through an adjacent
meadow, which also belonged to
him, conve}'ed the meadow without
reservation, but still continued to
use the mill race; these circum-
stances were held to be notice to
a subsequent purchaser of an equit-
able right on his part to the race
in the nature of an easement ;
Randall v. Silverthorn, 4 Barr,
1Y3.

In Randall v. Silverthorn, 4
Barr, US; Rogers v. Far mere
was said to determine that an
owner of distinct titles, who gives
record notice of one of them,
abandons as to subsequent pur-
chasers the other, of which his
possession would otherwise be im-
plied notice, unless, perhaps, where
the purchaser has actual notice.
It would seem that one who by
the acknowledgment and delivery
of a deed, enables the grantee to
register a title which is to all ap-
pearance absolute, should, for a like
reason, be precluded from relying
on his continuance of possession as
notice of an equity at variance with
the deed.

It has also been held that
possession taken or held by virtue
of one right, is not notice of
another, which the occupant ac-
quires subsequently, unless it is
attended by some change suffi-
ciently visible and notorious to
put purchasers on their guard ;
Matthews v. Demerrit, 22 Maine,

186

NOTICE.

315 ; M'Mehan v. Griffin, 3 Pick.
154 : " Suppose," said Shaw, C. J., '
in the case last cited, " tliat a
lessor should grant the land to the
lessee, he being in possession un-
der the lease, and the next day
should make a second grant to a
third person, who knew that the
lessee the daj"^ before was in posses-
sion under the lease, how does this
continued possession furnish evi-
dence of notice of his purchaser?
To imply notice in such case, is to
presume a fact without proof, and
against probability." Accordingly,
where two tenants in common
made partition of the land orally,
and one soon afterwards conveyed
his share to the other, who occu-
pied the premises as owner, it was
held that as he might have done
this by virtue of his right as a co-
tenant, it could not be regarded
as notice that he had acquired a
title to the whole; M'Mehan v.
Griffin. The same point may be
found in Kendall v. Lawrence, 22
Pick. 5'42 ; Williams v. Spriggs, 6
Ohio, N. S. 585, and Bush v. Gol-
den, 17 Conn. 594, 602.

The better opinion, nevertheless,
IS, that the possession of one who
enters without right, or by virtue
of a right which is consistent with
the vendor's right to convey, is
notice of a title subsequently ac-
quired, unless it appears that the
nature of such previous possession
was known to the purchaser, and
put him off his guard ; Matthews v.
Demerritt, 22 Maine, 312. Such
a conclusion is entirely consistent
with the doctrine of Sogers v.
Jones, 8 New Hampshii'e, 264 ;
ante, 183.

It is clear that possession will
not cease to be efl'ectual as notice,
because another title is devised to
the occupant, or cast upon him by
the law, and a subsequent pur-
chaser, who neglects to inquire
under such circumstances, takes
the risk; Woods v. Farmere, 1
Watts, 382. In Woods v. Farmere,
a son entered under a parol sale
from his father. Judgment was
subsequently obtained against the
latter, who died, leaving the premi-
ses to his son by will, and it was
held that a purchaser under the
judgment had notice of the son's
equity, although the latter had by
proving the will indicated that he
claimed as devisee, and was conse-
quently bound by the judgment.

To render possession notice, it
must exist at the time of the sale,
and it is not incumbent on a pur-
chaser to inquire as to the title of
a prior occupant who has aban-
doned the premises ; Eewes v.
Wiswell, 8 Maine, 94 ; Boggs v.
Varner, 6 W. & S. 414 ; Meehan
V. Willams, 12 Wright, 238. "All
the authorities agree," said Strong,
Justice, in the case last cited, "that
possession is not notice except
during its continuance, and even
when the vendor is out of posses-
sion, the vendee is not bound to
take notice of the antecedent pos-
session of third persons."

The question was examined in
Williamson v. Brown, 15 New
York, 354, and the following con-
clusion reached : " Possession by a
third person under some previous
title, has frequently, but inaccu-
rately, been said to amount to con-
structive notice to a purchaser of

LB NEVE V. LE NEVE.

187

the nature and extent of such prior
right. Such a possession puts the
pvircliaser upon inquiry, and makes
it his duty to pursue his inquiries
with diligence, but is not abso-
lutely conclusive upon him. In
Hamburg v. Litchfield, 2 Mylne &
Keene, 629, when the question
arose, the Master of the Rolls said :
" It is true, that when a tenant is
in possession of the premises, a
purchaser has implied notice of the
nature of his title ; but if, at the
time of his purchase, the tenant in
possession is not the original les-
see, but merely holds under a de-
rivative lease, and has no knowl-
edge of the covenants contained
in the original lease, it has never
been considered that it was want
of due diligence in the purchaser,
which is to fix him with implied
notice, if he does not pursue his
inquiries through every derivative
lessee until he arrives at the per-
son entitled to the original lease,
which can alone convey to him in-
formation of the covenants."

•' This doctrine is confirmed by
the language of Judge Story, in
Flagg v. Mann et al., 2 Sumner,
554. He says : " I admit, that the rule
in equity seems to be, that where a
tenant or other person is in posses-
sion of the estate at the time of
the purchase, the purchaser is put
upon inquiry as to the title ; and
if he does not inquire, he is bound
in the same manner as if he had
inquired, and had positive notice
of the title of the party in posses-
sion."

It is still further confirmed by
the case of Rogers v. Jones, 8 N.
Hamp. 264. The language of Par-

ker, J., in that case, is very em-
phatic. He says : " To say that he
(the purchaser) was put upon in-
quiry, and that having made all
due investigation, without obtain-
any knowledge of title, he was
still chargeable with notice of a
deed, if one did really exist, would
be absurd ;" Daniels v. Davidson,
16 Vesey, 253 ; 17 Id. 433; Kerr
V. Day, 2 Harris, 112."

It results from what is thus
said, and would seem to be clear
on principle, that the presumption
of notice arising from possession
may be rebutted by proof that the
purchaser made an unsuccessful
effort to ascertain the truth by in-
quiring of the occupant ; because
nothing more should be required in
any such case, than the use of such
means of information as are acces-
sible with due diligence, in the
usual course of bXisiness ; William-
son V. Brown, 15 New York, 354,
361.

The weight of authority seems
to be, that the possession of a
tenant is notice not only of the
lease, but of an equitjr arising
under a collateral agreement with
the landlord ; Knight v. Bowyer,
23 Beavan, 609, 641. Bell, J., said,
in Z'errv. Day, 2 Harris, 112, "that
where a tenant for years agrees to
purchase, his possession, though
under the lease, is notice of his
equitable interest as purchaser, to
a subsequent purchaser, who is
bound to inquire and inform himself
of all the contents of the lease and
the covenants contained in it, as
well as of all the estates and in-
terests claimed by the tenant."
This opinion was based on the au-

183

NOTICE.

thority of Taylor v. Hibbert, 2
Vesey, 43'r ; 17 Vesey, 433, where
Lord Bldon observed : " The ten-
ant, being in possession under a
lease, with an agreement in his
poeljet to become the purchaser,
these circumstances altogether
give him an equity repelling the
claim of a subsequent purchaser,
who made no inquiry as to the
nature of his possession." The
point did not, however, arise in
Kerr v. Day, because the agree-
ment to purchase was embodied in
thfe lease.

It is a disputed question, whether
the effect of possession as notice
is limited to the title of the occu-
pant, or extends to that of the per-
son under whom he holds. Agreea-
bly to the former view, the pos-
session of a tenant is not notice
of the landlord's title. " Knowl-
edge of possession," said Sergeant,
J,, in Jacques v. Weeks, t Watts,
261, 2T2, "has not the effect of
visiting the purchaser with notice
of every fact and circumstance
which he might have learned by
making inquiry of the possessor ;
and if we recur to first principles,
it would seem that the utmost that
could fairly be implied from the
possession bj^ another person than
tlie grantor, is that such possessor
has some claim or title to the land,
and therefore the purchaser, gen-
erally speaking, is to be considered
as taking subject to such claim or
title." The same view was taken
in Flagg v. Mann, 2 Sumner, 486,
551, and Beattie v. Beatlie, 21 Mis-
souri, 313; while it was said in
Birnhari v. Greenshields, 9 Moore
P. C. C. 36 ; 28 English Law &

Eq. 11, that " there is not only an
entire absence of authority for the
idea that a purchaser who omits
to inquire into the title of an oc-
cupier of land, will be afi'ected
with notice of other equities than
those of the occupier himself, but
that whatever authority there is,
goes directly to negative such a
proposition." In Vesey v. Parker,
23 Maine, 180, it was decided that
the attornment of the grantor's
tenants did not supply the want
of registry, because there was no
visible change of possession to in-
dicate that there had been a change
of title, which necessarily implifes
that the purchaser was not bound
to inquire of the tenant.

The cases in Pennsylvania and
some of the other States, adopt
the more stringent rule, that it is
the duty of the purchaser to in-
quire of the person in possession
of the premises, and ascertain by
what right he holds, and that the
purchaser will consequently, where
such occupant is a tenant, be
charged with notice of the land-
lord's title; Dickey v. Lyon, 19
Iowa, 544 ; Nelson v. Wade, 21 Id.
49; O'Rourke v. O'Connor, 39
California, 442 ; Kerr v. Day, 20
Harris, 112; Wright v. Wood, 11
Id. 130 ; Sailor v. Hertzog, 4
Wharton, 259 ; Hood v. Fahnes-
tock, 1 Barr, 470 ; Sergeant v
Ingersoll, 3 Harris, 343, 348 ; The
Bank v. Flagg, 3 Barb. Ch. 317 ;
Pittman v. Gaty, 5 Gilman, 186 !
Morrison v. March, 4 Minnesota,
422. In The Bank v. Godfrey, 23
Illinois, 607, one who had executed
an absolute deed, remained in ac-
tual possession of part of the land,

LE NEVE V. LE NEVE.

189

and held the rest through his ten-
ants, and it was held, that a sub-
sequent purchaser had constructive
notice that the deed was in fact a
mortgage.

It seems to be established in
England, under the recent course
of decision, that a landlord hold-
ing through his tenant, is an oc-
cupant in the sense of Birnhart v.
Greenshields ; and a purchaser who
knows that the rent of the premises
which he is about to buy is paid to
a third person, is thereby aflected
with notice of the equities of
such person ; Knight v. Bowyer,
23 Beavan, 609 ; 2 De Gex &
Jones, 421, ante. So knowledge
that the land is not in the possession
of the vendor, will render it incum-
bent on the purchaser to inquire
of the persons who are in pos-
session, and fix him with notice of
all that he would have ascertained
had the inquiry been made. But
it does not follow, that one who
has no reason to suppose that the
vendor is not in actual or construc-
tive possession, will be charged
with constructive notice of the
equity of a third person by a
failure to inquire of the tenant.

Notice from title papers.
It is thoroughly well established
that a purchaser will have con-
structive notice of everything
which appears in the deeds or in-
struments which prove and consti-
tute the title, and is of such a nature
that if brought directly to his
knowledge it would be actual no-
tice. This is the more obvious
because the right of a purchaser
cannot go beyond his title, and
whatever appears on the face of

the title papers, forms an integral
part of the title itself; Neale v.
Hagthrop, .3 Bland, 531, 586 ; ffag-
throp V. Hook's Administrators, 1
Gill & J. 270 ; Oliver v. Piatt, 3
Howard, 333 ; Mason v. Fayne,
Walker's Ch. 459 ; Johnston v.
Gwathmey, 4 Littell, 311 ; Christ-
mas V. Mitchell, 3 Iredell's Eq.
535 ; Sigourney v. Mann, 1 Conn.
324 ; Baker v. Mather, 25 Michi-
gan, 51 ; Kerr v. Kitchen, 5 Harris,
433 ; Brown v. Eastmaii, 11 New
Hampshire, 588 ; BurrinsY. Rouel-
hac, 2 Bush, 89 ; Campbell v.
Roach, 45 Alabama, 667. Such
notice, therefore, is of the most
conclusive nature, and insuscepti-
ble of being explained away or re-
butted ; Nelson v. Allen, 1 Ye'rger,
360; Johnson Y. Thwaett, 18 Ala-
bama, 741 ; Graves v. Graves, 1
A. K. Marshall, 165; Honore's
Executors v. Blakewell, 6 B. Mon-
roe, 67 ; Wailes v. Cooper, 24
Mississippi, 208 ; and when appear-
ing from the documents or papers
accompanying the answer, will
overrule a positive denial of notice
in the answer itself ; Neale v. Hag-
throp. The principle applies to
every instrument through which
the title of the purchaser is de-
duced, and which is essential to its
completeness. Hence when a title
cannot be made out without going
back to a devise, or it is a link
in the chain of title, a purchaser
will have notice of every clause
which affects the quality or dura-
tion of the estate, or through which
others have or may acquire a
right ; Harris v. Fly, 7 Paige,
421 ; M'AteerY. M' Mullen, 2 Barr,
32. In like manner where a deed

190

NOTICE,

which constitutes a link in the chain
of title leads directly to another
deed, or discloses facts and circum-
stances which are material to the
right conveyed, the purchaser will
be presumed to have ascertained
everything which would have be-
come known to him if he had fol-
lowed up the clue ; Walton v. Nash,
31 Mississippi, 324 ; see Greer v.
Knapj}, 6 Paige; The Howard
Ins. Co. V. Halsey, 4 Sanford, 42'7 ;
4 Selden, 211 ; Acer v. Westcott, 1
Lansing, 123. A i^urehaser who
buys part of a tract of land sub-
ject to an incumbrance which
covers the whole, must take notice
of a recital or description in his
deed which shows that another
portion of the same tract has been
conveyed to a third person, -and is
consequently not liable to contrib-
ute to the payment of the incum-
brance ; George v. Kent, 1 Allen,
16 ; Broiun v. Simons, 46 New
Hamp. 415 ; post, notes to Aldrich
V. Cooper. The rule is the same
with regard to public grants as
to those of individuals, and one
claiming a title originating in a
patent from the state, will be held
to have notice of every thing that
appears on the face of the patent ;
Bonner v. Ware, 10 Ohio, 465 ;
Brush V. Ware, 15 Peters, 93, 111 ;
Urkeit v. Corijell, 5 W. & S. 60.

The recital or description which
is relied on as notice, must be
in the course of the title, and it is
not enough that it appears col-
laterally from another instrument
between the same parties, but re-
lating to a different subject matter ;
Boggs v. Varner, 6 W. & S. 469.

In Boggs v. Varner, a convey-

ance was made to the defendant,
which described the premises as
bounded by a lot demised to John
Boggs. Boggs was at that time in
actual possession of the lot under
an unregistered deed from the same
grantor, but subsequently moved
away, and the lot was thereafter
conveyed to the defendant. It was
held that the description in the
former deed was not evidence that
the defendant had notice, even
when coupled with proof that he
was aware that Boggs had occu-
pied the lot. Sargeant, J., said,
" that to admit a recital in the title
papers to a different piece of prop-
erty was notice, and would lead to
dangerous consequences, because
it was impossible for anj^ one to
recollect the recitals in past con-
veyances. If such a rule were
adopted, no man could safely pur-
chase without a careful examina-
tion of every deed which he had at
any time received. A purchaser
was not bound to take notice of
anything in a deed which did not
affect what he was then buying, and
could not therefore reasonably be
expected to carry with him into a
subsequent transaction the memory
of that which had no significance
at the time. It was an established
principle that notice in one trans-
action would not charge the pur-
chaser in another, unless the cir-
cumstances were such as to justify
an inference of knowledge.

A reference in the conveyance to
the purchaser to a deed to a third
person may render it part of his
title, though originally collateral,
and he will then have notice not
only of the deed so referred to,

LE NEVE V. LE NEVE.

191

but of every fact which is a reason-
able aud necessary inference from
the facts which it sets forth ;
George v. Kent, 7 Allen, 16, ante ;
and it has been held seemingly
with less reason, that the same re-
sult will follow where one executes
a deed which refers to another deed
as containing a description of the
subject matter. See Oarson v.
Kriapp, 2 Paige, 35 ; The Howard
Ins. Go. V. Salsey, 4 Sanford, 421 ;
4 Selden, 271. In the Howard Ins.
Go. V. Halsey, part of a farm which
had been mortgaged to the appel-
lants was conveyed to one Wildes,
and the residue not long afterwards
to Hunt. The mortgagee, who was
ignorant of the conveyance to
Wildes, received a proportionate
share of the mortgage debt from
Hunt, and released the land which
had been conveyed to him from the
lien by an instrument under seal,
describing it " as part of the
premises conveyed by Hunt, the
releasee to William Paulding, by
deed bearing date February 25th,
and therein described as parcels 1,
3 and 4." The deed thus referred
to, bounded parcel No. 1, as "ad-
joining the land now or late of
George Wildes." Johnson, J.,
said : " This reference made the
deed referred to and the descrip-
tion of the premises thereby con-
veyed, as much notice of its con-
tents as if they were recited in the
release. The appellant, therefore,
had this state of facts presented to
him, that in a conveyance by a gran-
tee of the mortgagor of pkrt of the
mortgaged premises, another part
was described as not belonging to
the mortgagor, but as now or late

the property of George Wildes.
This was sufficient to arrest the at-
tention of the appellants and put
them on inquiry. It had been con-
tended during the argument that
the Paulding deed gave no infor-
mation that Wildes' land Was a
part of the mortgaged premises.
This objection was founded on the
erroneous idea that the appellants
could not locate the land described
in the release. This they obviousljr
could do, or were bound to be able
to do. They knew, or ought to have
known, that a strip of land lying
west of the premises convej'ed to
Hunt was not released, and yet
that strip was described in the deed
which had been incorporated with
the release by reference as belong-
ing not to the mortgagor, but to a
third person. It followed that al-
though the appellants had no actual
notice or knowledge of the convey-
ance to Wildes, yet they had con-
structive notice, and were therefore
precluded from throwing a burden
on him which ought to devolve
exclusively on the subsequent
grantee." A similar question arose
in Ouion v. Knapp, and was de-
termined in the same way.

These decisions may be thought
to carry a useful doctrine beyond
the reason on which it depends.
A purchaser may justly be pre-
sumed to have availed himself of
every accessible means of informa-
tion, because it is his duty, not
less than his interest, to ascertain
the validity of the title. But a
mortgagee, who is asked to release
a part of the mortgaged premises,
is under no obligation to inquiie
whether the mortgagor has con-

192

NOTICE.

veyed the residue in whole or in
part. If he were, it would be in-
cumbent on him to search the
record, which is confessedly not
the case ; Stuyvesant v. Hall, 2
Bab. Ch. 151 ; The Howard Ins.
Go. V. Halsey, 4 Selden, 211, 2t4 ;
post, notes to Aldrich v. Cooper,
There is consequently little ground
for charging him with notice of
the contents of a deed, of which he
has no actual knowledge, although
it is referred to in the release,
and still less for supposing that he
has notice of all that might be
deduced from a comparison of the
deed so referred to with the mort-
gage, or from reading it in view
of the mortgaged premises.

The acceptance or execution of
a deed is actual rather than
constructive notice of its con-
tents ; Hackwith v. Damrore, 1
Monroe, 237 ; Knouff v. Thomp-
son, 4 Harris, 357, 364 ; Kerr v.
Kitchen, 5 Id. 438 ; and may, there-
fore, extend to subsequent transac-
tions. See Ouion v. Knapp, 6
I'aige, 35. In Guiov v. Knapp,
part of the land covered by a
mortgage was sold, and a purchase-
money mortgage taken, which
was subsequently assigned to the
holder of the paramount incum-
brance, and it was held that he
was thereby affected with notice of
the sale, and could not release the
residue of the land without dis-
charging the whole. In like man-
ner, one who receives a convey-
ance of an undivided moiety, in
which the premises are described
as subject to an incumbrance, can-
not allege that he was ignorant of
the incumbrance, in a suit brought

on a subsequent contract of sale,
for the price of the other moiety ;
Bellas V. Lloyd, 2 Watts, 401.

It is well settled, that a vague
and general statement, in whatever
form, will not operate as notice.
To bind the conscience of a pur-
chaser by a recital, it must conse-
quently be sufficiently clear and
distinct to convey the requisite in-
formation, or put him on his
guard. That a fact is set forth in
the line of the title, will not make
it constructive notice, unless it
would have operated as actual no-
tice, if communicated directly to
the purchaser ; French v. The
Loyal Company, 5 Leigh, 627 ;
Lodge v. Simonton, 2 Penna. R.
439 ; Bell v. Tioilight, 2 Foster,
500 ; Kane v. Denniston, 10 Har-
ris, 202 ; White v. Carpenter, 2
Paige, 217. In the language of
Chancellor Walworth, in White v.
Carpenter, the recital " must be
such as to explain itself by its own
terms, or refer to some deed or
circumstance which explains it, or
leads to its explianation."

Lis pendens as notice " Lis
pendens, which in a chancery
suit begins with the filing of
the bill and service of subpoena,
and continues until the final or-
ders are taken in the case, is no-
tice of every fact contained in
the pleadings which is pertinent
to the issue, and of the contents of
exhibits to the bill which are pro-
duced and proved ; " Carter v. The
Bank, 22 Alabama, 743. It follows
that a purchase from the defendant
in a bill to establish a trust or en-
force an equitable right of any kind,
will not confer a valid title as

LB NEVE y. LB NEVE.

193

against the complainant. The
rule grew out of the peculiar ju-
risdiction of chancery, which act-
ting through the conscience of
the party, and not on the prop-
erty in dispute, might be defeated
by a sale, pendente lite, if the pur-
chaser were not affected construc-
tively with notice. It has, there-
for, little or no place in the ordi-
nary course of procedure at law,
because if the plaintiff's right is
good against the defendant, it will
be equally valid against a honj,
fide purchaser. But this obser-
vation does not hold good when
the suit is brought to set aside a
sale or conveyance on the ground
of actual or constructive fraud,
as in the case of an ejectment is-
sued by one claiming under an
unregistered deed against a subse-
quent grantee with notice.

A lis pendens does not exist or
operate as notice until the bill is
filed and the subpoena actually
served on the defendant the one
being requisite to give the court
jurisdiction, and the other to ap-
prise the purchaser of the nature
of the equity, and direct his atten-
tion to the right or property in
dispute ; Leitch v. Wells, 48 New
York, 585 ; Hayden v. Bucklin,
9 Paige, 512.

The pendency of the suit ordi-
narily dates from the service of
the subpoena ; but where the pur-
chaser bought immediately after-
wards and before the writ was re-
turned, the court held that the pre-
sumption of notice was rebutted,
and that the purchaser acquired
a valid title ; King v. Bell, 28
VOL. II. — 13

Conn. 593. See Norton v. Burge
35 Id. 250, 260.

The doctrine was established in
this country in Murray v. Bal-
lou, 1 Johnson, Chancery, 566 ;
Murray v. Finster, 2 Id. 155, and
Eeatley v. Finster, lb. 158, where
a bill filed against a trustee, charg-
ing him with a breach of trust, and
praying that he might be enjoined
from disposing of the property,
was held to be constructive notice
to the defendant, who purcha-
sed the premises in question, after
the service of the subpcEna on
the trustee. " Admitting," said
Chancellor Kent, "that the defend-
ant had no knowledge, in fact, of
the suit of Mrs. Green against
Winters when he made the pur-
chase, he is, nevertheless, chargea-
ble with legal or constructive no-
tice, so as to render his purchase
subject to the event of that suit.
The established rule is, that a lis
pendens, duly prosecuted, and not
collusive, is notice to a purchaser
so as to affect and bind his inter-
est by the decree ; and the lis pen-
dens begins from the service of
the subpoena after the bill is filed.

The counsel for the defendants
have made loud complaints of the
inj ustice of this rule, but the com-
plaint was not properly addressed
to me, for, if it is a well settled
rule, I am bound to apply it, and
it is not in my power to dispense
with it. I have no doubt the rule
will sometimes operate with hard-
ships upon a purchaser without
actual notice ; but this seems to be
one of the cases in which private
mischief must yield to general con-

194

NOTICE.

venience; and, most probably, the
necessity of such a hard applica-
tion of the rule will not arise in one
out of a thousand instances. On
the other hand, we may be assured,
the rule would not have existed,
and have been supported for cen-
turies, if it had not been founded
in great public utility. Without
it, as has been observed in some
of the cases, a man, upon the ser-
vice of a subpcena, might alienate
his lands, and prevent the justice
of the court. Its decrees might
be wholly evaded. In this very
case, the trustee had been charged
with a gross breach of his trust, and
had been enjoined by the process
of the court, six months before
the sale in question, from any fur-
ther sales. If his subsequent sales
are to be held valid, what tempta-
tion is held out to waste the trust
property, and destroy all the hopes
and interest of the cestui que
trust ? A suit in chancery is, in
such cases, necessarily tedious and
expensive, and years may elapse,
as in this case, before the suit can
be brought to a final conclusion.
If the property is to remain all
this time subject to his disposition,
in spite of the efforts of the court
to prevent it, the rights of that
helpless portion of the community,
whose property is most frequently
held in trust, will be put in ex-
treme jeopardy. To bring home
to every purchaser the charge of
actual notice of the suit, must,
from the very nature of the case,
be in a great degree impracticable.
The only safe and efficient means
of preventing such fraud and in-
justice, is to charge the purchase

with dealing with the trustee at
his peril. The policy of the law
does, in general, cast that peril
upon the purchaser. Caveat emp-
tor, is the settled maxim of the
common law. It is his business
to inquire and to look to the per-
son to whom he deals. If he
knows him to be a trustee, then
let him inquire of the cestui que
trust, or let liim ask at the regis-
ter's office, whether there be any
suit pending against such trustee.
He can always be safe if he uses
due diligence, but the other party
has no means of safety beyond
his application to the court.
Whatever may be thought of the
rule, it appears to me to be less
severe than that acknowledged
rule of the common law, on which
our courts have repeatedly acted,
that a conveyance of land, with-
out any warranty or covenant of
title, will not enable the purcha-
ser to resort back to the seller,
even if the title should fail ;
(Frost V. Raymond, 2 Caine's
Rep. 188 ;") and if he has cove-
nants to secure his title, he can seek
for no more than the consideration
which he has paid, without any
allowance for the rise in the value
of the land, or the value of the im-
provements ; {Pitcher v. Living-
ston, 4 Johnson, Rep. 1.)

The doctrine laid down in these
instances, is generally adopted in
the United States by courts of
equity ; Griffith v. Griffith, 1 Hof-
man, 153 ; Jackson v. Ketcham,
8 Johnson, 479; Harris v. Gar-
ter's Adm'rs, S Stewart, 233;
Tongue v. Morton, 6 Harris &
Johnson, 21 ; Owings v. Myers,

LE NEVE V. LB NEVE,

195

3 Bibb. 2t9 ; Jackson v. Andrews,
1 Wend. 152; Chapman v. West,
17 New York, 125 ; Patterson v.
Brown, 32 Id. 81 ; Bakeman v.
Montgomerg, 1 M'Carter, 106;
M'Pherson v. Hansell, 2 Beesely,
299 ; Roberts v. Fleming, 53 Illi-
nois, 198 ; Walker v. Butz, 1
Yeates, 574 ; Chandron v. Magee,
8 Alabama, 578 ; Carter v. The
Bank, 22 Id. 743 ; Jackson v.
Warren, 32 Illinois, 331 ; Cooley
V. Brayton, 16 Iowa, 10; Loomis
V. -Ri7e!/, 24 Id. 307 ; Green v.
White, 7 Blackford, 242; Bake-
man v. Montgomery, 1 M 'Carter,
106 ; Gassom v. Donaldson, 18 B.
Monroe, 231 ; Norton v. Barge,
35 Conn. 250 ; Whiting v. Beebe,
7 English, 564 ; Ashley v. C'wn-
ningham, 16 Arkansas, 168 ; Ci'Z-
man v. Hamilton, 16 Illinois, 225 ;
Inloe's Lessee v. Harvey, 11 Mary-
land, 519; Harrington v. Slade,
22 Barb. 166; Pratt v. Hoag, 5
Duer, 631 ; Hersey v. Turbitt, 3
Casey, 418; and by courts of law
■when acting on and enforcing
equitable principles.

It is 'H^ell settled under these de-
cisions, that a bill to foreclose a
mortgage or establish a resulting
or constructive trust, is construc-
tive notice to purchasers, and to
creditors who obtain judgment
after the institution of the suit. See
Horn V. Jones, 28 California, 194
Wickliffe v. Bell, 1 Bush, 427
Knowles v. Roblin, 20 Iowa, 101
Edwards v. Blanksmith, 35 Geor.
gia, 213 ; Boyer v. Cockerill, 3
Kansas, 282. So one who buys
from the defendant, in an eject-
ment brought to enforce an equity
under the course of procedure in

Pennsylvania, has notice, and is as
much concluded by the verdict and
judgment, as if he were a party to
the suit ; Hersey v. Tarbett ; Hill
V. Oliphant, 5 Wright, 364; Bol-
lin V. Connelly, 23 P. F. Smith,
346. See Salisbury v. Morris, 7
Lansing, 359. So an attachment of
property, which like land is not
negotiable, is binding on a pur-
chaser pendente lite ; Tuttle v.
Turner, 28 Texas, 789 ; Norton v.
Birge, 35 Conn. 250,261.

In like manner, the pendencj' of
a suit may supply the want of regis-
tration; Chapman \. West, 17 New
York, 125 ; Carter v. The Bank,
22 Alabama, 743 ; and in this case
a judgment was postponed to an
unrecorded mortgage, on the
ground that a bill had been filed to
foreclose the mortgage before the
judgment was rendered. But the
rule does not apply where actual
notice is required by statute, or
under the construction adopted by
the courts; Newman v. Chapman,
2 Eandolph, 93 ; City Council v.
Page, Speers' Eq. 209, 212;
Mecutcheon v. Miller, 31 Missis-
sippi, 65. See Wyatt v. Barnwell,
19 Vesey, 439.

There is ordinarily no occasion
for the doctrine of lis pendens
where personal property is con-
cerned ; the rule being that the
title of a purchaser of a chattel or
chose in action does not rise
a;bove the vendor's, ante. It is,
nevertheless, as true of personal
property as it is of real, that one
who acquires the legal title in good
faith may hold it against a latent
equity ; Leitch v. Wells, 48 New
York, 585. The question of notice

196

NOTICE.

is material under these circumstan-
ces, and the course of decision is,
that a purchase of goods or securi-
ties from a trustee, pending a bill
filed to enforce the trust, is invalid
and may be set aside ; Scudder v.
Van Amburgh, 4 Edwards, 29 ; Boi-
ling V. Carter, 9 Alabama, 7^0;
Shelton V. Johnson, 4 Sneed, 672 ;
Leitch V. Wills, 48 Barb. 637 ;
Diamond v. The Lawrence Co.
Bank, 1 Wright, 353 ; Murray v.
Lylhurn, 2 Johnson's Chancery,
441 ; see Leitch v. Wells.

In Murray v. Lylburn, a bill
was filed against Winter, who held
certain lands in trust for the com-
plainant, charging him with a
breach of trust, and he was there-
upon enjoined from selling any of
the trust estate or assigning the
securities or proceeds thereof.
Winter, notwithstanding, sold a
lot of land belonging to the trust,
and took a bond and mortgage for
the purchase-money, which he as-
signed to the defendant Lylburn,
who gave value for it in good
faith. Chancellor Kent said :
" The right of the complainant to
pursue the bond and mortgageinto
the hands of the assignee, depends
on the constructive notice to all
the world, arising from the bill and
supplementary bill, filed in 1809,
against Winter for a breach of
trust. The object of that suit was
to take the whole subject of the
trust out of his hands, together
with all the papers and securities
relating thereto. If Winter had
held a number of mortgages and
other securities in trust, when the
suit was commerced, it would not
be pretended that he might safely

defeat the object of the suit and
the justice of the court, by selling
those securities. If he possessed
cash, as the proceeds of the trust es-
tate, or negotiable paper not due,
or perhaps movable personal prop-
erty, such as horses, cattle, grain,
&c., I am not prepared to say the
rule is to be carried so far as to
affect such sales. The safety of
commercial dealings would require
a limitation of the rule ; but bonds
and mortgages are not the subject
of ordinary commerce, and they
formed one of the specific subjects
of the suit against Winter, and the
injunction prohibited the sale and
assignment of them, as well as of
the lands held in trust. If the
trustee, pending the suit, changed
the land into personal security, as
he did in this case, 1 see no good
reason why the cestui que trusts
should not be at liberty to affirm
the sale, and take the security ;
and whoever afterwards pur-
chased it, was chargeable with
notice of the suit." A purchase
of stocks pendente lite, was set
aside on like grounds in' Leitch v.
Wills, 48 Barb. 637, but the deci-
sion was reversed by the court
above ; 48 New York, 585.

The rule that a pending bill is
notice, does not reach far enough
to hamper the circulation of money
or negotiable securities ; for as to
these the market is always overt,
and the course of business does
not afford time or opportunity for
an examination of the record;
Kieffer v. Ehler, 6 Harris, 388,
391; Winston v. Westfeldt, 22
Alabama, 760 ; Leitch v. Wells, 48
New York, 585. It follows that

NEVE V. LE NEVE.

197

the endorsement of a promissory
note before maturity in good faith
and for value, will confer a valid
title, although an injunction has
been served on the endorser, and
he is guilty of a contempt of court ;
Winston V. Wesfeldt ; Stone v. El-
liott, 11 Ohio, N. S. 252, 260. For
a like reason the service of an
attachment on the maker of a note,
will not invalidate an endorsement
by the payee ; Keiffer v. Ehler.

To render a lis pendens notice,
the allegation must be sufficiently
clear and precise to direct the at-
tention of the purchaser to the
property which the complainant
seeks to charge by the bill ; Lewis
V. Madison, 1 Munford, 303 ; Low
V. Pratt, 53 Illinois, 438 ; Miller
V. Shurz, 2 Wallace, 231 ; and it
wQl not be enough to aver that
the defendant has invested trust
funds in bonds and mortgages, or
converted them into land without
specifying the location of the real
estate, or giving some ear-mark by
which the personalty may be re-
cognized ; Griffith v. Griffith, 1
Hoffman, 153 ; 9 Paige, 317 ; Lewis
V. Mew, 1 Strobhart's Eq. 180. In
like manner, a creditor's bill, which
is not sufficiently definite in the de-
scription of the estate which it seeks
to charge with the debt, will not
operate as notice to a purchaser
under a bill filed subsequently by
another creditor pending the first ;
Miller V. Shurz, 2 Wallace, 257.
In this ease, Swayne, J., said, that
to create a lis pendens, operating
as notice, a bill " must be so defi-
nite, that any one reading it can
learn what property is intended to
be made the subject of litigation.

In Griffith V. Griffith, 9 Paige,
317, it is said : " To have made
such a bill constructive notice to
a purchaser from the defendant
therein, it would have been neces-
sary to allege that these particular
lots, or that all the real estate of
the defendant in the city of New
York, had been purchased and
paid for, either wholly or in part,
with the funds of the infant com-
plainant. Or some other charge
of a similar nature should have
been inserted in the bill, to enable
purchasers, by an examination of
the bill itself, to see that the com-
plainant claimed the right to, or
some equitable interest in, or lien
on the premises." It is evident
that the premises in controversy
were not in the mind of the
pleader when this bill was drawn."

Certainty to a common intent
is, nevertheless, all that a chancellor
should require ; Green v. Slayter,
4 Johnson, Ch. 68 ; see Lodge v.
Simonton, 3 Penna. R. 439, 447,
449 ; and in Green v. Slayter, an
averment that the defendant held
divers lands in Cosby manor, in
trust for the complainant, was
held sufficient as putting the pur-
chaser on inquiry, and enabling
him to ascertain the truth.

In general, the operation of a
lis pendens as notice does not ex-
tend beyond the prayer for relief,
or to property not embraced in
the bill. But a suit for specific
performance by a purchaser of
part of a tract of land covered
by a mortgage, may be notice of
his equity to have the premises
charged in the inverse order of
alienation, to a subsequent pur-

198

NOTICE.

chase of the residue of the tract
from the same vendor, because the
existence of the mortgage renders
it incumbent on the latter to in-
quire whether any act has been
done by the mortgagor rendering
it inequitable to throw the burden
on part of the premises in exonera
tion of the rest ; Chapman v. West,
17 New York, 124.

The operation of a lis pendens
only extends to those who acquire
title after the filing of the bill, and
from a party or privy. Hence the
pendency of a bill is not notice to a
purchaser from a stranger to the
suit, although the land be the same
as that charged by the bill, and
affected with the same equity ;
French v. The Loyal Co., 5 Leigh,
627 ; Stuyvesant v. Hone, 1 Sand-
ford's Ch. 419; Rarringtonv. Har-
rington, 27 Missouri, 560; Sticy-
vesant v. Hall, 2 Barb. Ch. 151 ;
Scarlet v. Gorham, 28 Illinois, 319;
Parsons v. Hoyt, 24 Iowa, 154 ;
Miller v. Shurz, 2 Wallace, 237.
A foreclosure suit is not notice to
a prior incumbrancer who is not a
party to the bill ; Stuyvesant v.
Howe ; nor will the service of a
snbpcena on A., operate as notice
to a purchaser from B. ; Glarkson
V. Morgan, 6 B. Monroe, 441.
There is, said Swajme, J., in Mil-
ler V. Shurz, "another reason why
the bill could not operate as con-
structive notice. Williams, who
held the legal title, was not a
party. We apprehend that to
affect a party as a purchaser pen-
dente lite, it is neoessar^^ to show
that the holder of the legal title
was impleaded before the purchase,
which is to be set aside ; Carr v.

Callaghan, 3 Littell, 371. The
principle applies only to those who
acquire an interest from a defend-
ant pendente lite ; Stuyvesant v.
Hall, 2 Barbour's Chancery Rep.
151 ; Fenwick's Adm'r v. Macey,
2 B. Monroe, 1470 ; Parks v. Jack-
son, 11 Wendell, 442; see Norton
V. Berge, 35 Conn. 250.

For a like reason, filing a bill
will not invalidate an act, which,
though subsequent, is done by
virtue of an anterior right. A
mortgagee may consequently re-
lease a part of the land, although
the effect is to throw the whole
burden on another part which has
been mortgaged to a subsequent
incumbrancer who instituted pro-
ceedings for foreclosure before
the execution of the release ;
Stuyvesant v. Hone, 1 Sandford's
Ch. 419; 2 Barb. Ch. 151. So
filing a bill against the vendor is
not notice to a purchaser who has
gone into possession and im-
proved the land, and will not pre-
clude him from completing his
title, bj' pa3'ing the purchase-
money, and taking a deed ; Clark-
son V. Morgan, 6 B. Monroe, 441 ;
see Parks v. Jackson, 11 Wend.
442 ; Tremble v. Boothby, 14 Ohio,
909 ; Gibler v. Tremble, lb. 323.
And it is well settled under the
English decisions that a first mort-
gage may be tacked to a third,
to the exclusion of an intervening
incumbrancer during a bill filed by
the latter to foreclose, ante.

It is essential to the operation
of a lis pendens as notice, that it
should be diligently prosecuted,
and a complainant who suffers the
proceeding to lie dormant for an

LB NEVE V. LE NEVE.

199

unreasonable length of time, will
not be aided by the chancellor
against a purchaser whom he has
contributed to mislead by his
laches ; Oibler v. Trimble^ 14
Ohio, 323; Trimble v. Boothby,
lb. 109; Price v. M'Donald, 1
Maryland, 403, 412 ; see Watson
v. Wilson, 2 Dana, 406 ; Clarkson
V. Morgan, 6 B. Monroe, 441, 448.
In Petree v. Bristow, 2 Bush, 58,
an unexplained delay of two years,
without any step taken or motion
made to prosecute the suit, was held
to be gross negligence, which post-
poned the complainant to one who
gave value for the property during
the interval without actual notice.

A lis pendens does not neces-
sarily cease to be such on the abate-
ment of the suit by death ; and the
question depends on whether it is
revived with due diligence, and be-
fore sufficient time has elapsed
to justify third persons in be-
lieving that the proceeding is at an
end ; Watson v. Wilson, 2 Dana,
406 ; Clary v. Marshall, 4 Id. 95 ;
Debell v. Foxworthy, 9 B. Monroe,
223. In Watson v. Wilson, a bill
was filed to set aside a convey-
ance as a fraud on creditors. The
suit abated through the respon-
dent's death, and was not revived
for more than two years. The
premises were sold during the in-
terval by his heirs, and bought
by the defendant, and it was held
that he could not be charged as a
purchaser pendente lite.

Nicholas, J., observed : " It is
said by several writers, that in
order to affect a purchaser, there
must be aldose and continued
prosecution of the lis pendens.

This has been said, as is presumed,
mainly upon the authority of Pres-
ton V. Tubbin, 1 Vern. 286, as no
other case is found cited in sup-
port of the doctrine, or in which
it has been distinctly acted upon.
In that case there is an observa-
tion, that there ought to Be a close
and continued prosecution of the
lis pendens ; but it seems to be
the observation of the reporter
merely, made for the purpose of
indicating what the case decides.
But the case decides nothing more
than that the pendency of a suit
at the time of the purchase, does
not affect the purchaser with notice
in any new suit, the first having
been dismissed or discontinued.
Lord Bacon's rule, which probably
was the fountain of all this doc-
trine, by requiring that the suit
should be in full prosecution at the
time of the purchase, would seem
to intimate, that there is a degree
of intermission in such prosecu-
tion, which will deprive the com-
plainant of the protection of the
rule. All the writers concur in
this idea ; but what degree of in-
termission will have this' efiect, it
is impossible to ascertain from
tliem, with any distinctness. In a
case decided by Lord Clarendon,
and cited with approbation by
Lord Nottingham, the bill was
filed in 1640, abated by a death in
1648, the purchase made in 1661,
and the bill of revivor not filed
till 1662 ; still the purchaser was
held bound. But this case, when
subsequently cited, has been ac-
companied with the indication of
decided disapprobation ; and Mr.
Sugden says, it was attended with

200

NOTICE.

circumstances, that strip it of all
character as an authority upon the
point in question. The case was
cited by Sir William Grant, in
Winchester v. Paine, 11 Yes. 200,
to show Lord Nottingham's opin-
ion, that it made no difference,
though fhe purchase was during
an abatement of the suit, if after-
wards revived and prosecuted to a
degree, but at the same time he
gave it as his own opinion, that in
such case, there would be great
difficulty in holding the purchaser
bound ; without, however, suggest-
ing any reason for such difficulty,
Mr. Sugden, after noticing' this in-
timation of opinion, suggests, ' that
if ever the point should call for a
decision, it will probably turn upon
the question whether the plaintiff
was guilty of laches in reviving
the suit.' "

" It was held by Lord Redesdale,
that a purchase made after the dis-
missal of a bill, was subject to the
final disposition of the cause in the
House of Lords, provided an appeal
was afterwards taken, and such is
the received doctrine in England.
We perceive no satisfactory rea-
son, why a purchaser during the
temporary abatement of a suit,
should not be affected in the same
way. A suit like this, can, with
equal, if not greater propriety, be
said to be pending, after an abate-
ment by death, than after decree
and before appeal in England, or
writ of error in this country. The
question seems properly resolvable,
as suggested by Sugden, into an
inquiry whetlier, the complainant
was guilty of culpable negligence
in reviving his suit."

" As to the negligence objected
to in this case, we are not prepared
to say, nor does our experience of
the ordinary progress of a chan-
cery suit in this state authorize
us in saying, that from May, 1825,
when the subpoena was served, till
April, 1828, when Watson obtained
his deed, there was that lapse of
time, which unexplained, would, of
itself, amount to such laches, as to
deprive the complainant of the
benefit of the rule."

But the delay in reviving the
suit of nearly two years, to the time
when Watson completed his pur-
chase, and of more than two years
to the time of revivor, without any
step taken towards a revivor, and
without any explanation or excuse
shown for the delay, is of a dif-
ferent character. If such a delay
for two years does not need ex-
planation, we should have much
difficulty in saying what length of
delay would require it. No satis-
factory reason suggests itself,
for saving it from the inculpation
of gross and wilful negligence.
We are, therefore, bound to say
that there was not such a prosecu-
tion of Wilson's suit, as entitles
him to the protection of the rule,
and that his decree and purchase
ulider it, cannot be permitted to
overreach and avoid the convey-
ance to Watson. The rule, though
necessary and indispensable, has
ever been deemed harsh and rigor-
ous in its operation against bona
fide purchasers, and it is said, that,
in England, if the complainant
make a slip on his proceedings, the
court will not assist hrtn to rectify
the mistake. We deem it strictly

LB NEVE V. LB NEVE.

201

proper, that he should be held to
something like reasonable diligence
in the prosecution of his suit, to
entitle himself to the protection
of the rule."

It results from what is here said,
that a purchase from the defend-
ant, after the abatement of the suit
by death, will not confer a valid
title, if the proceeding is revived
within a reasonable time, and eon-
ducted to a successful termination ;
Ashley V. Cunningham, 16 Arkan-
sas, 168 ; Debell v. Foxworthy.

In like manner, the entry of a de-
cree for the defendant will not put
an end to the operation of a suit
as notice, until a sufficient time
has elapsed for an appeal ; and one
who buys in the meantime will be
subject to the complainant's equity
as finally established ; Debell v.
Foxworthy ; Talbot v. Ball, 5 B.
Monroe, 32.3 ; Gilman v. Hamil-
ton, 16 Illinois, 225. When, how-
ever, a bill is dismissed, although
without prejudice, the proceeding
is at an end unless the decision is
reversed ; and another bill for the
same cause, will not relate back to
the exclusion of an intervening
purchaser; Newman v. Chapman,
2 Randolph, 102 ; French v. The
Loyal Co., 1 Leigh, 62T, 681.

The operation of a suit as no-
tice ceases when it is brought to
an end by a decree or judgment;
Price V. White, I Bailey's Eq.
234 ; Blake v. Heyward, lb. 208 ;
Turner v. Grebill, 1 Ohio, 574 ;
although a decree, which may be
reviewed by a higher tribunal is not
final in this sense, until a sufficient
time has elapsed for an appeal ;
Debell v. Foxworthy, 9 B. Monroe,

228. It has been said to follow,
that a decree for the complainant,
and that the defendants shall con-
vey the premises, will not bind a
subsequent purchaser from the
latter, unless the deed is executed
and recorded ; Winborn v. Gor-
rell,3 Iredell's Eq. 117. But in
Jackson v. Warner, 32 Illinois,
331, the court held that a Chan-
cellor does not become functus
officio on rendering such a decree,
nor until it is carried into effect
by the execution of a convey-
ance and the delivery of possession
under it to the grantee ; and a
purchase from a defendant who
has not complied with the order of
the Court, is prima facie in bad
faith.

A bill was filed enjoining a
county from issuing bonds, and
an injunction granted. Subse-
quently the proceedings under
which the bonds were issued were
declared valid by an act of the
legislature. A year after, a bill
was brought to declare the bonds
issued in the meantime void ; but
they were declared valid. Two
years after, a bill of review was
filed, and the decree reversed.
The court held that the suits
were distinct, and that the bonds
could not be regarded as having
been issued pendente lite ; Lee
County V. Sogers, 7 Wallace
^1.

Nevertheless, where an attach-
ment issued at the suit of a credi-
tor against land which had been
fraudulently conveyed by the
debtor, was, on the institution of
proceedings on behalf of all the
creditors, discontinued, and an

202

NOTICE.

assignee in bankruptcy appointed
by the ' appropriate tribunal, the
court held that the whole was vir-
tually one proceeding, and that a
purchaser who had bought during
the pendency of the attachment,
was concluded by a decree in favor
of the assignee ; Norton v. Birge,
35 Conn. 250.

A bona fide purchase of per-
sonal property in one state will
not be invalidated by the pendency
of a suit against the vendor in an-
other, even when the goods were
within the latter State at the filing
of the bill, and removed before the
sale, with an intent to evade the
jurisdiction; Shelton y. Johnson, i
Sneed. 4-72.

It has been held that if a credi-
tor files a bill in his own name,
and for his sole benefit, to set
aside a fraudulent conveyance, and
to have the property applied, by
the aid of a court of equity, to the
payment of his judgment, and no
lien has been or can be acquired
at law, '• he acquires a specific lien
by filing the bill," and is entitled to
priority over other creditors ; and
that any pa,rty purchasing the
property sought to be subjected to
the claim, is a purchaser '■^pen-
dente lite." See M'Cutchen v.
Miller, 31 Mississippi, 89; Norton
V. Birge, 35 Conn. 250 ; Miller v.
Shurz, 2 Wallace, 237 ; Watson v.
Wilson, 2 Dana, 406 ; M'Dermo^
V. Strong, i John. C. R. 687 ; Ed-
miston v. Lyde, 1 Paige, 637 ;
Corning v. White, 2 lb. 567 ; Farn-
ham V. Campbell, 10 lb. 598 ; Weed
Y. Pierce, 9 Cowen, 722; U. S.
Bank V. Burke, i Blackford, 141 ;
Hadden v. Spader, 20 Johns. R.

554 ; Blake v. Bigelow, 5 Georgia,
437. The question was, however,
regarded in a different aspect in
M' Cutchen v. Miller, by the ma-
jority of the court.

Registration as notice. The
statutes of the various States pro-
vide that unregistered grants and
mortgages shall be invalid as
against subsequent purchasers.
There is nothing in the letter
of such a law to make regis-
tration notice. A provision that
a deed shall be recorded, is not
in terms or by necessary implica-
tion, a provision that compliance
with the statute shall render the
instrument more efficacious than
it would have been at common
law ; Wiseman v. Westland, 1 Y.
& J. 117 ; Underwood v. Lord
Courlown, 2 Sch. & Lefroy, 40 ;
ante; see Hodgson v. Dean, 2 Si-
mons & Stuart, 221 ; Bushnell v.
Bushnell, 1 Scho. & Lefroy, 103.
The registry acts are so interpreted
in England, and bj' the Irish courts,
although a purchaser may be
charged with notice on proof that
he examined the registry ; ante, 144.
" The plain meaning of the statute,"
said Lord Redesdale, in Under-
wood V. Lord Courtown, " is to
give priority to instruments,
whether they convey a legal or
equitable estate according to the
priority of their registry, but still,
according to the rights, titles, and
interests of the persons convey-
ing. " The same view prevailed in
the first instance, in some of the
States of this country ; Doswell
V. Buchanan, 3 Leigh, 365.

In Grimstone v. Carter, 3 Paige,
421, 437, an absolute grant was

LB NEVE V. LB NEVB.

iiU3

made as a security with a parol
agreement on the part of the
grantee to reconvey on payment,
and it was held to be imma-
terial as it regarded a subsequfcnt
purchaser from the grantee, that
the agreement had not been re-
corded. Whether it was or was
not, he would be bound by notice,
and not without it.

In the case last cited, Chancel-
lor Walworth said, the object of
the recording act " was to protect a
bona fide purchaser against a pre-
vious conveyance of the legal es-
tate or of some part thereof, which
would be valid against him, if the
recording act had not been passed.
But a purchaser did not need the
aid of the legislature to protect
him against a prior equity or a
mere agreement to convey. Hav-
ing the legal title under his con-
veyance, he would be able to de-
fend his title at law, and a plea
that he was a bona fide purchaser
for a valuable consideration would
afford him a full protection against
an equitable claim, of which he
had no previous notice." It is an
inevitable inference from this lan-
guage, that a conveyance of an
equity is not within the recording
acts, and will not operate as notice
if registered. See Walker v. Gil-
bert, 1 Freeman Ch. 25 ; Morecock
y. Dickens, Ambler, 678.

It was held in like manner, in
Doswell V. Buchanan, 3 Leigh,
STT, that the registering of a mort-
gage of an equitable estate was
not notice to one who bought sub-
sequently from the mortgagor
after he had acquired the legal title.
Carr, J., said, " the registry acts

declare that all deeds, mortgages,
&c., shall be void as to subsequent
purchasers, unless duly recorded ;
but they nowhere declare, that such
recording shall charge the subse-
quent purchaser with notice of the
deed. If not i-ecorded, the deed
is void as to him ; if recorded, it
is only so far valid, that it passes
to the bargainee the title it pur-
ports to convey, provided the bar-
gainor had that title ; if he had it
not, the deed cannot pass it,
though recorded ; nor will the
putting it on record affect the con-
science of a subsequent purchaser
of the legal title, nor, of course,
charge that title with tlie equity
which the deed raised between the
bargainor and the bargainee."

A more liberal doctrine now
prevails in the United States,
founded on the duty of a pur-
chaser to use every available
means of information. The ob-
ject of the Legislature in passing
the registry acts, was to enable
every one who received a convey-
ance to place it on record for the
benefit of those who might come
after him. A purchaser should not,
therefore, be allowed to profess
ignorance of a deed which has been
duly registered. Whether he does
or does not examine the registry,
the presumption against his good
faith is equally strong. It is well
settled, that one who wilfully
omits to inform himself, is not less
chargeable with notice than if he
knew. The inference is the same,
whether the prior right is an
equity, or depends on an unregis-
tered deed ; see Wild v. Brooks,
10 Minnesota, 50 ; Digman v.

204

NOTICE.

JlfCM^ZMm, 47 Missouri, 3'?2. Tlie
rule was established judicially on
this basis in some of the States,
and has been introduced into
others by statute ; see Stevenson
V. 3Iorse, 17 New Hampshire, 532 ;
Brown v. Simpson, i Kansas, 76 ;
Van Rensselaer v. CTar^, 17 Wend.
25 ; Thomas v. Kennedy, 24 Iowa,
397 ; Shore v. Lascar, 22 Wiscon-
sin, 142; Johnson v. Stagg, 2
Johnson, 510; Wardell v. Wads-
worth, 20 Id. 663 ; ParMstY. Alex-
ander, 1 Johnson, Ch. 394 ; Berry
V. The Mutual Ins. Go., 2 Id. 603 ;
Jackson V. Dubois, 4 Johnson, 216 ;
James v. Morey, 2 Cowen, 216 ;
Shutt V. Large, 6 Barbour's S. C. R.
373 ; Knouffy. Thompson, 4 Har-
ris, 357 ; M'Mechan v. Griffing, 3
Pick. 11 ; Shaw v. Poor, 6 Id. 86 ;
Gushing v. Ayer, 25 Maine, 383 ;
Irvin V. Smith, 17 Ohio, 226;
Martin v. SaZe, 1 Bailey's Equity,
1 ; Mann v. Martin, 4 Maryland,
124 ; Farquharson v. Gechelber-
ger, 15 Id. 73 ; The Mayor v. MZ-
liams, 6 Id. 235 ; Williams v. TAe
Bank, 11 Id. 198 ; Reiser v. iTews-
ton, 38 Illinois, 252 ; Tod v. 5ene-
dtcf. In Brotherton v. Livingston,
3 W. & S. 334, the principle was
held broad enough to embrace an
agreement, which though not
under seal, had been reduced to
writing, and was Yalid under the
statute of frauds ; Schutt v. Large,
6 Barb. 373 ; Keiser v. Heuston, 38
Illinois, 252. It follows, that regis-
tering a grant of an .equitable
state, or of a covenant to convey,
is notice to a subsequent purchaser
from the grantor or covenantor;
The U. S. Ins. Co. v. Shriver, 3
Maryland, Ch. 381 ; Sunt v. John-

son, 19 New York, 279 ; Alderson
v. Ayres, 6 Maryland, 342 ; The
General Ins. Go. v. The M. Ins.
Go., 10 Maryland, 517 ; Alexander
V. Ames, 6 Id. 52 ; Doyle v. Teas,
4 Scammon, 202; Wilder v.
Brooks, 10 Minnesota, 50 ; Siter
V. M'Glenachan, 3 Leigh, 362;
Bussell's Appeal, 3 Harris, 319;
Bellas \. M'Carty, 10 Watts, 13.
In The U. S. Ins. Go. v. Shriver,
the design of the Legislature
was said to be that "all rights,
incumbrances, or conveyances,
touching, connected with, or in
anywise concerning land, should
appear upon the public records.
It followed, that conveyances of
equitable interests in land were
within the Registry Acts ; and
that a conveyance of such an inter-
est, which though subsequent in
date, is first recorded, must be pre-
ferred, unless the grantee had ac-
tual notice of the prior unregis-
tered deed."

It results from the same doc-
trine, that the registration of a
voluntary deed rebuts the pre-
sumption of unfair dealing, which
would otherwise arise from a sub-
sequent sale of the property, and
renders it incumbent on the pur-
chaser to prove actual fraud if he
would set aside the conveyance ;
The Mayor v. Williams, 6 Mary-
land, 235 ; Williams v. The Bank,
Hid. 198; Gooke's Lessee Y.Bell,
13 Maryland, 469, 493; Beal v.
Warren, 2 Gray, 450 ; 1 Am.
Lead. Cases, 57, 5 ed.

The registration of a deed or
mortgage will not operate as no-
tice, unless the premises are de-
scribed with suflBcient accuracy to

LE NBVB V. LE NEVE.

205

put a subsequent purchaser on his
guard; Rogers v. Eauanaugh, 25
Illinois, 583 ; Martindale v. Price,
14 Indiana, 115; Lally v. Hol-
land, 1 Swan, 396 ; Singer v.
Craigue, 10 Vermont, 555 ; Nelson
V. Wade, 21 Iowa, 49 ; Banks v.
Ammon, 3 Casey, 1'72; Mundy y.
Vawter, 3 Gfrattan, 518 ; Lally v.
Holland, 1 Swan, 396. The premi-
ses must be defined by metes and
bounds, or there must be some
other sufficient means of identifi-
cation ; Banks v. Ammon, 3 Casey,
172. In Mundy v. Vawter, 3
Grattan, 518, a conveyance of all
the grantor's real and personal
estate was held not to be notice to
a subseqent purchaser; but in the
determination of such questions
much may depend on the knowl-
edge of the purchaser, and whether
enough was disclosed to enable
him to ascertain the situation and
boundaries of the land by inquiry ;
BroLherton v. Lioingston, 3 W. &
S. 334 ; Jones v. Banford, 21
Iowa, 21*7; Partridge v. Smith, 2
Bissell, 183.

The principle is the same where
the wording of a mortgage is so
vague or inaccurate as to mislead
creditors and purchasers ; although
it will not be enforced, unless the
instrument is so drawn as to
convej' a false impression on some
point material to their interests,
vol. 1, 813 ; see Hart v. Ghalker, 14
Conn. Y71 ; Pettibone v. Grisiuold,
4 Id. 58; Babcock v. Bridge, 29
Barb. 427 ; Young v. Wilson, 24
Id. 510; 27 New York, 351 ; Bell
V. Fleming, 1 Beasley, 13, 494.

As this mode of notice is the
creature of legislation, it will not

arise from the voluntary registra-
tion of an instrument which the
law does not require to be re-
corded ; Burnham v. Chandler,
15 Texas, 441 ; The Common-
wealth V. Bodes, 6 B. Monroe, 171,
181 ; James v. Morey, 2 Cowen,
246 ; Lewis v. Baird, 3 M'Lean,
56 ; Villard v. Roberts, 1 Strob-
hart's Equity, 393 ; Brown v.
Budd, 2 Carter, 442 ; Reed v.
Cole, 4 Indiana, 293; Parrott v.
Schaubhart, 5 Minnesota, 323 ;
Bossard v. White, 9 Richardson's
Eq. 483; Galpin v. Abbott, 6
Michigan, 17 ; Graves v. Graves,
6 Gray, 393. It is the obligation
of one party to register the grant
which renders it incumbent on the
other not to pass by an obvious
source of information ; and a pur-
chaser will not be deemed negligent
for omitting to look for that which
hecannot reasonably expect to find.
The law was so held in James v.
Morey, with regard to the assign-
ment of a mortgage, on the ground
that the debt is tlie principal
and tlie mortgage itself a mere ac-
cessory ; see Mott v. Clark, 9 Barr,
400.

Registration does not operate as
notice unless it is made in the way
and with the forms prescribed by
law. Where a statute or estab-
lished usage requires that deeds
and mortgages sliall be registered
in separate books, the registry of
a mortgage in the deed book is in-
valid, and vice versa, ante Grim-
ston V. Carter, 3 Paige, 421 ; Golo-
mer Y. Morgan, 13 Louis. Ann. 202 ;
Luch's Appeal, 8 Wright, 519;
Calderv. Chapman, 2 P. P. Smith,
539. See M'Lanahan v. Reeside,

206

NOTICE.

9 Watts, 511. In Luch's Appeal,
a certificate under seal, setting
farth that the person signing it had
deposited deeds for certain lots
designated by their number in the
town plot in which they were situ-
ate, " as collateral security for a
note," coupled with a contract
to convey the lots on failure
to pay the note " within a rea-
sonable time," was held to be a
mortgage, and invalid as such, be-
cause not recorded in the mortgage
book. Read, J., said : " Mortgages
must be recorded in ' mortgage
books,' and are not properly re-
corded in any other species of book
where they cannot be found by
means of the mortgage index."

It has also been held, that in-
struments which form parts of the
same transaction must be register-
ed together, and that a deed and de-
feasance entered in the same book,
but with several pages interven-
ing, is virtually an unregistered
mortgage, and therefore invalid
against subsequent judgments and
attachments, because a creditor
who consulted the registry for in-
formation, would presumably not
look beyond the absolute convey-
ance ; M'Lanahan v. Reeside.

In like manner a deed of land
situate in one county cannot be
eflfectually registered in another ;
Perrin v. Reed, 35 Vermont, 2 ;
Stewart v. M' Sweeny, 14 Wiscon-
sin, 68 ; Kerns.y. Swope, 2 Watts,
15 ; Astor v. Wells, 4 Wheaton,
406 ; St. John v. Conger, 40 Illi-
nois, 535 ; Stevens v. Brown, 3
"Vermont, 420 ; nor can the registry
of a copy be substituted for that of
the original. See Ladley v. Greigh-

ton, 20 P. P. Smith, 490. So a
purchaser need not take notice of
an instrument which does not ap-
pear to have been proved or ac-
knowledged in accordance with the
statute ; White v. Dinman, 1 Ohio,
N. S. 112 ; Shult8 V. Moore, 1 M'-
Lean, 521 ; Heister v. Fortner, 2
Binney, 40 ; Strong v. Smith, 3 Id.
362 ; Cockey v. Milne, 16 Mary-
land, 200 ; Herndon v. Kimball, "7
Greorgia, 432 ; Reynolds v. Kings-
bury, 15 Iowa, 238 ; Brinton v.
Seevres, 12 Id. 589 ; Browny. Lunt,
37 Maine, 423 ; Harper v. Reno, 1
Freeman, Ch. 323 ; Duphey v.
Frenaye, -5 Stewart & Porter, 215 ;
Garter v. Champion, 8 Conn. 548 ;
Sumner v. Rhodes, 14 Id. 135 ;
Oalt V. Dobrell, 10 Yerger, 146 ;
Hodgson v. Butts, 3 Cranch, 540 ;
De Witt V. Moulton, 11 Maine, 418*;
Halstead v The Bank of Ken-
tucky, 4 J. J. Marshall, 534 ; -Cha-
teau V. Jones, 11 Illinois, 300 ;
Sumner v. Rhodes, 14 Conn. 135 ;
Garter v. Champion, 8 Conn. 549 ;
Work V. Harper, 24 Mississippi,
424 ; Johns v. Beardons, 3 Mary-
land, Ch. 5t ; 5 Maryland, 81 ;
Gockey v. Milne, 16 Maryland,
200 ; Blood v. Blood, 23 Pick. 80 ;
Harper v. Reno, 1 Freeman Ch.
523 ; Chateau v. Jones, 16 Illinois,
300 ; Burney v. Little, 15 Iowa,
5T2. The question depends od the
intention of the Legislature, who
may provide that a formal defect of
acknowledgment shall not invali-
date the registry of a deed or
mortgage ; Gillespie v. Budd, 3
M'Lean, 31:7 ; Beedv. Kemp, lb.
16 Illinois, 445 ; Brown v. Smp-
son, 4 Kansas, 76 ; Allen v. Moss,
27 Missouri, 54 ; Watson v. Mer-

LE NEVE V. LE NEVE.

207

cer, 8 Peters, 88 ; Barnet v.
Barnet, 15 S. & R. 72; Tate
V. Shalfros, 16 Id. 35; Wallace
V. Moody, 26 California, 38Y ;
Hughes v. Cannon, 2 Humphreys,
589 ; or may cure such a defect
retroactively as between the par-
ties, though not against an ante-
cedent bona fide purchaser.

The registry of a deed is neces-
sarily inoperative as notice to the
holder of an antecedent right, and
hence notwithstanding the rule
that a paramount encumbrance on
land which is sold successively in
parcels is to be borne in the inverse
order of alienation, a mortgagee
need not search the record for
conveyances by the mortgagor,
before executing a release or
covenant by which the lien is
discharged as to a part of the
premises, and the whole burden
thrown on the residue ; Stuyuesant
V. Hone, 1 Sandford, 419; Stuy-
vesant v. Hall, 2 Barb. Ch. 151 ;
Taylor v. Maris, Exr''s, 5 Rawle,
51 ; post, notes to Aldrich v.
Cooper.

To make the registry of an in-
strument effectual, it must be
transcribed, if not literally, at least
with substantial accuracy. See
Wyattv. Barwell, 19 Vesey, 439;
Hughes v. Dehnam, 8 Jones, 12Y ;
and a material variance or omission
will render it invalid as against
subsequent purchasers and encum-
brances ; Miller v. Bradford, 12
Iowa, 14. The purchaser is not
chargeable with constructive no-
tice where the record, if consulted
would not be actual notice ; and a
mistake in the name of the grantor,
or the location of the premises,

is consequently fatal, unless the
error is patent from the instrument
as a whole ; Jenning v. Wood, 20
Ohio, 261. For a like reason, un-
less the entire instrument is re-
corded, no part of it is recorded
within the meaning of the statute ;
and hence where several writ-
ings are parts of the same transac-
tion, a failure to register one will
be a failure as to all. It follows
that when an absolute deed is ac-
companied with a defeasance, both
must be registered, and if they are
not, the deed will be virtually an
unregistered mortgage, and invalid
as such against a subsequent judg-
ment creditor of the grantor, or a
purchaser from the latter ; Freedly
V. Hamilton, IT S. & R. 10 ; Ed-
wards V. Turnbull, 4 Wright, 509 ;
Dey V. Dunham, 2 Johnson, Ch.
112; Hendrickson's Appeal, 12
Harris, 363 ; Jacques v. Weeks, 1
Watts, 261 ; Brown v. Dean, 3
Wend. 208 ; James v. Morey, 2
Cowen, 246. " A mortgage," said
Black, J., in Hendrickson's Appeal,
'' when in the shape of an absolute
conveyance, with a separate de-
feasance, the former being recorded
the latter not, gives the holder no
rights against a subsequent encum-
brancer. It is good for nothing as
a conveyance, because it is, in fact,
not a conveyance ; and it is equally
worthless as a mortgage, because it
does not appear by the record to
be a mortgage." It is not a suffi-
cient excuse for not complying
with this requisition that the equity
of redemption results from circum-
stances which do not appear in
writing, or from an oral agreement
to reconvey on receiving back the

208

NOTICE,

purchase-money, because the policy
of the law requires that the whole
transaction should appear for the
information of third persons ; and
withholding part of it may operate
as a fraud on creditors, by leading
them to suppose that the grantor
had parted with his whole estate
in the premises, and has no interest
that can be made available as a
ineans of payment ; The Manufac-
turers'' and Mechanics' Bank v.
The Bank of Penna. T W. & S.
335. It has been contended, said
C. J. Gibson, " that a verbal defeas-
ance could not be recorded. What
then ? This defeasance was not a
verbal one ; and, if it were, let
those who chose to lend on a form
of security which is incapable of
being made record notice take the
consequences. Better they should
shffer than the creditors should be
kept at bay by a deceptive appear-
ance given to the ownership of
their debtor's property. It might
bear an argument, whether a mort-
gage exhibited to the world as an
absolute deed would not be fraudu-
lent even.by the 13 Elizabeth. Be
that as it may, a mortgage thus
imperfectly recorded is void as an
unrecorded mortgage against sub-
sequent liens."

The dissenting opinion of Ken-
nedy, Justice, in Jaques v. Weeks,
1 Watts, 28'7 ; is a strenuous pro-
test against this doctrine, on tlie
ground that a failure to register a
defeasance under seal, ought not to
put the grantee in a worse position
than if the equity of redemption
arose from a parol contract, when
the case would clearly in his judg-
ment not be within the recording

acts, or that of an unregistered
mortgage.

The registry of a deed is not
notice to a subsequent purchaser,
unless the parties claim under
the same grantor ; or to speak
more accurately, through some one
who is a common source of title ;
Xeller v. Nutz, 5 S.& R. 246 ; Blake
v. Graham, 6 Ohio, N. S. 586;
Hethrington v. Clark, 6 Casey,
393, 395 ; Raynor v. Wilson, 6
Hale ; Brock v. Eeaden, 13
Alabama, 370 ; Dohie v. Gardner,
15 Id. 758 ; Long v. Dallorhid,
24 California, 218, 453 ; St. John v.
Conger, 40 Illinois, 473 ; Stuyve-
sant V. Hall, 2 Barbour's Ch. 151 ;
Murray v. Ballou, 1 Johnson, Ch.
556; Keller v. Nutz, 5 S. & R.
246 ; Lightner v. Mooney, 10
Watts, 412 ; Bates v. Norcross, 14
Pick. 224; Tilton v. Hunter, 24
Maine, 29 ; Crockett v. Maguire,
10 Missouri, 34 ; Liehy v. Wolf,
10 Ohio, 83 ; Whettinglon v. Wright,
9 Georgia, 23 ; Embury v. Conner,
2 Sandford, 98. If the titles are
distinct, the question is not which
was first recorded, but which is best.
They must not only be the same,
but it must so appear of record.
If A. conveys to B., who does not
register the deed, the registration
of a conveyance from B. to C. will
not be notice to a subsequent
purchaser from A. ; Hetherington
V. Wright; Cook v. Travis, 22
Barbour, 338 ; Roberts v. Bourne,
23 Maine, 165 ; Harris v. Arnold,
1 Rhode Island, 125 ; Lightner v.
Mooney, 10 Watts, 407 ; Fenno v.
Seger, 3 Alabama, 478; Losey v.
Simpso7i, 3 Stockton, 246. In like
manner, when the conveyance is

LB NEVE V. LE NEVE,

209

not registered, the registration of
a mortgage given by tlie grantee
for the purchase-money, will not
operate as notice either of the
mortgage or the deed ; Veazie v.
Parker, 23 Maine, 110 ; Pierce v.
Tnylor, lb. 246 ; Felton\. Pitman,
14 Georgia, 530. Under these cir-
cumstances, the thread of title is
broken, and the purchaser has no
clue in making the search. A de-
scent cast is not within this rule, and
the registration of a deed by an an-
cestor is notice to a purchaser from
the heir : Hill v. Meeker, 24 Conn.
211 ; Kennedy Y. Northrop, 15 Illi-
nois, 148 ; Rupert v. Mark, lb. 540 ;
though such a purchaser will not be
charged with notice, by the registry
of an unauthorized deed from the
executor of the person from whom
the title descended to the vendor ;
Blakey. Graham, 6 Ohio, N. g. 580.
And the decisions in some of the
states are that when an ancestor
eonvej^s, although bj' an unregis-
tered deed, no title will descend to
the heir and therefore, none can
pass from him to a subsequent bona
fide purchaser. See Wehb v.
Wilcher, 33 Georgia, 565 ; Harlan
Y. Seaton,\8 B. Monroe, 312; M'-
Gullough V. Eudaly, 3 Yerger,
346.

The rule that a bona fide pur-
chase will discharge a latent
equity or secret trust, applies in
favor of one who buys from the
grantee in an absolute deed with-
out notice of an unregistered
equity of redemption ; Jacques v.
Weeks, 7 Watts, 261, 211. But it
would seem that a purchaser with
notice, should stand in the shoes
of his vendor, and be postponed
VOL. II. — 14

as the assignee of an unregistered
mortgage, to the judgment credi-
tors of the original grantor. The
point was, nevertheless, deter-
mined the other way in Jaques v.
Weeks. There Knapp conveyed
absolutely to Crocheron by a
deed which was duly registered,
and Crocheron gave Knapp an un-
registered defeasance. The prem-
ises were subsequently sold under
a judgment against Knapp, and
purchased by the defendant, who
also received a deed from Knapp
for a valuable consideration.
Crocheron liad previously and be-
fore the judgment sold and con-
veyed the land to the plaintiff
Jaques. It appeared in evidence
that Knapp was in the actual and
exclusive possession of the premi-
ses at and after the date of his
conveyance to Crocheron, and
when the latter sold to Jaques.
The court were of opinion that
Knapp's possession was notice to
Jaques of his equity of redemption
under the defeasance, but not that
the defeasance was not duly regis-
tered. Rogers, J., said that posses-
sion by another than the grantor,
implied that such possessor had
some claim or title to the land.
Jaques might consequently be con-
sidered as having notice of Knapp's
claim as mortgagor by virtue of the
defeasance. It did not follow that
he thereby also had notice that the
defeasance was not recorded. This
would be to heap presumption on
presumption ; to infer that there
existed a defeasance, and also that
such defeasance was not recorded.
In the absence of any actual no-
tice, the presumption would rather

210

NOTICE.

be, that as such instruments were
invalid if not recorded, Knapp had
done what the law required to
give validity to the title which he
held. The fact that it was not re-
corded was not notice of that fact
.to Jaques, because, as he did not
know of its existence, he could not
be expected to search for it. The
result was that while the defend-
ant's title as a piurchaser under the
judgment against Knapp, would
have been valid against Croch-
eron as the holder of an unregis-
tered mortgage, it was not valid
against Jaques, who took the fee
simple subject to the equitj' of re-
demption, and might consequently
hold the premises until the amount
advanced by Crocheron to Knapp
was repaid with interest.

All that can be reasonably re-
quired of a purchaser is to follow
up the stream of title as it appears
of record, and ascertain that it
descends in an unbroken line. If
such an examination shows that
the vendor acquired a good right
to convey, which he has done
nothing to impair, no anterior act
on his part should be allowed to
affect the purchaser. What those
under whom he claims did before
they severally acquired the title, is
irrelevant, and need not be made a
subject of inquiry. And in de-
termining when the interest of
each one of them accrued, and
when he parted with it, the pur-
chaser may relj' on the record,
unless lie has express or implied
notice that it is not a safe guide.
The weight of authority accord-
ingly is that the search for deeds
and encumbrances need not be car-

ried further back as against the ven-
dor, than the period in which the
title vested in him, as disclosed of
record ; The Farmers^ Loan Go. v.
Maltby, 8 Paige, 361 ; Calder v.
Chapman, 2 P. P. Smith, 359 ;
see Buckingham v. Hanna, 2
Ohio, N. S. 561. In The Loan
Co. V. Maltby, an equitable inter-
est arising under an unregistered
contract of sale was mortgaged by
an instrument which was forth-
with recorded. The mortgagor
afterwards acquired the legal es-
tate by a duly registered deed, and
conveyed it to the defendants for a
valuable consideration. It was
held, that the registry of the
mortgage being anterior to the
period at which the recorded title
vested in the mortgagor, was in-
valid.

The chancellor said that it ap-
peared from the answer that the
mortgagor had not the legal title
to the premises, but that he had a
contract to purchase from Squires,
which he consummated by obtain-
ing a deed previous to the convey-
ance to the defendants. It followed
that the defendants were not charge-
able with constructive notice of the
mortgage. In taking the convey-
ance, they would not search for
mortgages by the grantor prior to
the date of his deed from Squires.
Nearly the same ground was
taken in Doswell v. Buchanan, 3
Leigh, 381. There, Hopkins hav-
ing an equitable estate under an
unrecorded agreement, which was
not registered, executed a deed of
trust to Buchanan, which was duly
registered. He subsequently ob-
tained a convej-ance of the legal

LE NEVE V. LB NEVE,

211

title, and conveyed it to ttie plain-
tiff, Doswell. It was held not to
be incumbent on the plaintiff to
examine the record for deeds or
mortgages by Hopkins before the
title vested in him of record, and
that the deed of trust was invalid
against the plaintiff. Conceding
that it was his duty to search the
record show far ought that search
to be carried ? Assuredly, not be-
yond the period at which the legal
title vested in the vendor. Sup-
pose him to take the advice of
counsel ; he would call for the
chain of title ; he would examine
the decree of September, 1808, di-
recting the title to be made to
Hopkins, and the deed made in
virtue of this decree of the 2d
December, 1810; and seeing that
the title of Xelson was by this
deed conveyed to Hopkins, he
would look from this date down to
the time of consultation, to see
whether there were any encum-
brances. This is all that could,
with any show of reason, be re-
quired of him; but this would
never lead him to the deed of trust
of May, 1808, made by Hopkins
to Buchanan, and purporting to
convey the legal estate, when
Hopkins had no such estate in
him, and to impute to him a notice
of this because it was put on
record, would be wholly incon-
sistent with equitable principles
generally, or the particular ground
of favor on which a fair purchase
stands in that forum.

A similar decision was made in
Galder v. Chapman. There, Cal-
der mortgaged land which he did
not own. The mortgage was reg-

istered, and he subsequently pur-
chased the land from Chapman.
A judgment was then entered
against Calder, under which the
premises were sold by the sheriff.
The court held the registry of
mortgage to be invalid, and that
it did not operate as notice to the
purchaser. Read, J., said : " That
the search for deeds or mortgages
against Calder, would begin with
his title from Chapman, and the
search beyond would be against
Calder. It would be futile to
cover the same period with a
double search, when the title
could only be in one person at a
time. There was no hardship on
the mortgagees, because an exami-
nation of the title must have
shown them that Calder had no
estate in the premises ; and it
would be unjust that the plaintiff
should suffer for their negligence
in trusting to a security which did
not exist."

It has, nevertheless, been held
in Termont, Massachusetts, and
some of the other States, that
where one conveys land which he
does not own, with warranty, and
afterwards acquires the title, it
passes eo instanti by estoppel; 2
Smith's Lead. Cases, 101,7 Am. ed.
There is consequently nothing on
which a subsequent grant can
operate ; and it will not confer a
title on the grantee, although he
may have given value without no-
tice of the prior deed ; Jarvis v.
Aikens, 25 Vermont, 635 ; White
V. Patten, 25 Pick. 324.

This course of decision seems
to be at variance with the policy of
the registry acts, and the well es-

212

NOTICE.

tablished rule, nemo plus juris ad
alium irans/erre potest quare ipse
habet. A purchase froni one who
has no right to convey, is invalid,
and should not be set up on tech-
nical grounds against a grantee
who gives value after the vendor
has acquired a title ; Calder v.
Chapman, 2 P. F. Smith, 359;
Bioins v. Vanzant, 15 Georgia,
521 ; Way v. Arnold, 18 Id. 181;
Fairchild v. Jordan, lb. 352 ;
Rawle on Covenants for Title, 434,
4 ed.; 2 Smith's Lead. Cases, 109,
7 Am. ed. And there is a manifest
inconvenience in requiring a pur-
chaser to search the record indefi-
nitely against everj;- one, who has
at any time held the estate for a
period however brief The utmost
effect which can be given to a
grant by one who has no title, is
that of a contract to convey, and
it is therefore necessarily inopera-
tive as against a subsequent bona
fide purchaser ; Lloyd v. Lloyd,
4 Drury & Warren, 369 ; 2 Con-
nor & Lawson, 598.

It has been held in Pennsylva-
nia, that a judgment against one
who has an equitable interest
under an agreement to convey, is
binding on a purchaser from the
defendant in tiie judgment after
he has acquired the legal estate,
although the agreement is not reg-
istered, and there is nothing to
inform the purchaser that it is
material to search for deeds or
encumbrances against the vendor
before the title was conveyed to
him of record ; Lynch v. Dearth,
2 Penna. 101 ; Foster's Appeal, 3
Barr, "79, ante, 44. These cases are
hardly reconcilable witii the prin-

ciple advanced in Calder v. Chap-
man.

Agreeably to the authorities in
New York, where a grantor con-
veys the same land successively to
different persons, and the second
grant is first recorded, the subse-
quent registration of the first deed
is not notice to the grantee in the
second, but is notice to a subse-
qirent purchaser from him, who
consequently takes the risk of his
vendor's having bought with notice
of the prior grant ; Jackson v.
Posi!,9Cowen,120; 15 Wend. 588;
Van Rensselaer v. Clark, 17 Id.
25.

These decisions eountervene the
rule that it is not requisite to
search for conveyances from two
persons during the same period.
A purchaser who finds a duly
executed and recorded deed from
the person to whom the property
originally belonged, need look no
further as it regards him, and may
confine the searche exclusively to
the grantee until a similar grant is
found from him, and so through
the successive holders of the title
down to the immediate vendor.
The better opinion therefore, is,
that as the registration of a prior
deed does not relate back to its
date as against an intermediate
grantee whose deed has been duly
registered, so it will not operate
as notice to those claiming under
him subsequently as creditors and
purchasers, ante, 41, Connecticut \'.
Bradish, 14 Mass. 296; Ely v.
Wilcox, 20 Wisconsin, 530. In
Ely V. Wilcox, the court said, it is
held " in Massachusetts that in
searching the title it is not neces-

LE NEVE V. LE NEVE.

213

sary to search the record as against
an antecedent grantor of the land,
further than the registry of a deed
duly executed by him, and that
■when such a deed has been regis-
tered, a purchaser under the gran-
tee -will not be affected with notice
of a prior deed recorded subse-
quently, but before the period of
his purchase ; Trull v. Bigelow, 16
Mass. 418 ; Somes v. Brewer, 2
Pick. 184 ; and the reason given is,
that when a purchaser is examin-
ing his title in the registry of deeds,
and finds a good conveyance to his
grantor, he is not expected to look
further. . . . The case of Day
V. Clark, 25 Yt. 402, lays down
what seems to us the more reason-
able rule, that the record of the
prior deed after the second, is no-
tice to a purchaser from the vendee
in the second that there is such
prior deed, but the record thereof
is no notice that the vendee in the
second deed at the time be received
it, had notice of the first deed, and
without such notice the title of the
purchaser from the vendee in the
second, but first recorded deed,
would not be affected by the fraud
or knowledge of his vendor. Ante,
41.

It is an established rule, that
notice of an existing equity is
binding on a purchaser, however
good his right may be in other re-
spects. A deed which from a de-
fective execution does not pass the
legal title, is, nevertheless written
evidence of a contract to convey ;
see Davis v. Earl of Strathmore,
16 Vesey, 419, 428 ; and gives rise
to an equity which a purchaser
with notice is not at liberty to dis-

regard. See Jacques v. Weeks, Y
Watts ; Harper v. Beno, 1 Free-
man Ch. .323. It were, said Lord
Hardwicke, a mischievous thing,
if a person taking advantage of
the legal form appointed by an act
of Parliament, might, under that,
protect himself against a person
who had a prior equity of which he
had notiL'C, ante, 114. Whether the
statute speaks of bona fide pur-
chasers, or simply of purchasers,
the construction is the same, and
good faith an indispensable requi-
site ; Benton v. 5t«rgroW, 10 Johnson;
VanBensselaerv. Clark, 1*1 Wend.
25. It follows, that an unregistered
deed or mortgage is invalid against
a purchaser with notice ; Jackson
V. Sharp, 9 Johnson, 163 ; Jack-
son V. Leek, 19 Wend. 339 ; Farns-
worth V. Ghilds, 4 Mass. 637 ;
Warnock v. Wightman, 1 Brevard,
331 : Van Meter v. M'Fadden, 8
B. Monroe, 442 ; Schutt v. Large,
6 Barbour's S. C. R. ST3 ; Porter
V. Cole, 4 Maine, 20 ; Doe v. Reed,
4 Scammon, IIT ; Bupert v. Mark,
15 Illinois, 542; Boss v. Hole, 27
Id. 108 ; The Ohio Life Ins. Co.
V. Ledyard, 8 Alabama, 866 ; Mar-
tin V. Sale, 1 Bailey's Equity, 1 ;
Jackson v. Paige, 4 Wend. 385 ;
Tuttle V. Jackson, 6 Id. 213 ;
Parker v. Jackson, 11 Id. 442;
Jackson v. Sharp, 1 Johnson, 466 ;
M' Raven v. M'Guire, 9 S. & M.
34 ; Pike v. Armstead, 1 Dev.
Equity, 110 ; Ingrem v. Phillips,

3 Strobhart, 565 ; Knott v. Guyger,

4 Richardson, 32 ; Copeland v.
Copeland, 28 Maine, 255 ; New-
man V. Chapman, 2 Randolph,
93 ; Fowke v. Woodward, 1 Speer's
Ch. 233 ; Bailey v. Wilson, 1 Dev.

214

NOTICE.

& Bat. Ch. 32; Ten Eyck v.
Simpson, 1 Sandford, Chancery,
242 ; Warren v. Scott, 1 1 Foster,
332 ; Parker v. Kane, 4 Wiscon-
sin, 1 ; Draper v. Bryiton, 11 Mis-
souri, 11 ; Smith V. Hall, 28 Ver-
mont, 364 ; Gorlesn v. Corlesa, 8
Id. 4Y3 ; Vendal v. Malone, 25
Alabama, 212; Woodworth v. Guz-
man, 1 California, 203 ; War-
burton V. Lauman, 2 Iowa, 420 ;
Gilbert v. Burgott, 10 Johnsbn,
451 ; Van Rensselaer v. Clark,
11 Wend. 25; Gorrey v. Gaxton,
4 Binney, 140, 146; Sirowd v.
Lockhart, 4 Dallas, 153 ; Jacques
V. Tf'Je/ts, 1 Watts, 261 ; T/i.e
Manufac. and Mechanics'' Bank
V. TAe Bank of Pennsylvania, 1
W. & S. 335; Solms v. M'Cul-
lough, 5 Barr, 413 ; ilf' Gabnont
V. Patterson, 39 Missouri, 100 ;
Galdwell v. fieac^, 11 Id. 561;
Gulland v. Jackman, 26 California,
19 ; Stewart v. SoZZ, 3 B. Monroe,
218; Warj-en v. SweW, 31 New
Hampshire, 332 ; Nute v. iV^wfe,
41 Id. 60. The doctrine is con-
fined in England to the court of
chancerjr ; Doe v. Alsop, 3 B. &
Aid. 25 ; but it is administered in
this country in the ordinary course
of legal procedure, on the ground
that either jurisdiction may relieve
agaiust fraud ; Tuttle v. Jackson,
6 Wend. 213, 221 ; Britton's Ap-
peal, 9 Wright, 112. In Blades v.
Blades, 1 Eq. Ca. Abr. 358, pi. 12,
ante, 115, Lord Chancellor King ob-
served,that a subsequent purchaser
with notice, " getting his own pur-
chase first registered, was a fraud,
and that the court would never
suffer any act of parliament made
to prevent fraud to be a protection

to fraud." " This, said Lord Hard-
wick in Le Neve v. Le Neve, " is a
species of fraud, and dolus malus,
for he knew that the first pur-
chaser had the clear right of the
estate, and after knowing that, he
takes away the right of another
person by getting the legal estate."
The rule results in some of the
states as one of law from the
language of the registry acts,
which in Massachusetts withhold
the right to set aside unregistered
deeds and mortgages from persons
having notice, and in New York
and Virginia, confer it exclusively
on bona fide purchasers. See
Grimstone v. Carter, 3 Paige,
421 ; Lawrence v. Stratton, 6
Gushing, 163 ; Knotts v. Geiyer,
4 Richardson, 32 ; Draper v. Bry-
son, 11 Missouri, 11 ; Tuttle v.
Jackson, 6 Wend. 213. But it is
deduced in others, where the stat-
utes avoid unregistered deeds
without any qualification, from
the principle laid down by Lord
Hardwick, that the Legislature
will not be supposed to have in-
tended that title should be ac-
quired through a wilful disregard
of good faith and fair dealing. In
Pennsylvania, by the act of May
28th, 1115, "no deed or mortgage,
or defeasible deed, of the nature of
a mortgage, shall be good or suf-
ficient to grant or pass any free-
hold or inheritance, or any estate
therein for life or years, unless
such deed be acknowledged or
proved, and recorded within six
months after the date thereof ; "
while it was enacted in March,
1115, that " every deed and con-
veyance which shall not be proved

LE NEVE V. LE NEVE.

215

and recorded as aforesaid, shall
be adjudged fraudulent and void
against any subsequent purchaser
or mortgagee for valuable con-
sideration." Yet it has been in-
variably adjudged by the courts of
that State, that purchasers with-
out notice are alone entitled to
the benefit of these statutes ; Brit-
ton's Appeal, 9 Wright, 1Y2, 115 ;
and the same course is pursued in
Maryland and Rhode Island, under
Acts which, like those in Penn-
sylvania, are modelled on the
statute of 27 Henry 8, for the en-
rolment of bargains and sales or
that of the 7 Anne, c. 20 ; ante, 112.
The subject is, nevertheless,
within the control of the legislature,
who may enact that the equity aris-
ing from notice shall not be a sub-
stitute for registration ; and when
such a rule is laid down in terms,
or by a necessary implication,
it must be observed by the courts ;
White v. Denman, 1 Ohio, N. S.
110; Bloom v. Noggle, 4 Id. 45.
See Fleming v. Burgan, 2 Iredell,
Eq. 584. This interpretation is
given in Ohio to the statutes of
that state, which provide that
mortgages shall take effect from
the time they are recorded ; Stan-
sell v. Boberts, 13 Ohio, 148 ; May-
ham V. Coombs, 14 Id. 428 ; Jack-
son V. Luce, lb. 514 ; Holliday v.
The Franklin Bank, 16 Id. 533.
In Mayham v. Coombs, the court
endeavored to strengthen this con-
clusion by an appeal to general
principles. It was said that, as
between creditors priority depends'
on diligence ; each having an equal
right to be fiirst in the race. If
one who had obtained an advantage,

lost it by not taking the requisite
steps to perfect the lien, another
might conscientiously take ad-
vantage of the slip. Hitchcock, J.,
observed, " The contention is, that
a subsequent mortgagee with no-
tice, defrauds the prior mortgagee,
by putting his mortgage first upon
record. In one sense of the word,
perhaps he does, but there is no ac-
tual fraud. Take an instance : A.
and B. are creditors of C. ; the
debts are equal, and suflScient to
sweep away the entire property of
the debtor ; A. seeks his opportu-
nit}', and for the security of his
debt, procures a mortgage upon
the entire property of C. ; when he
does it, he knows of the debt of
B., and knows, further, that his
mortgage will entirely defeat the
collection of that debt. Now, in
the common acceptation of the
term, and according to the ideas
of the profession, here is no fraud.
True, B. is deprived of the collec-
tion of his debt, but there is no
fraud. A. is the vigilant creditor ;
he only took the mortgage to se-
cure what was honestly his due.
But change the case. A., after
having procured his mortgage, be-
comes negligent ; be does not place
it upon record ; B., knowing the
existence of that mortgage, but
equally anxious to secure his debt,
procures a mortgage, and places it
upon record. All cry out, here is
a fraud. Now, my perceptions
are so obtuse, that I can perceive
no difference, in a moral point of
view, in the actions of these two
men. They are both creditors,
and both equally anxious to secure
their debts. They pursue the

216

NOTICE,

course pointed out by law to effect
their object. The one is the most
vigilant to get his recorded. The
course of neither is in accordance
with the principles of abstract jus-
tice. Such justice would require,
that, inasmuch as the property was
not sufficient to pay both, it should
be equally divided between them."
This reasoning, at best, only ap-
plies where the second mortgage is
given for an antecedent debt.
Where a loss must fall on one of
two innocent persons, each may
take any fair means to secure him-
self. The doctrine of tacking de-
pends on this principle, and is not,
when rightly considered, repug-
nant to natural equity; vol. 1, 851.
But the case is widely different
where money is lent on a mortgage,
with notice that the premises are
subject to a prior incumbrance.
Here the creditor voluntarily causes
a result, which must be prejudicial
to the prior encumbrancer or to him-
self, and should, on every rule of
equity, be the one to suffer from a
dilemma which it was in his power
to avoid. See Swigert v. The
Bank of Kentucky, 1TB. Monroe,
268, 289. And it may be observed
that even when such a security is
taken for an antecedent debt, it is
a fraud in the debtor to mortgage
property which he has already
pledged, unless it is expressly or
impliedly understood that the
second incumbrance shall be sub-
ject to the first. If such an un-
derstanding exists, the creditor is
bound ; if it does not, he is an ac-
complice in the wrongful act of
the debtor. The case of Mayham

V. Goombs must, therefore, be re-
garded as standing on the terms
of the statute, and would otherwise
be at variance with well established
principles. See White v. Denman,
16 Ohio, 59; 1 Ohio, N. S. 110;
Bloom V. Noggle, 4 Id. 45.

It is held that where the same
estate or interest is conveyed or
pledged successively to different
persons, and the second purchaser
has notice of the first grant or
mortgage, and the third of the
second, but not of the first, the
first purchaser will have priority
over the third to the extent of the
right or interest conveyed to the
second, because the third pur-
chaser cannot hold his ground
against the second, and he in his
turn must yield to the first. See
Pomfret v. Lord Windsor, 2 Vesey,
412, 486 ; Wilcox v. Wain, 10 S.
& R. 380. In The Manufacturers^
Bank v. The Bank of Pennsylva-
nia, T W. & S. 335, land which had
been mortgaged with notice of a
prior unregistered mortgage, was
sold under a subsequent judgment,
and the proceeds paid in by the
sheriff, and it was decided that as
the fund did not exceed the amount
due on the second mortgage, it
should be awarded to the first
mortgagee. The court cited and
relied on Wain v. Wilcox. There,
a judgment, which would other-
wise have been postponed to a sub-
sequent judgment in favor of the
United States, was held to be pro-
tected by an intervening mort-
gage. Tilghman, C. J., said that the
United States could not take the
fund from the mortgagee, nor

LE NEVE V. LE NEVE.

217

could lie -withhold it from the judg-
ment creditor. It must, therefore,
be awarded to the latter.

The rule that notice of an un-
registered deed binds the con-
science of the purchaser, is founded
on tlie injury done to the prior
grantee, and does not apply where
heisnot prejudiced. It follows that
a mortgage may be substituted
after notice for the lien of a par-
amount judgment, because such an
exchange benefits the parties to
it without impairing the right con-
ferred by the unrecorded grant.
It is merely formal, and leaves
the prior grantee exactly where he
stood in the first instance ; Whea-
ton V. Byr, 15 Conn. .307. Waite,
J., said : " Wherever the imputa-
tion of fraud is removed, the rule
does not apply. Thus, if a per-
son were induced to loan his
money, upon an agreement that he
should be secured by a mortgage
of certain lands, he would not be
deprived of his security, by notice
of an outstanding unrecorded deed,
given him after he had parted
with his money, and before he had
obtained his mortgage deed. Under
such circumstances, he would not
be chargeable with fraud in per-
fecting the security. The case
would be different, if he had the
notice before parting with his
money, or in time to reclaim it."

A mortgage for an antecedent
debt is valid in Ohio as against
an unregistered deed ; Anketel v.
Converse, IT Ohio, N. S. 11. But
this is contrary to the general
rule, under which the purchaser
must have given value, or changed

his position for the worse in some
other way; ante, 75.

It was held at one period in
England, that nothing but the
actual notice which is equivalent
to knowledge, and justifies an in-
ference of fraud, can postpone a
purchaser for value to one claim-
ing under an unregistered deed.
" Apparent fraud, or clear and un-
doubted notice, is a proper ground
of relief," said Lord Hardwicke,
in Bine v. Dood, 2 Atk. 275, " but
suspicion of notice, though a
strong suspicion, is not sufficient
to justify this court in breaking in
upon an act of Parliament." So in
Jelland v. Stainbridge, 3 Yesey,
478, the Master of the Rolls re-
gretted that the statute had been
broken in upon by parol evidence,
and thought with Lord Hardwicke
in Hine v. Dodd, that the' pro-
visions of the registry act could
not be set aside on any ground
short of actual fraud. " The
registry is not conclusive evi-
dence ; but it is equally clear,
and must be satisfactorily proved,
that the person who registered the
subsequent deed must have known
of the person having the prior
deed, and knowing that, registered,
in order to deprive him of that
title he knew at the time was in
him."

It was held in like manner in
Wyatt V. Barwell, 19 Vesey, 435,
that the constructive notice arising
from a lis pendens will not charge
a purchaser with notice of an unreg-
istered deed, or preclude him from
insisting on the letter of the statute ;
and Sir William Grant observed.

218

NOTICE.

that it was only where the notice
is actual and so clearly proved as
to make it fraudulent to take and
register the subsequent convey-
ance, that the court will suffer it
to be postponed. But the border
line between actual and construc-
tive notice is so fine, that it is not
always easy to apply this distinc-
tion, and it seems to have been
lost sight of in the later English
decisions, which apply the same
rule with regard to notice in cases
under the recording acts as in
other cases ; See Whitehead v.
Boulnois, 1 Young & Collier, 303 ;
Williamson v. Broivn, 15 New
York, 354, 357 ; and a similar diver-
sity exists in the United States,
where the courts have fluctuated
between the refinements of con-
structive notice, and the down
right rule that a purchaser shall not
be denied the benefit of the regis-
try acts, short of fraud. Thus in
Norcross v. Wedgery, 2 Mass. 505,
Chief Justice Parson said " that
when the second purchaser has
notice of the first conveyance, the
intent of the statute is answered,
and his purchasing afterwards is a
fraudulent act. This notice may
be expressed, or it may be implied
from the first purchaser being in
the open and exclusive possession
of the estate," and yet went on to
hold that " when an unrecorded
conveyance is to be supported on
the ground of fraud in the second
purchaser, the fraud must be very
clearly proved." The dicta in
M'Meechanv. Griffing, 3 Pick. 148,
are to the same effect. In Dey v.
Dunham,^ Chancellor Kent, was
of onlnion that the notice must

be such as to convict the subse-
quent purchaser of fraud, and the
same view was taken in Jackson v.

Van Valkenburgh, 8 Co wen, 260,
and again vindicated in Fleming
V. Burgen, 2 Iredell Eq. 584.

It is well settled in like manner
in Maryland, in accordance with

Wyatt V. Barwell, and under a
statute which enacts that " no
estate of freehold or inheritance
shall pass, unless the deed convey-
ing the same shall be acknowledged
and recorded," that the notice
must be so clear and express as to
render it fraudulent to "take and
register a conveyance in prejudice
of the known title of the person
holding the prior unregistered con-
veyance;" The U. S. Ins. Co. y.
Shriver, 3 Maryland Ch. 385 ;

The General Life Ins. Co. v. The

U. S. Ins. Co., 13 Maryland, 517,
525. The language held by Story
in Flagg v. Mann, 2 Sumner, 486,
587, favors the same view.

So where the terms of the statute
were, that no deed of trust or
mortgage shall be valid at law to
pass any property as against credi-
tors or purchasers for a valuable
consideration, but from the registry
of such deed, the court were clear
that if notice could supply the
place of registration, it must be
actual, and so distinctly proved as
to leave no doubt that the pur-
chaser was chargeable with fraud ;
Fleming v. Burgen, 2 Iredell Eq.
84.

" In Le Neve v. Le Neve, 3
Atkins, 646," said Ruffln, C. J.,
" Lord Hardwicke laid down the
rule, which has since been followed,
that notice of an existins: unregis-

LB NEVE V. LB NEVE.

219

tered deed bound one who took a
subsequent one, and first registered
it. That, certainly, tended to sub-
vert the register acts, as allowing
parol evidence to show that knowl-
edge of the deed in pais which
could be derived from the registra-
tion, and it would effectually sub-
vert them, if, as in ordinary cases
of notice of a prior equit}', a notice
of anything that would lead to in-
quiry, were held to be sufficient
notice. Fortunatelj"-, a ease came
before the same great judge which
called for his opinion on that point ;
Hine v. Bodd, 2 Atkins, 2T5. In it
he informs us, that as the act of par-
liament was positive, and made to
prevent perjury from contrariety
of evidence, he could not overturn
the act upon suspicion, but only
for apparent fraud. He says, the
only cases that had been decided,
were cases of fraud, though he
adds, that possibly there may have
been others upon notice divested
of fraud, but then the proof must
be extremely clear. He, therefore,
qualifies the rule that fraud is
necessary, by the expression, ' or
clear and undoubted notice,' which
can mean no less than a full knowl-
edge of the contents of the deed,
and that the person omitted to
register it merely from inattention
or inability, and not because he
has abandoned it, and does not
mean to register it at all. For, in
that case, though his Lordship de-
clared ' the answer loose,' and that
there were strong circumstances of
notice, he yet dismissed the bill
upon that part of the case. That
the doctrine of that case is cor-
rectly understood as here repre-

sented, is, we think, clearly to be
collected from what has been said
in subsequent cases, after the sub-
ject had been long and thoroughly
considered. In Wyatt v. Barwell,
19 Vesey, 435, the Master of the
Rolls, after mentioning the doubts
entertained of the propriety of
having suffered the question of
notice to be agitated against one
who had registered his deed, pro-
ceeds to state what he considered
the rule, thus : — The courts have
said, we cannot permit fraud to
prevail, and it shall only be in
cases where the notice is so clearly
proved as to make it fraudulent in
the purchaser to take and register
a conveyance in prejudice of the
known title of another, that we will
suffer the registered deed to be
affected. Even with that limitation,
he thought the efficacy of the
register acts considerably lessened,
as no one can tell what may truly
or falsely be given in evidence, or
what may be the effect of the evi-
dence in the mind of the judge.
But finally, he concludes by saying
that ^ it is only by actual notice,
clearly proved, that a registered
conveyance can be postponed, and
that even a lis pendens will not
amount to notice for that purpose.
Again, in the previous case of
Jelland v. Stainbridge, 3 Vesey,
jun. 478, regret is expressed that
the statute had been broken in
upon by parol evidence, and the
satisfaction of the judge, that Lord
Hardwicke, as he understood him,
had in Hine v. Bodd, said, that
'nothing short of actual fraud
would do.' And what the Master
of the Rolls deemed fraud in this

220

NOTICE.

case, we cannot misunderstand,
when we find him sayihg, ' it is
clear that it must be satisfactorily
proved, that the person who regis-
ters the subsequent deed must have
known the situation of the perscms
having the prior deed, and know-
ing that, registered, in order to
defraud them of that title he knew
at the time was in him.' These
eases leave no doubt of the kind
of notice, or fraud on the prior en-
cumbrance which will reinstate
him in his preference. It is called
sometimes ' actual notice ' to be
clearly proved, and sometimes
' exact knowledge ' of the situation
of the parties. From which it
would seem to follow, that such
notice of the contents of the in-
strument, as to the subject and
purposes of the conveyance, and of
the intention to relj' on it as a
convej'ance, must substantially
reach the partj' in pais, as would
be derived upon these points from
the registry itself. We do not
mean that information precisely
correct as to everything conveyed,
or as to the amount of each debt
secured, would be necessary to
give any effect to the deed, but
that, at most, it could only be set
up against the subsequent pur-
chaser for such purposes as it was
distinctly represented to him as in-
tended to eflfect.

It was said in like manner, in
Siter V. 3PClanachan, 2 Grattan,
313, by Baldwin, J., that "the no-
tice must be such as to affect the
conscience of the subsequent pur-
chaser or incumbrancer. It may
be either actual, in other words,
direct and positive, or it may be

circumstantial or presumptive.
But it is not sufficient if it merely
puts the party upon inquiry. It
must be so strong and clear as to
fix upon him the imputation of
" mala fides."

In Dey v. Dunham, 2 Johnson,
168, Chancellor Kent relied on
the dicta of Lord Ilardwicke in
the principal case, as establishing
that the notice under the registry
acts must be such as to convict the
subsequent purchaser of fraud ;
and the same rule was laid down
in Jackson v. Van Vallcenhurg, 8
Cowen, 260. When, however, the
question was brought before the
Court of Appeals, in Jackson v.
Tuttle, 6 Wend., these decisions
were overruled, and constructive
notice of an unregistered deed
held to be not less binding than
actual. The law is now established
on this basis in New York, Penn-
sylvania, Kentucky, Illinois, Ver-
mont, and some of the other
states ; Williamson v. Brown, 15
New York. In the language of
Chancellor Walworth, in Grin-
stone V. Carter, 3 Paige, there is
no distinction in this regard be-
tween a purchaser in good faith,
under the recording act, and that
of a bona fide purchaser, within the
decisions of courts of equity in
other cases ; and the same view was
taken in Williamson v. Brown.

Agreeably to this course of de-
cision, the failure to register a deed
or mortgage may be supplied by
the constructive notice arising
fiom possession ; Watkins v. Ed-
wards, 23 Texas, 443 ; Ponton v.
Ballard, 24 Id. 19; ante; Krider
v. Lafferty, 1 Wharton, 303 ;

LE NEVE V- LE NEVE.

221

Randall v. Silverthorn, 4 Barr,
1Y3 ; Rupert v. Mark^ 15 Illinois,
540 ; Griswold v. Smith, 10 Ver-
mont, 452 ; Landis v. Brant, 10
Howard, 348 ; from a recital in
an instrument forming a link in the
chain of title, ante, 190; from a lis
Ijendens, ante, 193 ; or by proof of
any fact or circumstance putting the
subsequent purchaser on inquiry,
and affording him the means of
information. See Williamson v.
Brown, 15 New York, 354; Si-
gourney v. Munn, Y Conn. 324,
ante, 162.

Much of this seeming conflict of
opinion is apparent rather than
real. The registry acts, although
in pari materia, are not the same.
The act of Parliament, under con-
sideration in the principal case,
was absolute, that " every deed or
convej'auce shall be adjudged
fraudulent and void against any
subsequent purchaser or mort-
gagee, unless such memorial
thereof be registered." The statutes
of Rhode Island, Maryland, and
Nortli Carolina are substantial!}' to
the same effect, and so was the col-
onial statute of William III., con-
sidered in M'Mechan v. Griffing.

The decisions on these acts are
not in point, where as in New York
and Virginia, it is expressly' or
impliedly provided that onlj^ bona
fide purchasers shall take advan-
tage of the want of registration ;
Hawkinson v. Barbour, 29 Illinois,
80 ; Dickinson v. Braden, 30 Id.
2T9 ; Colby v. Kinniston, 4 New
Hampshire, 262 ; Brown v. Ander-
son, 1 Mbnroe, 198 ; Buck v. Hol-
loway's Devisee, 2 J. J. Marshall,
180 ; Eopkins v. Garrard, 1 B.

Monroe, 312; Colby v. Kenniston,
4 New Hampshire, 262; Troulp
V. Hurlbut, 10 Barbour, 354; Kri-
der V. Lafferty, 1 Wharton, 303 ;
Webster v. Maddox, 6 Maine, 256 ;
Knox V. Plummer, 7 Id. 464 ;
Griswold v. Smith, 10 Vermont,
452 ; Walker v. Gilbet-t, 1 Free-
man, 85 ; Rupert v. Mark, 15 Illi-
nois, 540 ; Morrison v. Kelly, 22
Illinois, 610 ; Doyle v. Teas, 4
Scammon, 202 ; Baynard v. Nor-
ris, 5 Gill, 483 ; Price v. McDon-
ald, 1 Maryland, 403; Wyatt v.
Elam, 19 Georgia, 335 ; Burkhal-
ter V. Ector, 259 ; Id. 55.

" One of the earliest, if not the
first, of the English recording acts,"
said Comstock, J., in Williamson
V. Brown, " was that of 7 Anne,
Ch. 20. That act differed from our
general registry act in one impor-
tant respect. It did not, in terms,
require that the partj' to be pro-
tected by the act should be a bona
fide purchaser. Its language was :
" And that every such deed or
convej'ance that shall at any time
after, &c., be made and executed,
shall be adjudged fraudulent and
void, against any subsequent pur-
chaser or mortgagee for valuable
consideration, unless," &c. He
went on to observe, that the Eng-
lish judges had at first some diffi-
culty in allowing any equity, how-
ever strong, to control an act of
Parliament, and their scruples had
influenced the earlier decisions in
New York, where the statute was
differently worded.

These remarjis do not apply in
Pennsylvania, where the provincial
statute of 1715 was framed after
the statute of 32 Henry VIII., for

222

lOTICB.

the enrolment of bargains and
Bales, while that of I'll 5 is substan-
tially a transcript of the "I Anne,
20, ante, 112. These acts do not
require the subsequent purchase
to be made in good faith or with-
out notice, but that it shall be for
value. So the act of March 25th,
1820, provides explicitly and with-
out qualification, that mortgages
shall have priority from the time
of registering the same, and yet
the Pennsylvania decisions agree
with the recent course of Eng-
lish decision, that constructive no-
tice of an unregistered deed or
mortgage is bind ing on a purchaser,
although he is not chargeable with
conscious fraud.

Actual notice is now requisite
by statute, or under the course of
judicial decision in Massachusetts,
Maryland, Rhode Island, North
and South Carolina, Missouri, and
Iowa, and the rule has been legis-
latively established in Maine, al-
though the courts originally in-
clined the other way ; Moore v.
Jordan, 14 Louisiana Ann. 414 ;
Curtis Y. Murphy, 3 Metcalf, 405 ;
HennesHy v. Andrews, 6 Gushing,
1*70; Pomery v. Stevens, 11 Met-
calf, 244 ; Lawrence v. Stratton, 6
Gushing, 163 ; Parker v. Osgood,
3 Allen, 431 ; The City Council y.
Paige, 1 Speer's Equity, 159, 212 ;
Martin v. Sale, 1 Bailey's Eq. 24 ;
Wallace v. Craps, 3 Strobhart,
266 ; Fleming v. Burgin, 2 Ire-
dell's Equity, 584 ; Hopping v.
Burnam, 2 Iowa, 89 ; Vaughn v.
Tracy, 22 Missouri, 415 ; Froth-
ingham v. Stacker, 11 Id. "71 ; Har-
rison V. Cochelen, 23 Id. IIT ; The
General Ins. Co. v. The U. S.

Ins. Co., 10 Maryland, 517, 525 ;
The Ohio Life Ins. Co. v. Boss, 2
Maryland Ch. 38 ; The U. S. Ins.
Co. V. Shriver, 3 Id. 381 ; Butler
V. Stevens, 26 Maine, 484 ; Spaf-
ford V. Weston, 29 Id. 140 ; Rich
Y. Roberts, 48 Id. 548 ; Porter v.
Seisey, 43 Id. 519. Such would
also seem to be the rule in Cali-
fornia {Stafford Y. Lick, 7 Califor-
nia, 479), although actual pos-
session by the grantee in an un-
registered deed is notice in that
state, to a subsequent purchaser
from the grantor ; Sanders v. Bol-
ton, 26 California, 393 ; Fair v.
Stewart, 29 Id. 486. And it is
clear that actual notice or the
knowledge which is equivalent to
it, need not be established by
direct proof, and may be inferred
from facts and circumstances, an^e,
39, 147 ; Smith v. Lambeth, 15
Louisiana, Ann. 566. But a pur-
chaser will not be denied the bene-
fit of the recording acts, unless
it appears from the evidence as a
whole, that he knowingly concurred
in the fraud practised by the vendor
on the prior grantee or mortgagee
Porter v. Seisey, 43 Maine, 513
Spafford v. Weston, 29 Id. 140
Parker v. Osgood, 3 Allen, 487
Wallace v. Craps, 3 Strobhart,
266. The law is thus brought
back to the point where it stood
in the time of Lord Hardwicke.

It is, accordingly, well settled
under the revised statutes of Mas-
sachusetts, which provide that an
unrecorded conveyance shall not
be valid except against the grantor,
" and persons having actual notice
thereof;" that the entry of one
claiming under such a convey-

liE NEVE V. LE NEVE.

223

ance, followed by the occupation,
enclosure, and cultivation of land,
will not justify an inference of
notice as against a subsequent
purchaser or judgment creditor ;
Pomeroy v. Stevens, 11 Mete.
244 ; Mara v. Pierce, 9 Gray,
406 ; Booley v. Wolcott, 4 Allen,
406. Such, also, is the rule in
Missouri and Rhode Island
( Vaughn v. Tracy, 22 Missouri,
415 ; Harrison v. Cohelen, 2.3 Id.
117 ; Harris v. Arnold, 1 Rhode
Island, 125), although possession
may be one of several circum-
stances tending to establish the
existence of actual notice. In
Landis v. Brant, 10 Howard, 348,
it was, nevertheless, held, on a
writ of error to the circuit court
for the district of Missouri, tliat
open and notorious possession,
under a sheriff's deed was evidence
from which a jury might presume
that a subsequent purchaser had
notice not only of the fact of pos-
session, but of the conveyance
under which it was held.

In Pennsylvania, notice of a
judgment, which has been errone-
ously entered against a firm, with-
out giving the Christian names of
the partners, will render it valid
against a subsequent purchaser or
incumbrancer ; The York Bank's
Appeal, 12 Casey, 460. But it
seems from the language held in
Smith's Appeal, 11 Wright, 128,
that the notice must be actual, as
distinguished from constructive
notice. A similar inference may
be drawn as to the kind of notice
requisite to make an unregistered
mortgage effectual against a subse-
quent judgment ; see Britton's Ap-

peal, 9 Wright, 112; Nice's Ap-
peal, 4 P. F. Smith, 200 ; but the
point can hardly be regarded as
having been before the court.

Whatever the rule may be as to
constructive notice, it is clear that
nothing should be allowed to go to
the jury as evidence of actual no-
tice of an unregistered deed or
mortgage, which is not sufficiently
clear and authentic to render it the
duty of the purchaser to inquire,
and enable him to ascertain the
truth ; ante, 146 ; Fort v. Burch, 6
Barb. 60 ; Jaques v. Weeks, t
Watts,261,274; ^og'gfsv. Var7ier,Q
W. & S. 469, 474 ; Sogers y. Wiley,
14 Illinois, 65. This is the more re-
quisite, because constructive notice
being a legal inference, is suscepti-
ble of being reduced to certainty,
while no one can be sure of the
uncertain testimony of witnesses.
In Boggs v. Varner, Rogers, J.,
observed : " The recording acts are
specially intended for the protec-
tion of purchasers, and they would
be of problematical benefit, if a
jury were allowed to act, or draw
inferences to his prejudice, on such
loose, unsatisfactory testimony.
The provisions of the act may be
easily complied with, and at but
little expense, so that owners are
left without excuse, and if they
will neglect their duty in this par-
ticular, it is but just that the con-
sequences be visited on their
heads. A court of equity acts on
the conscience, and as it is impos-
sible to make any demand on the
conscience of a man who has pur-
chased for valuable consideration,
bona fide and without notice of
any claim on the estate, such a

224

NOTICE.

man is entitled to tiie peculiar fa-
vor of a conrt of equity. As
every presumption is in favor of
the subsequent purchaser, when
the former owner is guilty of neg-
lect, his title cannot be postponed
except by evidence which taints
his conduct with fraud. And this,
it is obvious, ought not to be done
by testimony in its nature vague
and indefinite, and leading to no
certain results, such as that he
ought to have known of the prior
title, because he lived near the
owner, in the same town, perhaps,
or on the next lot ; that he was well
acquainted with him, or because
the title was well known to others.
This may well be true, and j'et. at
the time he pays his money, he
may be ignorant of any other
title than his own. It is not just,
that inferences should be strained
in favor of the person, by whose
default the mischief has been
done.''

In some of the states, unregis-
tered deeds are valid against judg-
ment and attaching creditors ;
Rixby V. Higgins, 15 California,
12*7 ; Orth v. Jennings^ 8 Black-
ford, 420 ; Bell v. Evana, 10 Iowa,
353; Euans v. M'Glasson, 18 Id.
150; Greenlaaf Y. Eden, 2 Minne-
sota., 264 ; Kelly v. Mills, 41 Mis-
sissippi, 26'7 ; in others void ;
Moore v. Watson, 1 Conn. 388 ;
Bissell V. Nooney, 33, 411 ; De-
lano V. Moore, 14 Howard, 253;
Mallory v. Stoddart, 6 Alabama,
801 ; The Ohio Life Ins. Go. v.
Ledyard, 8 Id. 866; Pollard v.
Cocke, 19 Id. 188 ; Reichert v. W-
Clure, 23 Illinois, 516; Eing v.
Gray, 6 B. Monroe, 368 ; and the

registry acts in general provide
that the lien of mortgages and
deeds of trust intended as a security,
shall commence from the time of,
and not before registration ; Tay-
lor V. Doe, 13 Howard, 28t ; Jaques
V. Weeks, Y Watts, 471 ; Eulingsv.
Guthrie, 4 Barr, 123 ; Edwards v.
Trimbell, 14 Wright, 369. Where
this rule prevails it is held with few
exceptions, that notice is not less
binding on a creditor than on a
purchaser, and will preclude him
from acquiring a lien subsequently
by a judgment or attachment ;
Cox V. Milner, 23 Illinois, 416 ;
Ogden v. Haven, 24 Id. 57 ; Ayres
V. Dapree, 27 Texas, 293; God-
dard v. Prentice, 17 Conn. 546 ;
Dixon V. Doe, 1 Smedes & Mar-
shall, 70 ; Priest v. Bice, 1 Pick.
46 ; Lawrence v. Stratton, 6 Gush-
ing, 163, 167 ; BurtY. Caferly, 12
Alabama, 731 ; Dixon v. Doe, 1
Smedes & Marshall, 70 ; Hut v.
The Bank, 33 Vermont, 252 ; Mel-
lon's Appeal, 8 Casey, 121 ; Brit-
ton's Appeal, 9 Wright, 192. It
has, nevertheless, been decided in
some of the states, that notice to
a creditor raises no equity that
will preclude him from taking ad-
vantage of the failure to record a
deed or mortgage; ante, 97 ; But-
ler V. Maury, 10 Humphreys, 420;
Dewey v. Littlejohn, 2 Iredell, Eq.
493; Mayheiox. Goomfes, 14 Ohio,
428 ; Lillard v. Suckers, 9 Yer-
ger, 64; Guerrant v. Anderson, 4
Randolph, 208.

No rule of right or policy for-
bids anyone to purchase that which
another may lawfully sell, ante.
It follows that where a deed or
mortgage is invalid for want of

LE NEVE V, LE NEVE.

225

registration as against a judgment,
a purchase under the judgment
will confer a valid title, notwith-
standing any notice that may be
given at or before the sale ; ante,
95 ; Runyan v. M'Clellan, 24 Ind.
165; Guerrant v. Anderson, 4
Randolph, 208 ; Jaques v. Weeks,
1 Watts, 261. These cases are
akin to those which establish that
a purchaser with notice may buy
with a safe conscience from a pur-
chaser without notice, ante, 33, be-
cause the latter might otherwise be
unable to dispose of property which
had become rightfully his own, ante,
119. In Mississippi a deed of trust
or mortgage does not take effect as
a lien against creditors and purcha-
sers until it is recorded, whilejudg-
ments are liens from the time of
their rendition. Hence, -where a
judgment is entered in that State
during the interval between the
execution and registering of a
mortgage , one who buys after the
mortgage has been registered, at a
sheriff's sale under the judgment,
will acquire a valid title as against
the mortgagee. Taylor v. Doe,
13 Howard, 287. In 'like manner,
an attachment by a creditor with-
out notice is valid, although the
defendant in the attachment is a
purchaser with notice; Coffin v.
Ray, 1 Metcalf, 212; Gushing v.
Hard, 4 Pick. 252.

It results from the same princi-
ples that to render an unregistered
mortgage valid as against a pur-
chaser under a subsequent judg-
ment, notice must not only be
given to the judgment creditor
and the purchaser; but the pur-
chaser must know, or be informed
VOL. II. — 15

that the creditor had such notice,
and could not conscientiouslj' en-
force the judgment. See Mott v.
Clark, 9 Barr, 399, 485.

Where an unregistered convej'-
ance is valid against a judgment,
it will also be valid against a pur-
chaser with notice under an execu-
tion issued on the judgment ; Stil-
well V. M' Donald, 39 Missouri,
282 ; Patton v. M'Donald, 43 Id.
93 ; Davis v. Ownsby, 14 Id. 110 ;
Kelly V. Mills, 41 Mississippi, 2*73 ;
Greenleaf v. Edes, 2 Minnesota,
264. And as registration op-
erates as notice, it will not be too
late if it takes place at any time
before the sheriflF's sale ; Davis v.
Ownsby ; Stilwell v. M'Donald ;
The Ohio Life Ins. Co. v. Led-
yard, 8 Alabama, 866, ante, 65.

The weight of authority is that
a purchase at sheriff's sale is as
effectual in clearing the title from
latent rights and equities as if it
was made directlj' from the de-
fendant in execution ; Scribner v.
Lock-wood, 9 Ohio, 184 ; Wilsons.
Shoenberger, 10 Casey, 121 ; Derr
V. Richman, 1 Green, 43 ; Oar-
wood V. Garwood, 4 Halstead, 193 ;
Jackson v. Chamberlain, 8 Wend.
620 ; Runyan v. M'Clellan, 24 In-
diana, 165 ; Draper v. Bryson, 26
Missouri, 108 ; Stewart v. Free-
man, 10 Harris, 120. It follows,
that even where an unregistered
conveyance or incumbrance is valid
as against a subsequent judgment
creditor, it may be avoided by a
sale under the judgment to a pur-
chaser without notice. A pur-
chase by a judgment creditor un-
der his own execution is within
this principle ; ante, 33, 94 ;

226

NOTICE.

Fords V. Vance, 17 Iowa, 94;
Savory v. Browning, 18 Iowa,
246.

It is well settled, that where land
held in trust, is sold under a judg-
ment which binds the legal title,
to a iona fide purchaser, the pro-
ceeds of the sale will be awarded to
the cestui que trust, and not to the
judgment creditor whose right does
rise above that of the defendant in
the judgment; ante, 90; and the
principle is the same as between
a judgment creditor with notice of
an unregistered mortgage, and the
mortgagee ; Britton's Appeal, 9
Wright, 72.

It remains to inquire whether
equitable estates and interests are
within the registry acts ; or to state
the point somewhat differently, do
these acts afford protection against
latent equities, as well as unregis-
tered deeds ? The question was an-
swered in the negative in Doswellv.
Buchanan, 3'Leigh,3Q2. See Gov-
erneur v. Lynch, 2 Paige, 300 ; De
Bayter v. The Trustees, 2 Barb.
Ch. 556 ; Jaques v. Weeks, 7
Watts, 261, 268, 272 ; Swigert v.
The Bank, 17 B. Monroe, 268,
290; Corn v. Sims, 3 Metcalf,
Ky. 348, ante ; Kelley v. Mills, 41
Mississippi, 267 ; Ludlow v. Van
Niss, 8 Bosworth, 178 ; Walker v.
Oilhert, 1 Freeman Ch. 25, ante.
So Chancellor Walworth held, in
Grimstone v. Carter, S Paige, 421,
that it is neither practicable nor
requisite to apply the policy of the
registry acts to equitable interests
in real estate ; not practicable, be-
cause interests of this description
frequently arise from acts in pais,
or from writings not formally exe-

cuted, or under seal ; not requisite,
because the established rule of
equity jurisprudence guards a pur-
chaser against equities of which
he has no notice, and the registry
acts can do fto more.

The weight of authority, never-
theless, is, that the registry is in-
tended to be a chart as well as a
transcript of the title to real es-
tate, and that nothing which it
does not disclose or afford the
means of ascertaining will affect a
bona fide purchaser ; Harrison v.
Cochelin, 23 Missouri, 117, 127;
Mesick v. Sunderland, 6 Cali-
fornia, 297 ; Orvis v. Newell, 17
Conn. 97 ; Bush v. Golden, lb.
594. In the case last cited, it was
agreed orally between Bush and
Golden, that a mill-dam which
they held in common, should be
widened and enlarged at their joint
expense ; and that each should
have a right of way across the
breast of the dam, to the land on
either side which belonged to
them in severalty. This agree-
ment was carried into effect, and
the right of way used in con-
formity with it, for many years.
The question finally arose, whether
Bush was entitled to the way
as against a mortgagee from Gol-
den. The court held, that as the
use of the way was consistent
with the title of the occupants as
tenants in common, it did not
operate as notice that either of
them had a further right. If Bush
had obtained a grant of the alleged
easement under seal, and executed
in due form, it would not have
been valid against the mortgage
•without registration, and he was

LE NEVE V. LB NEVE.

227

not in a better position in this re-
gard,^because he had seen fit to
rely on an oral agreement. The
failure to take a legal and cus-
tomary precaution, did not excuse
the non-observance of another of
equal moment.

In was held in like manner, in
Harrison v. Cochelin, that a mis-
take in conveying one lot of land
instead of another, could not be
rectified after the premises had
passed into the hands of a bona
fide purchaser, who gave value on
the faith of the title as registered,
although the complainant was in
actual possession. The court held
that this was not notice within
the meaning of the registry acts.

Where a purchaser can be charged
constructively with notice of an
unregistered conveyance, the ques-
tion is, as Chancellor Walworth
observed in Orimstone v. Carter,
to a great degree speculative.
Agreeably to this rule, the proof
of constructive notice may be the
same, whether the case is or is not
within the recording acts. But
-where actual notice is requisite to
supply the want of registration, an
exception should not be made in

favor of equitable estates or in-
terests, on the ground that there
is no written evidence of their exis-
tence, or none that can be recorded.
A complainant who sees fit to ac-
cept and act under a parol agree-
ment, instead of the formal grant
which the law requires, cannot
complain of being postponed, be-
cause he might have avoided this
result by a little care ; Orvis v.
Newell, 17 Conn. 9t ; Bush v.
Golden, lb. 594. The case is
somewhat different where a trust
arises ex maleficio; and it may be
then thought harsh to put the in-
jured party to proof of actual notice
against one who obtains arid regis-
ters a conveyance from the trustee.
It should, nevertheless, be remem-
bered, that the registry acts were
made in aid of purchasers, and to
afibrd greater certainty than could
readily be obtained under the pre-
vious system of conveyancing. A
purchaser should not, therefore,
be denied the benefit which the
legislature presumably meant to
confer, unless the evidence goes
far enough to establish the scienter,
which is essential to the proof of
actual fraud.

228 MAESHALLING ASSETS.

[*78] *ALDRICH v. COOPER.

DURHAM V. LANCASTER.
DURHAM t;. ARMSTRONG.

KOV. 24, DEC. 7, 8, 10, 1802 ; APRIL 36, 1803.

KEPOETED 8 VES. 308.

Makshalmkg.] — Morlgagee of freehold and copyhold estates, also a
specialty creditor, having (zhaust(d the 'personal assets, simple con-
tract creditors are entitUd to stand in his place against both the
freehold and the copyhold estates, so far as the personal estate has
been taken away from them by such speciaJty creditor.

Mortgage of freehold estatf, with a covenant for better securing the
payment, to procure admission and to surrender a copyhold estate,
and in the meantime to stand seised in trust for the mortgagee. A
primary mortgage of both estates; and the freehold not first appli-
cable.

In these causes the usual decree was made for an account of
what was due to the plaintiti Aldrich, a simple contract creditor
of the intestate John Cooper, and all other the creditors; and, in
case the creditors by specialty should exhaust any part of the
personal estate, it \\ as declared, that the simple contract creditors
were entitled to stand in their place, &c.

The Master's report stated, that the testator died seised of free-
hold estates of inheritance, subject to a mortgage made by the
intestate, by indentures dated the 6th of October, 1791, for 1300Z.;
by which indentures also, tor better securing the payment, he
covenanted with the mortgagee to procure himself to be admitted
to copyhold estates, and that he would surrender them to the
r*7qi mortgagee ; and that *until such surrender, he would
L "-' stand seised of the premises in trust for the mortgagee.

The intestate died in June, 17t*2, not having been admitted to
the copyhold estates, leaving tive sisters his coheiresses-at-law,
who, in September, 1792, were admitted to the copyhold estates
as coheiresses of the intestate, and immediately- atterwards sur-
rendered to the mortgagee for securing what was due upon the
mortgage and two bonds by the intestate to the mortgagee. The
widow of the intestate took out administration, and paid out of
the personal estate 767L, in part of the mortgage and bonds.
Tlie personal estate being exhausted, when the cause came on for
iurtljer directions, a question arose, whether the creditors by simple
contract were entitled to stand in the place of the specialty creditors in
respect of what they had drawn from the personal estate, against the
copyhold as well as the freehold estates.

Mr. Romilly, for the plaintiff, said, that, if the question as

ALDKICH V. COOPER. 229

ao;ainst the copyhold estate could be considered open, the princi-
ple is, that where a creditor, who has two funds, chooses to resort
to the only fund upon which other creditors can go, they shall
stand in his place for so much, against the fund to which they
otherwise could not have access ; but he admitted this case could
not be distinguished from Robinson v. Tonge}

Mr. Pigott, for the coheiresses, relied upon the circumstance,
that the only act as to the copyhold estate was the covenant for
farther security to be admitted, and to surrender to the mort-
gagee, and in the meantime to stand seised in trust for him ;
showing the intention, that the freehold estate should be first
applied as the primary fund — the copyhold being only a subsid-
iary security.

Lord Chancellor Br.DOir. — The words, "for better securing
the payment," are not thrown in for the purpose of making the
freehold estate applicable first ; but the common form of a mort-
gage of freehold and copyhold estates is to make the freehold
liable, with a *coveflant to surrender the copyhold, in r^n/^-i
order to save the fine. L ^

It is necessary to look into the case that has been cited. Free-
hold estates are not assets for simple contract debts f and I
should have thought t le same reasoning that governs that case
would have applied to this.

Mr. BomiVy and Mr. Stratford for the plaintiflEs. — The case
before Lord Hardwicke certainly cannot be distinguished from
this; but it is impossible to support that case upon the principles
upon which the Court has always acted as to marshalling asset?.
That case is not reported upon this point, except in Mr. Cox's
note, though it is in several books upon others ; nor has the point
been before the Court in any other case, nor the ground taken by
Lord Hardwicke Qvar acted upon in any other instance. Tne
principle as to marshalling assets is stated in Lanoy v. The Duke
of Athol^ viz., that if a creditor has two funds, he shall take his
satisfaction out of that fund upon which another creditor has no
lien. If it is sufficient to say, the creditor disappointed had no
claim in law or equity upon the fund, that would be an answer
in every case. In the instance of a simple contract creditor, dis-
appointed by the specialty creditors taking payment out of the
personal estate, he has no claim in law or equity upon the real
estate. So a legatee, where the creditors exhaust the personal
estate, has no claim but what the testator gives him. In Lanoy
V. The Duke of Athol, the case is put of ai mortgagee of two estates,
and a subsequent mortgage of one of them to another person ; if

' Stated in Mr. Cox's note, 1 P. Wms. 6S0, edit. 5.

2 But see now 3 & 4 Will. 4, c. 104. » 3 Atk. 446.

230 MARSHALLING ASSETS.

that estate is insufficient to pay both, the first mort^ igee shall be
compelled to take satisfaction out of the other estate, in order to
leave to the second mortscascee that upon which alone he can go.
The same argument would occur, that the second mortgagee had
contracted only for a security upon the one estate, and had no
claim upon the other. So a widow is entitled to her parapher-
nalia, though not againstvoreditors ; but if a mortgagee chooses
r*aii ^^ take them in satisfaction of *his debt by bond or cove-
'- -I nant, a Court of equity will ascertain the value, and
make her a creditor for that upon the mortgaged estate : Tipping
V. Tipping} Upon what ground, if Robinson v. Tonge is right,
can she stand as a mortgagee upon the real estate ? The distinc-
tion is clear, upon LiiUdns v. Leigh^ and Fo'-rester v. Lord Leigh,^
that, though the Court will marshal for legatees against a de-
scended estate, they will not against a devised estate ; but they
shall stand in the place of a mortgagee for what he takes out of
the personal estate. It would be very extraordinary if the Court
would marshal by placing a legatee in tbe situation of a mort-
gagee against the copyhold estate, and wduld not do that for
creditors.

Mr. Pigott and Mr. Fonhlangue for the defendants. — These are
the copyhold estates of an intestate: no intention is demonstrated
to subject them to debts by any testamentary disposition. They
are not assets, either at law or in equity : not liable to debts
farther than by express contract. Robinson v. Tonge, is not
inconsistent with the cases, considering the subjects to which
they apply. Marshalling is contined to assets, and goes no
further than the jurisdiction over them. Copyhold estate is not
a subject of that jurisdiction, specialty creditors having no claim
upon that, as they have upon freehold estate,*" which therefore is
marshalled. The distinction is, that the specialty creditors have
resort to the one fund, and not to the other. To the eifeet of
makins: the copyhold estate bear its proportion of the mortgage,
the heir *is bound by Robinson v. Tonge; but the Court will not
go farther than to prevent an election to the prejudice of other
claims upon the freehold estate. It is safer to adhere to a case so
precisely in point, than to unsettle this question after such a
length of time, because in other cases there is an apparent con-
trariety of principle. There is no case in which that has been
brought again before the Court, much less has that authority
been impugned. In all the cases that have been put, the Court
was applying the principle of mar.shalling assets. That phrase
implies an equitable arrangement of two funds of the description
r*Qo-| of assets. *Thi8 sort of case must have arisen repeatedly ;
•- -I and yet there is no instance of a determination the other
way, which is evidence otUhe general understanding.

> 1 P. Wms. 729. 2 Ca. t. Talb. 54. ' Arab. 171.

' Copyhold' as well as freehold estates are now liable to the payjaeut of debts
both by specialty and simple contract. See 3 & 4 Will. 4, c. lOi.

ALDRICH V, COOPER. 231

Mr. Romilly, in reply. — RMnson v. Tonge is certainly a very
great authority ; but it is to be observed, that it was decided soon
after Lord Hardwicke got the G-reat Seal ; and as to the length
of time, and the acquiescence under it for beventy year^, during
sixty years of that time it was utterly unknown. Mr. Cox, when
he pnblished his first edition of Peere Williams, had not foand
that casp, and it was not pabltshe.l till 1793. There is no in-
stance of its having been admitted or cited as an authority. No
case corresponding with it can be found ; neither can I show one
overruling it. There is complete silence on both sides ; bat that
is in favour of the plaintiiF, as it is not probable that a note
would be taken of a decision establishing no new doctrine, but
merely following an established rule. So, it must be supposed
there have been many instances of marshalling against copyhold
estate. It is objected, that marshalling is merely a distribution
of the different assets by such an arrangement as will satisfy all
the creditors, and that copyhold estate is not assets. But that
which is called marshalling is merely that rule with respect to
the two funds, stated by Lord Hardwicke in Lanoy v. The Duke
of Athol, and is called marshalling assets, merely as being gener-
ally applied to a case of assets. But the doctrine is applied to
other cases, where the parties are living, as the case mentioned in
Lanoy v. The Duke of Athol, of the two mortgages. So, where
the Crown, by an extent, has taken a mortgaged estate, and de-
prived the mortgagee of his security, the Court of Exchequer has
marshalled in his favour by letting him stand in the place of the
Crown upon other funds not comprised in his mortgage.
Another instance is the ease of a surety, who is pat in the place
of the creditor against the other securities, though he has no
charge against thein. That is the common equity : Tynt v. Tynl,^
and Deering v. hord Winchelsea;^ in which each surety had
given a *distinct security. The same principle is applied r*oQ-|
in all these cases. ^

But can these copyhold estates be said, in any just sense, not
to be assets ? In other cases, the Court does not proceed against
assets. Real estate is not assets for payment of simple contract
debts. It must be contended, that even if the debtor makes the
cop3"hold estate assets, the Court cannot marshal Suppose he
surrendered to the use of his will, and devised it for payment of
specialty debts, can there be a doubt that, if the specialty credi-
tors chose to take satisfaction out of the personal estate, the sim-
ple contract creditors would be put in their place? Why should
they not, then, where he has made the copyhold estate a fund for
the payment of this debt by his deed ?

Lord Chancellor Eldon'. — I cannot, yet find this case among
Lord llardwicke's notes. I feel it to be my duty to understand
the principle of the case before I co.itirm it, or to decide against

' 2 P. Wms. 543. ' 1 Cox, 318 ; ante, vol. 1, p. 89.

232 MARSHALLING ASSETS.

it upon a principle stated from this place so clear, that there can
he no doubt upon it. I was surprised at the case when it was
stated. Suppose there was no freehold estate, but there was a
copyhold estate, which the owner had subjected to a mort2:age,
and died, it is clear the morto^agiee, havino; two funds, might, if
he pleased, resort to the copyhold estate. But would this Court
compel him to resort to it ? If so, the Court marshals by the
necessary consequences of its act. If the Court would not com-
pel him, is it not clear that it is purely matter of his will
whether the simple contract creditors shall be paid or not ? That,
at least, contradicts all the authorities, that if a party has two
funds (not applying now to assets particularly), a person having
an interest in one only has a right in equity to compel the former
to resort to the other, if that is necessary for the satisfaction of
both. I never understood, that if A. has two mortgages, and B.
has one, the right of B. to throw A. upon the security which B.
cannot touch, depends upon the circumstance whether it is a
r*8-t"l ft'sshold or a copyhold *mortgage. It does not depend
'- -' upon assets only : a species of marshalling being applied
in other cases, though technically we do not apply that term ex-
cept to assets. So, where in bankruptcy the Crown, by extent,
laying hold of all the property, even against creditors, the Crown
has been confined to such property as vvould leave the securities
of incumbrancers eft'ectual.^ So, in the case of the surety,^ it is
not by force of the contract ; but that equity, upon which it is
considered against conscience that the holder of the securities
should use them to the prejudice of the surety ; and therefore
there is nothing hard in the act of the Court placing the surety
exactly in the situation of the creditor. So, a surety may have
the benefit of a mortgage of a copyhold estate exactly as of free-
hold. It is very difficult to reconcile this with the principle of
all those cases between living persons.

So, also, in a case which this court calls a jnst distribution of
the effects of a deceased person, a simple contract creditor has no
manner of hold upon the freehold estate. How, then, is he
allowed in this court effectually to apply it for his satisfaction?
Not upon the ground that it is assets, either by will or by con-
tract inter vivos; but upon the ground, that the specialty or
mortgage creditor, having two fuuds, shall not, by his will, re-
sort to that, by going to which he will disappoint as just a
creditor, who cannot resort to any other. The principle in so'ne
degree is, that it shall not depend upon the will of one creditor to
disappoint another. Then, what is the distinction as to the copy-
hold estate ? The question is, whether the debtor has not sub-
jected the copyhold estate to tlie extent of the mortgage imposed
upon it ; whether he has not decided that his property, to that
extent, shall be liable to some debt? And the Court will extract

' And see Sagittiry v. Hyde, 1 Vern. 455.

* See Ueriug v. E.u'l of vViaclieiseu, ante, Vol. 1, p. 100, aid note.

ALDRICH V. COOPER. 233

tbivS further principle, that a creditor who can make it liable to that
extent, shall not, by his will, defeat another ; the former having two
funds, the laft r only one. The principle is farther demonstrated
by the cases of contracts by specialty that do not affect the real
estate ; as a bond, not mentioninsj heirs : there, according to Lord
Hardwicke, *there is no marshalling, as there are not r-^o-i
two funds, and therefore no one is disappointed by the '- ''-'
option of another ; the act of the creditor's will necessarilj' origi-
nating out of the security he has. Jiobinson v. Tonge, to a certain
degree, relieves simple contract creditors. The estate is charged
expressly with the payment of that debt : and therefore, if the
freehold and copyhold estates go to different heirs, that charge is
the foundation for this Court's applying the principle of contri-
bution ; not because it is assets, but because it is charged, not
being assets. The effect of that, as to simple contract creditors,
is, that resort may be given to them upon the unexhausted part
of the freehold estate, as the specialty creditors are, to a certain
degree, thrown upon the copyhold.

Lord Chancellor Eldon. — I have looked into every book, and
can find nothing material upon this point either in print or
manuscript. No l)ook notices that there was any such point in
Robinson v. Tonge: but it is clear, from the Registrar's book, by
the arrangement of the decree, that the point must have occurred.
The specialty creditors insisted that they had a right to have the
whole copyhold estate applied to the mortgage, in order to leave
the freehold estate as assets for debts. Upon that case, if that
decision had not been made, I should have thought they wouk
have had that right. I caimot conceive the principle upon which
that decision stands. Mr. Cox had it from a book of Lord
Redesdale's, a note-book of Sir Thomas Sewell, who, I have no
doubt, took the note himself, and preserved it as a special case.
ISo case, therefore, can be entitled to more respect. The difficulty
is this: — Suppose the personal estate to be 1500?. and simple
contract debts to that value, and a mortgage of that amount
upon freehold and copyhold estates ; the mortgagee, if he pleases,
may call for payment out of the estate [iledged. It is clear, if no
third, persons are concerned,^ the Court would arrange *be- r*of.-|
tween the two estates, if they went to different persons. ^ ^
In that case, if no third persons were concerned, and the estates
were of equal value, that sum would be divi<led between them,
and the simple contract creditors would receive the whole per-
sonal estate. If the mortgagee chose to exhaust the whole per-
sonal estate, the consequence, if that doctrine is right, is, that the
simfile contract creditors would stand ia his place against the
freehold estate at least, for the proportion of the mortgage that

' As to third parties being concerned see Averall v., Wade, L. & G. t. Sugd.
352 ; Burnea v. Rucsler, 1 Y. & C. C. C. 401.

234 MARSHALLING ASSETS.

estate ought to bear. Why ? That is not the act of the testator,
nor of the law. There is no more a lien for them upon the free-
hold estate than upon the copyhold. Bat the Court has said, and
the principle is repeated very distinctly in The Attorney General
V. Tgndall^ that if a creditor has two funds, the interest of the
debtor shall not be regarded, but the creditor having two funds,
shall take to that which, paying him, will leave another fund for
another creditor. If that is so as to simple contract creditors,
having no coimection with the freehold estate, except that prin-
ciple of equity, why is not the same principle to apply to copy-
hold estate ? Copyhold estate is not chargeable' with debts ;
neither is freehold estate chargeable with simple contract debts:'
but this copyhold estate is expressly charged with a debt : and if
freehold estate is applied to simple contract debts, because
charged with another debt, why is not copyhold estate ?

Lord Chancellor Eldon. — This instrument, as far as it re-
spects the copyhold estate, is certainly an inaccurate security : for
the mortgagor, covenanting to procure himself to be admitted
and to surrender, and in the meantime to stand seised to the use
of the mortgagee, not being himself admitted, could not with
propriety be said in the meantime to stand seised, as, after admis-
sion, in a sense he might. The effect of the deed is an agreement
in equity, pledging the copyhold estate for the payment of that
1*871 ^^'^ together with the freehold estate ; and I state *it in
L J these terms, as I do not understand it to be an instru-
ment of mortgage of the freehold estate, with no more than a
covenant, that it the freehold estate should be deficient, the copy-
hold should be a security in aid ; but I look upon it as giving the
mortgagee a legal estate in the freehold and an equitable estate
in the copyhold ; thereby giving him recourse to two funds for
the payment of his debt.

The question is, whether, for the sake (if it is necessary) of dis-
charging the debts, and particularly the simple contract debts of
the mortgagor, the Court will go farther than it appears to have
done in a case which I fo ind, I confess very much to my surprise,
in Mr. Cox's note. I never had heard of it before. I do not find,
either in print or manuscript, that it has found its way to the
notice of the public, except through the channel from which Mr.
Cox derived his information. There is no other note of it. Yet
there is no donbt of the authenticity of that note ; for Mr. Cox
has, in this, as in all other cases (which makes his work of so
much value in the library of a lawyer) examined the Registrar's

» Amb. 614.

2 Thfcword " Charged" In the report is evidently usod by mistake.
■■' But see now 3 & 4 Will. 4, c. 104, rendering freeholds and cjpyholds liable
to all debts.

ALDRICH V. COOPER. 235

book, which corresponds with the note. At the same time, no
notice is taken of that case, or any other of that date, in Lord
Hardwicke's notes. In fact, however, the records of the Court
prove that there was snoh a case. I understand, hy the note,
that there being, no fund but tiie freehold and copyhold estates,
and the mortgage creditor having both those estates in his mort-
gage, it was desired that equity, in order to satisfy the specialty
creditors, would require him to take his satisfaction out of the
copyhold estate alone. The principle stated by the Court, in
answer, that copyhold estates are not liable, either in law or
equity, to the testator's debts, farther than he subjected them
thereto, is undeniably true. But the question is, how it is to be
applied, when the testator has, by contract, subjected his copy-
hold estate to the whole of the debt ; though at the same
time subjecting an estate of another species also to the whole
debt. I understand the opinion of the Court to have been, con-
sidering it a *due application of the principle stated by r*Qn-,
Mr. Cox, that none of the rules subject any fund to a L J
claim to which it was not before subject ; but they only take
care that the election of one claimant shall not prejudice the
claims of others ; that there were a freehold and copyhold estate
both liable to the whole mortgage by the contract and act of the
testator in his life; that though the specialty creditors could not
be wholly paid, unless the mortgage was thrown upon the copy-
hold estate, to the intent that the freehold might be open to the
specialty creditors, yet the copyhold should only bear its propor-
tion ; that is, that a value should be set upon each estate ; and if
that distribution of the two funds left any specialty creditor un-
paid, they must abide by the loss. It is quite clear this case is
by no means a due application of that principle stated by Mr.
Cox. Both the copyh Id and the freehold estates were before subject to
the claim; and the converse of that proposition seems in some de-
gree to follow from making the election of the mortgagee deter-
mine how far the specialty creditors shall or shall not be paid.

I have had an oj^portunity of communicating with Lord Redes-
dale upon this case, and have his Lordship's authority to say,
that he can reconcile it with no principle ; that it was as great a
surprise upon him as it was upon me; and he considers it as a
case standing altogether by itself, and not reconcilable to the
principles which govern the Court in a great variety of other
instances. I have also the full concurrence of Lord Redesdale's
opinion, that he would not determine according to that author-
ity. In the consideration of this subject, the word " assets " has
been very frequently used. But when you come to look at the
case of marshalling, though that term so frequently occurs, the
operation is upon the principle that the party has a double fund. It
is said copyhold estate is not assets. Clearly it is not assets for
specialty debts, not even for the debts of the Crown. But is
freehold estate assets for simple contract debts ? It is not,

236 MARSHALLING ASSETS.

neither in law nor equity.' Upon what ground, then, does the
Court say, in given cases, simple contract debts shall be paid out
poq-i of *the real estate ? , Not upon the ground of assets ;
L ""-^ but upon this, that, not every creditor has a pledge of
land, but a specialty creditor has a double fund to resort to.
There may be a mortgage, for instance, where the instrument in
none of its parts or obligations woulil aifect the heir. Though
he has a pledge of the land, it is not as assets, or as a specialty
creditor. But if he has a bond or covenant in the deed, he is a
specialty creditor, whose demand after the death of the mortga-
gor would affect the heir. In that case, then, the Court says, as
that specialty creditor, by his specialty contract, can affect the
land, he has two funds: the freehold and the personal estate : and
he shall not by his election disappoint the natural and moral
equity of the creditor by simple contract to be paid out of the
single fund, which his debt affects. The simple contract credi-
tor, therefore, has no more in law any claim against the freehold
estate than the specialty creditor in Robinson v. Tonge had upon
the copyhold estate. But, in the former case, the Court has
said, the caprice or election of a bond creditor shall not operate
to the prejudice of the simple contract creditor; and how can a
due application of that principle be made, if it is not applied
where the specialty creditor has a claim against the freehold
estate, but not against copyhold estate as any creditor of any sort,
but both estates being pledged and made a double fund by the
act and deed and contract of the mortgagor ?

Suppose another case: two estates mortgaged to A., and one
of them mortgaged to B. He has no claim under the deed upon
the other estate. It may be so constructed that he could not
affect that estate after the death of the mortgagor. Bat it is the
ordinary case to say, a person having two funds shall not, by his
election, disappoint the party having only one fund ; and equity,
to satisfy both, will throw him who has two funds upon that
which can be affected by him only, to the intent that the only
fund to which the other has access may retnain clear to him.
This has been carried to a great extent in bankruptcy ; for a
r*nn-| mortgagee, whose interest in the estate was *affected by
•- -' an extent of the Crown, has found his way, even in a
question with the general creditors, to this relief; that he was
held entitled to stand in the place of the Crown as to those
securities, which he could not affect per directum, because the
Crown afiected those in pledge to him.^ Another case may be
put: that a man died, having'no fund but a freehold and a copy-
hold estate; that they were both comprehendel in a mortgage to
A., and the freehold estate only was mortgaged to B. ; and that
B. was not only a mortgagee of the freehold estate, but also a

' Both freehold and copyhold estates are no .v assets for the payment of all
debts. See 3 & 4 Will 4, c. 104.

2 And see Sagitary v. Hyde, 1 Vern. 455.

ALDRICH V. COOPER. 237

specialty creditor by a covenant or a bond. In that case, as well
as in this, it might be said the mortgagee of both estates might,
if he thought proper, apply to the freehold estate, and exhaust
the whole value of it. The other would then stand as a naked
specialty creditor, the fund being taken out of his reach ; and
there is no doubt that, being both a specialty creditor and a
mortgagee of the freehold estate, but not having any claim as
mortgagee upon the copyhold estate, the same arrangement
would take place, that he in equity should throw the prior in-
cumbrancer upon the estate to which the other has no resort.'

The cases with respect to creditors and other classes of claim-
ants go exactly the same length. In the cases of legatees against
assets descended, a legatee has not so strong a claim to this
species of equitj' as a creditor. But the mere bounty of the
testator enables the legatee to call for this species of marshalling :
that, if those creditors, having a right to go to the real estate
descended, will go to the personal estate, the choice of the credi-
tors shall not determine whether the legatees shall be paid or not.
That in some measure is upon the doctrine of assets ; but with
relation to the fact of a double fund. Both are in law liable to
the creditors, and therefore by making the option to go against
the one, they shall not disappoint another person, who the testa-
tor intended should be satisfied. That is not so strong as where
it is not bounty, but the party has, by his own act in his life,
made liable to the whole of the debt a copyhold estate, not in
law liable, *and who, having also a freehold estate, r*qi-i
must be understood to njean, that the treehold estate *- '
shall be liable according to law to his specialty debts.

The case is exactly the same with reference to the distinction
taken, that where lands are specifically devised, the legatees shall
not stand in the place of the creditors against the devisees, tor
that is upon the supposition that there is in the will as strong an
inclination of the testator in favour of a specific devisee as a
pecuniary legatee, and therefore thereshall beno marshalling. But
if, though specilically devised, the laud is made subject to all debts,
that distinguishes the case ; tor there is a double fund ; and as, by
that denotation of intention, the creditor has a double tund, — -the
land devised, and the personal estate,^he shall not disappoint
the legatee.^ Ihe case is also the same, where, instead of the
case of a mere specialty creditor, the laud specifically devised is
subject to a mortgage by the testator ; as in Lutkms v. Leigh.;^
there he shall not disappoint the legatee. So the case of -para-
phernalia is very strong for this proposition, that, wherever there
is a double fund, though this Court; will not restrain the party,
yet he shall not so operate his payment as to disappoint another
claim, whether arising by the law or by the act of the testator.

' See Gwynne v. Ed-waitls, 3 Russ 289, n.

2 bee Piueison v. Scott, 1 De G. Mao. & G. 531.

= Ca. t. Talb. 54.

238 MARSHALLING ASSETS.

The conclusion therefore is, that the case of Robinson v. Tonge
is not reconcilable with the general classes of cases ; and therefore,
if it is necessary tor the payment of the creditors, .that the mort-
gagee should be compelled to take his satistaction out of the
copyhold estate, if he takes it out of the freehold, those who are
thereby disappointed must stand in his place as to the copyhold
estate.

Aldrich v. Cooper is generally cited as the leading case upon the doc-
trine of marshalling, which, although, in consequence of legislative
enactments, not so frequently called into exercise as in former years, is
still of considerable importance, and forms one of the most useful
branches of equitable jurisdiction • Eanhy v. Roberts, *Amb. 127 ;
[*92] y^^jg ^_ jj^g;^^ 2 Coll. 497 ; Tidd v. Lister, 10 Hare, 157 ; Pat-
erson v. Scott, 1 De G. Mac. & G. 531. It depends upon this principle,
as laid down in the principal ease, that a person having two funds to
satisfy his demands, shall not, by his election, disappoint a party who
has only one fund. If, therefore, a person, having a claim upon two
funds, chooses to resort to the only fund upon which another has a claim,
that other person shall stand in his place for so much against the fund,
to which otherwise he could not have access ; the object of the Court
being, that every claimant shall be satisfied, as far as, by an arrange-
ment consistent with the nature of the several claims, the property
which they seek to affect can be applied in satisfaction of such claims.
See Ex parte Kendall, 17 Ves. 520.

The doctrine of marshalling is not applicable, unless there are two
funds already in existence, before the question relating to it is raised.
Thus, in the case of In re Professional Life Assurance Company, 3 L.
R. Eq. 668, by the deed of settlement of an insurance company, and by
the terms of the policies issued by the company, it was provided that
the capital stock and funds of the company should alone be liable to claims
in respect of the policies, and that no shareholder should be liable to such
claims beyond the amount of the unpaid part of his share in the capi-
tal of the compan3^ The company was wound up, and calls to the full
amount of the unpaid capital were made, and the proceeds of such calls,
together with the other assets of the company, were applied in paying
part of the costs of the winding up, and in paying dividends on the
debts due to the policy holders and general creditors of the company
pari passu. It was argued on behalf of the policy-holders, that although
they had no charge upon the capital of the company, entilliug them to
priority over the creditors ; yet, inasmuch as the creditors had not only
the rights to be paid pari passu with policy-holders out of the capital
of the company, but also a right to call upon the shareholders person-
ally to pay the full amount of their debts, and they had resorted to the
capital, which was the only fund available for the claims of the policy-

ALDRICH V. COOPBR. 239

holders, the doctrine of marshalling applied, and the policy-holders
were entitled to stand in the place of the creditors, and to have a call
made upon the .shareholders, for the purpose of recouping the amount
by which the capital had been diminished by the payments made to the
creditors. It was held, however, by Lord Romilly, M. R., that the
doctrine of marshalling did not apply, and that no further call could
be made upon tlie shareholders for the purpose of recouping to the
policy-holders the amount of capital *which had been paid to the
general creditors ; but, that the costs of the winding up ought to L -^
be borne by the shareholders, and not to be paid out ^of the capital of
the company, and, consequently, a further call ought to be made, not
only to pay the balance of the debts of the general creditors, but also
to replace the capital which had been applied to the payment of costs.
" It is a settled principle of law," said his Lordship, " that were there
are two classes of creditors and two funds, and one class of creditors
can only go against one fund, while the other class can go against both,
the Court will marshal the assets, and restrict the creditors who have
a double security from touching the fund applicable to j)ayment of the

first class of creditors, until they are paid in full The

contest here is, whether that principle has any application to this case.
The contributories deny that there are two funds ; they argue, that the
contention of the policy-holders, if successful, would be to create two
funds, in order to raise the question, or, as it was pointedly put by Mr.
Mackeson in his argument, it is admitted that there cannot be any mar-
shalling of assets until the two funds exist ; but you raise the question
of marshalling, and claim a right to marshal in order to create a fund
for that purpose which does not now exist." See, also, In re State Fire
Insurance Company, 1 H. & M. 457 ; 1 De Gr. J. & Sm. 634.

It is, moreover, essential to the application of the doctrine of mar-
shalling, not only that there should be two creditors of the same per-
son, but that one of them should have two funds belonging to the same
person to which he can resort. Thus, it has been held that a legatee in
a will of a tenant in tail of land has no right to throw judgment credi-
tors of the testator, whose judgments attach on the land under the stat-
ute 3 & 4 Vict. c. 108, s. 22, exclusively on those lands, in exoneration
of his general assets. In Douglass v. Cooksey, 2 I. R. Eq. 811, a testa-
tor seised in fee simple of lands, A., and in tail of lands, B., by his will,
left an annuity charged on all his property. A judgment creditor of
the testator's, whose judgment was a charge on the estate of which the
testator died seised in fee, and also by the statute 3 & 4 Vict. c. 105, s.
22, on those of which he was seised in tail, sold first, estate A., which
was insufficient to pay him, and afterwards the lands of B. It was held
by the Master of the Rolls of Ireland (Walsh) that the annuitant had
no right to marshal as against the remainderman in tail, so as to be
recouped out of the produce of the sale of B. the amount paid to the

240 MARSHALLING ASSETS.

judgment creditor out of the produce of the sale of A. " To authorize
|-^„,-, marshalling," *said his Honor, "it is obviously necessary not
only that a claim should exist against a fund, subject in com-
mon with another fund to a paramount liability ; but also that those
interested in that other fund should not have a right to throw the lia-
bility on the fund of the claimant. A man's own property — on which
alone his legatees can claim — must be applicable to his debts in prefer-
ence to the property of another, against which the statute merely gives
a remedy. The case is much clearer than the instance of an estate made
assets by the exercise of a power, as in Fleming v. Buchanan, 2 De G.
Mac. & G. 976, or the instance of paraphernalia, to which it was com-
pared in argument.

Marshalling will not, unless founded on some equity, be enforced be-
tween persons, unless they are creditors of the same person, and have
demands against funds the property of the same person. " It was never
said," observed Lord Eldon, " that if I have a demand against A. and B.,
a creditor of B. shall compel me to go against A. without more ; as if B.
himself could insist that A. ought to pay in the first instance, as in the
ordinary case of drawer and acceptor, or principal and surety, to the
intent that all the obligations arising out of these complicated rela-
ations may be satisfied ; but if I have a demand against both, the
creditors of B. have no right to compel me to seek payment from A.,
if not founded on some equity giving B. the right, for his own sake, to
compel me to seek payment from A.:" JEx parte Kendall, 17 Ves.
620.

It may here be mentioned that the Court will marshal assets, al-
though the right to marshal may not be distinctly raised by the plead-
ings: Gibbs V. Ougier, (12 Ves. 413.)

The doctrine of marshalling is most frequently brought into exercise
in administering the assets of a deceased person.

1st. Between creditors When under the old law creditors by simple

contract had no claim upon real assets, unless charged with, or devised
for, the payment of debts, a Court of equity would compel specialty
creditors who might resort, in the first instance, to the personal estate, in
priority of simple contract creditors, and to the real assets, in exclusion
of them, to recover satisfaction, in the first place out of the real assets
as far as they went ; or, if the specialty creditors had already ex-
hausted the personal assets in payment of their claims, the simple con-
tract creditors would be put to stand in their place against the real
assets, whether devised or descended, as far as the specialty creditors
might have exhausted the personal assets {Sagitary v. Hyde, 1 Vern.
455 ; Neaue v. Alderton, 1 Eq. Ca. Abr. 144 ; Wilson v. Fielding, 2
Vern. 763 ; Gallon v. Hancock, 2 Atk. 436) ; so would a voluntary
*specialty creditor, though liable to be postponed to simple con-
L -I tract creditors: Lomas v. Wright, 2 Russ. & My. 769. And

ALDEICH V. COOPER. 241

a specialty creditor, to whose debt cop.yholds (previous to 3 & 4
Will. 3, c. 104) -were not liable, might stand in the place of a mortgagee
of the copyholds : Owynne v. Edwards, 2 Russ. 289, n.

But simple contract creditors were not entitled to have a larger fund
for paj'ment of their debts than they had originally. Thus, in Cradock
V. Piper, 15 Sim. 301, where specialty creditors had exhausted their
debtor's personal estate, a decree was made for marshalling his assets.
A considerable time elapsed before the real estate could be made avail-
able for the purposes of the decree: it was held, by Sir L. Shadwell,
V. C, that the simple contract creditors were not entitled to have the
interest which would have accrued on the specialty debts if they had
remained unsatisfied, as well as the amount of the personal estate,
raised out of the real estate and applied towards satisfaction of their
debts.

Where, however, specialty debts of a deceased person had been paid
out of his personal estate, and at the time of such payment the personal
estate was sufficient also to pay his simple contract debts, and the ex-
ecutor Hubsequently committed a devastavit, which rendered the per-
sonal estate insufficient to pay simple contract creditors, it was held by
Lord Chancellor Brady, that they were entitled to be paid out of the
real estate of the debtor, to the extent to which the personal estate had
been applied in payment of the specialty debts : Ellard v. Cooper, 1
Ir. Ch. Rep. 376 ; but see Kearnan v. Fitzsimon, 3 Ridg. P. C. 16.

The statutes 3 & 4 Will. 4, c. 104, rendering freehold and copyhold
estates liable to simple contract debts, and 32 & 33 Vict. c. 46, making
the debts by simple contract of persons dying on or after the 1st of
Jan., 1872, payable pari passu, with their debts by specialty, have ob-
viated the necessity of the Court resorting to the doctrine of marshal-
ling, for enforcing their payment.

The question has been raised, whether, in the administration of the
assets of a deceased mortgagor, the mortgagee may prove for the whole
amount of the debt due to him, and also realise his securitjr. In
Greenwood v. Taylor, 1 Russ. & My. 185, a mortgagee petitioned for
the sale of his security, and to be permitted to prove the full amount
of his debt in a suit for the administration of the assets of the deceased
mortgagor. It was held by Sir J. Leach, M. R., that be could prove
only for so much of his debt as might remain unpaid by the produce of
the mortgaged estate. " The rule in bankruptcy," observed his Honor,
" must be applied here ; and the mortgagee cannot be permitted to
prove for the full amount of his debt, but *only for so much as
the mortgaged estate will not extend to pay. This rule is not L -^
founded, as has been argued, upon the peculiar jurisdiction in bank-
ruptcy, but rests upon the general principles of a Court of Equity' in the
administration of assets. The mortgagee who has two funds, as against
the other specialty creditors who have but one fund, must resort first
VOL. II 16

242 MARSHALLING ASSETS.

to the mortgage security, and can claim against the common fund only
what the mortgaged estate is deficient to pay.'' The case, however
(Greenwood v. Taylor), has been disapproved of by Lord Cottenham,
who, in commenting upon it, remarks that, " with respect to the princi-
ple of that case, it is to be observed, that a mortgagee has a double
security : he has a right to proceed against both, and to make the best
he can of both ; why he should be deprived of this right because the
debtor dies, and dies insolvent, it is not very easy to see." Mason v.
Bogg, 2 My. & Cr. 448, by which it is established that in an adminis-
tration suit a mortgagee may prove his whole debt and afterwards
realise his security for the difference ; and see Borne v. Young, 3 Y. &
C. Exch. Ca. 194; 4 Y. & C. Exch. Ca. 204; Tipping y. Power, I
Hare, 410; King v. Smith, 2 Hare, 239 ; Wickenden v. Rayson, 6 De
G. Mac. & G. 210; Armstrong v. Storer, 14 Beav. 535; Tuckley v.
Thompson, 1 J. & Hera. 130.

The same rule is followed where a company is being wound up under
the Companies Act, 1862, and a creditor holding security is entitled to
prove for the whole amount that is due to him, and not merely, as in
bankruptcy, for the balance remaining due, after realising or valuing
his security ; and he can prove for the amount due at the time his claim
was sent in, without regard to securities which have been realised by
him between the sending in his claim and its being adjudicated upon :
Kellock^s case, 3 L. R. Ch. App. '169 ; Inre Oriental Commercial Bank,
6 L. R. Eq. 582.

2nd. Between Legatees The principle of marshalling is applicable

between legatees ; as where a testator has charged one or more legacies
upon the real estate, and other legacies are not so charged ; if the per-
sonal estate prove insufficient to pay them all, the legacies charged on
the real estate shall be paid thereout ; or if they have been paid out of
the personal estate, the other legacies, as to so much, shall stand in
their place as a charge upon the land: Hanhy v. Roberts, Amb. 127 ;
Masters v. Masters, 1 P. Wms. 421 ; Bligh v. Earl of Darnley, 2 P.
Wms. 619; Bonner v. Bonner, 13 Ves. 379; Scales v. Collins, 9
Hare, 656.

But where the charge of a legacy upon real estate fails to affect it, in
consequence of an event happening subsequent to the death of the testa-
tor, as the *death of the legatee before the time of payment, the
L -' Court will not marshal assets so as to turn such legacy upon the
personal estate, in which case it would be vested and transmissible,
whereas, as against the real estate, it would sink by the death of the
legatee : Browse v. Abingdon, 1 Atk. 482 ; and see Pearce v. Loman,
3 "Ves. 135 ; there a legacy charged upon real estate, and payable at a
future day, was held b}' Lord Rosslyn to sink as to the real estate by
the death of the legatee, before the time of payment ; and that the
assets could not be marshalled. " There is a singularitj^," observes.

ALDRICH V. COOPER. 243

his Lordship, " in the doctrine, as it now stands, that, as far as
it affects one fund it is good ; as far as it affects the other, bad ; but it
would be still more singular if it shall sink in one case and not in the
other, but the land, making good the personal estate shall be charged.
The point was of very little moment in Reynish v. Martin (3 Atk. 330 ;
1 Wils. 130). Therefore I would not follow that case to introduce a
new point with regard to marshalling assets against established rules.
The assets cannot be marshalled. It would be directly against Prowae
V. Abingdon ; the contingency is the same ; and I cannot charge the real
estate indirectly." And see Tombs v. Bach, 2 Coll. 504.

The demand of a simple contract creditor, as against the real estate
of a testator, which would otherwise be barred by the Statute of Limi-
tations, will not be kept alive so as to preclude the operation of the
statute, by the effect of any right which might exist, or might have ex-
isted among the parties, to have the assets of the testator marshalled.
Fordham v. Wallis, 10 Hare, 217, 229, and the remarks there upon
Vickers v. Oliver, 1 Y. & C. C. C. 211 ; Gibbs v. Ougier, 12 Ves. 413,
and Busby v. Seymour, 1 J. & L. 52Y.

3rd. Between creditors and legatees " One rule of marshalling as-
sets," observes Lord Hardwicke, " is clear, if there are debts by spe-
cialty and legacies, and no devise of tlie real estate, but it descends ; if
the creditors exhaust the personal estate, the legatees may stand in
their place, and come upon the real estate ; this is against the heir-at-
law." Eanby v. Boberts, Amb. 128; 8. C, Dick. 105. "For although,"
as observed by Lord Eldon, in the principal case, " in the cases of lega-
tees against assets descended, a legatee has not so strong a claim to this
species of equity as a creditor, but the mere bounty of the testator ena-
bles the legatee to call for this species of marshalling ; that, if those
creditors, having a right to go to the real estate descended, will go to
the personal estate, the choice of the creditors shall not determine
whether the legatees shall be paid or not." And see * Culpepper ri^na-i
V. Ashton, 2 Ch. Ca. IIT ; Tipping v. Tipping, 1 P. Wms. TSO ; ■'

Lucy V. Gardener, Bunb. IS"! ; Lutkins v. Leigh, Ca. t. Talb. 54 ; Bowa-
man v. Beeve,. Free. Ch. 577.

And it is as clear, " that if one devises his real estate, and gives gene-
ral pecuniary legacies not charged on that real estate, and dies, leaving
specialty debts, and the specialty creditors exhaust the personal estate,
the legatees shall not stand in their place and cbme on the realty, be-
cause it was the intention of the testator that the devisee should have the
real estate, as well as the legatees be paid : " Hanby v. Boberts, Amb.
128 : and see Clifton 7. Burt, 1 P. Wms. 678 ; Scott v. Scott, Amb. 383 ;
1 Eden, 458 ; Mirehouse v. Scaife, 2 My. & Cr. 695 ; Keeling v. Brown,
5 Ves. 359 ; nor will a specific legatee be allowed to stand in the place
of specialty creditors as against real estate devised (see Haslewood v.

J44 MARSHALLING ASSETS.

Pope, 3 P. Wms. 324, 5th Resolution) ; although, since 8 & 4 Will. 4, c
106, the devisee be the heir; Strickland v. Strickland, 10 Sim. 3T4.

However, it is now settled that a devisee and a specific legatee shall
iontribute pro rata to satisfy the specialty debts of the testator which
lis general personal estate is insufficient to pay. See Long v. Short, 1
P. "Wms. 403; Young v. Sassard, 1 J. & L. 466; Gervis v. Oervis. 14
Sim. 654. In Tombs v. Boch, 2 Coll. 490, this subject is most elabo-
rately discussed by the Vice- Chancellor Knight Bruce, who comes to
this conclusion upon the principle, " that everj^ will ought to be read as
in effect embodying a declaration by the testator, that the payment of
bis debts shall be as far as possible so arranged as not to disappoint any
of the gifts made by it, unless the instrument discloses a different
intention."

In Bensman v. Fryer, 3 L. R. Ch. App. 420, Lord Chelmsford, C,
seems by mistake to have made a pecuniary legatee and specific devisee
3ontribute ratably towards payment of debts. See Collins v. Lewis, 8
L. R. Eq. 108.

It seems that previous to the Wills Act (1 Vict. c. 26), a pecuniary
legatee was not entitled to stand in the place of a creditor who had ex-
hausted the personal assets as against a residuary devisee, upon tlie
ground that previous to the Wills Act, every residuary devise was in
reality specific, as it only comprehended property of which the testator
was seised at the time of making his will. See Spong v. Spong, 1 Y. &
J. 800, 311 ; Mirehouse v. Scaife, 2 My. & Cr.695.

It has been held by some learned judges, that inasmuch as a residuary
devise, subsequent to the Wills Act, comprehends all the real property
of which the testator is seised at his death, such devise is not specific,
and that a pecuniary legatee whose fund has been exhausted by credi-
r*qqi tors, *had a right, under the doctrine of marshalling, to stand in
his place as against the residuary devisee (Dady v. Hartridge, 1
Dr. & Sm. 236 ; Cogswell v. Armstrong, 2 K. & J. 227 ; Dyer v. Bes-
sonett, 4 Ir. Ch. Rep. 382; Barnwell v. Iremonger, 1 Dr. & Sm. 242;
Rodbourn v. Mold, 13 W. R. (V. C. K.) 854 ; 35 L. J. (Ch.) 61 ; Rothe-
ram v. Rotheram, 26 Beav. 465; Bethell v. Green, 34 Beav. 302; Hens-
m,an v. Fryer, 2 L. R. Eq. 627). The opinion has, however, since pre-
vailed that a residuarj' devise of real estate remains specific, notwith-
standing the 24th section of the Wills Act makes it speak as if it had
been executed immedietely before the death of the testator, and that a
pecuniary legatee has consequently no right to marshal assets as against
residuary devisees : Pearmain v. Twiss, 2 Giff. 130 ; Hensman v. Fryer,
3 L. R. Ch. App. 420 ; Gibbins v. Fyden, 7 L. R. Eq. 371 ; West v. Law-
day, 2 I. Rep. Eq. 517 ; Collins v. Lewis, 8 L. R. Eq. 708.

Although, as we have before observed, a legatee is not entitled to
stand in the place of a specialty creditor, as against real assets devised,
nevertheless, where a mortgagee of a devised, as well as of a descended

ALDRICH V. COOPER. 245

estate, has exhausted the personal assets by resorting to them in the
first instance, a legatee may stand in bis place, and be satisfied out of
the mortgaged premises, to the extent of the personalty applied in their
exoneration ; for the application of the personal assets m exoneration
of the real estate mortgaged, does not take place so as to defeat any
legacy; {Hoff''H Appeal, 12 Harris, 200.) See Forrester y. Lord Leigh,
Amb. 1*71 ; Lutkins v. Leigh, Ca. t. Talb. 53 ; Lucy v. Gardener, Bunb.
131 ; Howell v. Price, 1 P. Wms. 294 ; Oneal v. Mead, 1 P. Wms. 693 ;
Bavies v. Gardiner, 2 P. Wms. 190 ; Eider v. Wager, 2 P. Wms. 335 ;
ante, Vol. i., p. 673 ; Middleton v. Middleton, 15 Beav. 450 ; and see
Wythe V. Henniker, 2 My. & K. 635, 644 ; where Forrester v. Lord
Leigh was followed by Sir John Leach, althdligh the principle upon
which it was decided was justly questioned. The same view was taken
by Sir James Wigram, Y. C, who considered that the rule laid down
in that case ought not to be extended. See Johnson v. Child, 4 Hare,
87 ; there the testator by his will bequeathed an annuity to his wife for
her life, and made it a primary charge, in preference to all other lega-
cies, on a leasehold estate, which was, together with certain policies of
insurance on the life of the testator, subject to two mortgages ; and he
directed that, if the rents and profits of such leasehold estate should be
insufficient to pay the wife's annuity, then the same should be paid out
of his other personal estate. The mortgages were paid off by the exe-
cutors out of the produce of the policies and the general personal es-
tate. It was *held, bj"- Sir J. Wigram, V. C, that a wife's an- r=K][00l
nuity, so far as it fell upon the personal estate, other than the
leasehold estate specifically charged, was not entitled to priority over
the other legacies ; that the mortgage debts, to which the leasehold es-
tate specifically charged with the annuity was subject, should be appor-
tioned rateably upon the leasehold estate and the policies of insurance,
according to their respective value and amount ; and that the legatees
(other than the wife) were entitled to have the assets marshalled, and
to stand in the place of the mortgagees of the leasehold estate, to the
extent of that part of the mortgage debts which should be apportioned
thereupon. " It is not very easy," observed his Honor, " to understand
the principle upon which the Court has proceeded in some of the cases
referred to. The rule of law is clear, that a testator, by devising lands
expressly ' subject to a mortgage,' does not thereby declare any inten-
tion that the devisee shall take cum onere as against the testator's per-
sonal estate. It is equally well settled, that the amount of a testator's
general personal estate is not a circumstance from which any inference
can be legitimately drawn as to the construction of his will. Yet, if the
amount of a testator's personal estate be insuflftcient for the payment
of his debts and legacies, the Court discovers an intention on tlie part
of the testator, that the devisee of his real estate, subject to a mortgage,
should take it cum onere. If the Court, in that state of circumstances,

246 MARSHALLING ASSETS.

lad decided upon apportioning the deficiency between tlie pecuniary
egatees and the devisee of the land, a reason might have been found
Tor the determination, in the consideration that the Court was dividing
I burthen which the caprice of the creditor miglit otherwise have
ihrown wholly upon either. But that is not the determination of the
Court. The Court is active in throwing the burthen wholly upon the
ievisee of the land, upon the party apparently, and upon the ordinary
principles of the Court, entitled to be exonerated ; and it is remarkable,
ihat in Forrester v. Lord Leigh (Amb. lYl), the possibility of this very
iircumstance is stated as the reason -why the Court will not, in favour
5f a peeuniarj' legatee, marshal the assets, by compelling a bond credi-
;or to proceed against Revised estates.

" I am, however, bound by authority, and upon the authorities I
;hink the specific legatee of the leasehold must take the legacy cum
)nere, so far as the pecuniary legatees may be entitled, under the rule
•eferred to, to have their legacies protected.

" The question then remains, what is the onus with which he must be
sharged ? If the policies, as well as the leaseholds, had been specifl-
;ally given, there must have been an apportionment of the mortgage

"*

101]

*debts between the leaseholds and policies ; and by reasoning

analogous to that by which I suppose the Court to be governed
n holding the pecuniary legatees entitled to come upon the property
iharged with the debts in the place of the mortgagee, I think the ap-
portionment must still take place. The Court compels the creditor to
;ake payment of his debt out of his security, or places the legatees in
;he same situation as if he had done so, not because the security is spe-
;ifically bequeathed, but in spite of that circumstance. A rule which,
n a specific case, marshals the assets in favour of pecuniary legatees at
ihe expense of specific legatees, is not to be extended bej'ond the letter
)f authorit}', which only confines the creditor to his entire security."

A pecuniary legatee may stand in the place of a vendor, who, having
I lien upon land descended for unpaid purchase-money, has resorted to
he personalty in the first instance (see Spoule v. Prior, 8 Sim. 189) ;
md notwithstanding the case of Wythe v. Henniker, 2 My. & K. 635,
he more recent opinion seems to be that a pecuniary legatee will have
he same right as against a person entitled to a lien on land that has
)een devised. See Birds v. Askey, 24 Beav. 618. There a trustee
advanced to A. B., one of his cestuis que trust, a part of the trust
\inds, to enable him to purchase a real estate. A. B. died without hav-
ng repaid the money, having devised the estate, and his personal estate
?as insufficient to pay his debts and legacies. It was held by Sir John
lomilly, M. R., first, that there was a lien on the estate for the trust
unds ; and, secondly, that the pecuniary legatees had, as against the
ievisees, a right of marshalling so as to have the lien satisfied prime-

ALDRICH V. COOPER. 2i7

rily, out of the purchased estate. See also Lord Lilford v. Powys
Keck, 1 L. R. Eq. 34*7.

As to marshalling for vendor's lien, see ante, A'ol. i., p. 321.

So, if land be devised for, or made subject to, the payment of debts,
assets will be marshalled in favour of legatees, or annuitants, who will
stand in the place of the creditors who may have been satisfied out of
the personal assets : Foster v. Gooh, 3 Bro. C. C. 347 ; Bradford v.
Foley, 3 Bro. C. C. 351, n. ; Webster v. Alsop, 3 Bro. C. C. 352, n. ;
Arnold v. Chapman, 1 Ves. 110 ; Norman v. Morrell, 4 Ves. T69 ; Pat-
erson v. Scott, 1 De G. Mac. & G. 531 ; Surtees v. Parkin, 19 Beav.
406 ; Rickard v. Barrett, 3 E. & J. 289.

As simple contract creditors have now, under 3 & 4 Will. 4, c. 104, a
right to demand payment of their debts out of the real estate of the
deceased debtor, and have therefore a double fund out of which they
may receive satisfaction, it seems on principle to follow, that if they
exhaust the *personal assets, the legatees may stand in their r^^j^g-i
place, as to the real estate descended. This has, indeed, been
questioned by a late learned author, who observes, that '' the statute
merely declares the land assets to be administered in equity, and does
not therefore give the creditors an election between the funds, but com-
pels them to exhaust the personalty before they can have recourse to
the land :" Adams, 2Y6. However, where, in a case before the Vice-
Chancellor Knight Bruce, it was argued that the stats. 3 Will. & M. c.
14, and 3 & 4 Will. 4, c. 104, were intended for the relief of creditors,
and not of legatees, his Honor was clearly in favour of marshalling
for the legatees in such a case. " The equity of marshalling," he
observes, " arises from a creditor's power to resort, not from the mode
in which he acquired the power of resorting, to each or either of two
funds belonging to the debtor, whose rights, subject to the debt, have
become divided ; and though I do not forget the passages found in the
reports of Galton v. Hancock (2 Atk. 424), and Forrester v. Lord
Leigh (Amb. Itl), it seems to me impossible, consistently with the
principles of decisions of the highest authority, or consistently with
any legal principle, to take the view of the effect and consequences of
a liability to creditors, created merely by statute, that the devisees take
in this case. Certainly, the liability, in general, of personal estate in
the first instance to the debts of a deceased debtor, the intent of the
Statute of Fraudulent Devises, and the intent of the statute of 1833,
do not, in my judgment, establish this proposition. I have dwelt the
more upon this argument, grounded on the nature and effect of statu-
tory liability to debts, because, if it is well founded, it seems in sub-
stance not to stop short of asserting that, inasmuch as it is by statute
that copyholds are assets for creditors, and freeholds for simple con-
tract creditors, therefore there cannot be marshalling for legatees
against descended copyholds, or in respect of simple contract debts

248 MARSHALLING ASSETS.

against descended freeholds ; it will surprise me exceedingly to hear of
such a doctrine having met, or meeting with support or acceptance :"
Tombs V. Soch, 2 Coll. 499.

Paraphernalia.] — Although with the exception of necessary wear-
ing apparel (2 Ves. T), a widow's paraphernalia are liable to her
deceased husband's debts, she will be preferred to a general legatee,
and be entitled, therefore, to marshal assets in all those cases in which
a general legatee would be entitled to do so ; for instance, as against
real assets descended ( Tipping v. Tipping, 1 P. Wms. Y30 ; Probert v.
Gilford, 1 Atk. 440 . Amb. 6 ; 2 P. Wms. *544, note by Cox) ;
L -I or real assets devised, if subjected- by will to the payment of
debts (Incledon v. Northcote, 3 Atk. 438 ; Boynton v. ParJchurst, 1
Bro. C. C. 5*76 ; 1 Cox, 106) ; and if a devised estate be subject to a
mortgage or other specific incumbrance, she will be entitled to marshal
the assets as against the devisee, by , throwing the charge upon the
estate, as the legatee would have that right (Oneal v. Mead, 1 P. Wms.
693 ; Lutkins v. Leigh, Ca. t. Talb. 53) ; but not, it seems, if the estate
devised be neither subjected by will to payment of debts, nor subject
to a mortgage or specific incumbrance ; Ridout v. Plymouth, 2 Atk.
104 ; Probert v. Clifford, 2 P. Wms. 545, n. ; Forrester v. Leigh, Amb.
ITl. But the same claims on the part of the widow would, it appears,
prevail against specific legatees : Graham v. Londonderry, 3 Atk. 395 ;
1 P. Wms. 731; 2 Atk. 18; 3 Atk. 369; sed vide, contra. Burton v.
Pierpont, 2 P. Wms. 79.

As to Paraphernalia, see ante, vol. i. p. 538.

Assets not marshalled for a Charity.'] — An exception occurs to the
equitable doctrine of marshalling, with respect to charities ; for it may
be stated, as a general rule, that assets are never marshalled in favour
of legacies given to charities, upon the ground as stated by Lord
Hardwicke, in Mogg v. Hodges, 2 Ves. 53, that a Court of equity is not
warranted in setting up a rule of equity contrary to the common rules
of the Court, merely to support a bequest which is contrary to law.
Thus, if a testator gave his real estate and personal estate, consisting
of personalty savouring of realtj;^, as leaseholds and mortgage securities,
and also pure personalty, to trustees, upon trust to sell, and pay his
debts and legacies, and bequeathed the residue to a charity, equit}- will
not marshal the assets by throwing the debts and ordinary legacies
upon the proceeds of the real estate, and the personalty savouring of
the realty, in order to leave the pure personalty for the charity : Mogg
V. Hodges, 2 Ves. 52 ; Attorney-General v. Tyndal, 2 Eden, 207 ; S. C,
Amb. 614 ; Foster v. Blagden, Amb. 704 ; Middleton v. Spicer, 1 Bro.
C. C. 201 ; Attorney-General v. Earl of Winchelsea, 3 Bro. C. C. 373 ;
Makeham v. Hooper, 4 Bro. C. C. 153 ; Crosbie v. Mayor of Liverpool,
1 Russ. & My. 761, n. ; Fowdrin v. Gowdey, 3 My. & K. 397 ; Johnson
V. Woods, 2 Beav. 409.

ALDRICH V. COOPER. 249

There has, however, been a question whether there could not be a
marshalling of assets where a particular legacy was given to a charity ;
and Lord Hardwicke, in several cases, was of opinion that it ought to
be done: {Attorney -General v. Lord Weymouth, Amb. 25 ; Attorney-
General V. Graves, Id. 155 ; Attorney-General v. Tomkins, *Id.
216) ; but it has now been decided beyond all doubt, that if a L ^
simple pecuniary legacy is given out of two sorts of personalty, there
must be an abatement in the proportion of the mixed to the pure per-
sonalty {Ridges v. Morrison, 1 Cox, 180 ; Walker v. Childs, Amb.
524 ; Attorney-General v. Tyndal, Id. 614 ; S. C, 2 Eden, 20t ; Foster
V. Blagden, Amb. 704 ; Makeham v. Hooper, 4 Bro. C. C. 153 ; Hobson
V. Blackburn, 1 Kee. 273 ; see also Williams v. Kershaw, 1 Kee. 214,
n. ; Philanthropic Society v. Kemp, 4 Beav. 581) ; or as Lord Cotten-
ham has expressed himself, " The rule of the Court adopted in all such
cases is, to appropriate the fund as if no legal objection existed as to
applying any part of it to the charity legacies ; then holding so much
of the charity legacies to fail as would, in that way, be to be paid out
of the prohibited fund: " Williams v. Kershaw, 1 Kee. 2Y5, n.; see also
Waite V. Webb, 6 Madd. Yl ; Johnson v. Lord Sarrowby, Johns. 425 ;
Jaunceyv. The Attorney-General, 3 Giff. 308; Scott v. Forristall, 10
W. R. (V. C. S.) 37 ; and this apportionment should be made according
to the respective values of the pure and impure personalty at the testa-
tor's death : Calvert v. Armitage, 2 N. R. (V. C. W.) 60, overruling on
this point Robinson v. The Governors of London Hospital, 10 Hare,
19.

In a singular case, where executors were directed to purchase a presen-
tation to Christ's Hospital, the result of the rule against marslialling
assets for a charity was, that the bequests failed altogether, there not
being sufficient money from the pure personalty alone to affect the pur-
chase ; Cherry v. Mott, 1 My. & Cr. 123.

Although a court of equity will not marshal assets for charitable lega-
cies, a testator may in effect himself marshal or arrange his assets, by
directing his charitable legacies to be paid exclusively out of his pure
personalty, and the court will, as it is not illegal, give effect to his in-
tention: Robinson v. Gelhard, 3 Mac. & G. Y35; Sturge v. Dimsdale,
6 Beav. 462. See however, The Philanthropic Society v. Kemp, 4
Beav. 581 ; Nickisson v. Cockill, 32 L. J. (N. S.) Ch. 753 ; Wigg v.
Nicholl, 20 W. R. (M. R.) 738 ; 14 L. R. Eq. 92.

And it seems that where a testator has charged his real estate with
payment of his debts and has directed his charity legacies to be paid
out of his pure personalty, the charity legatees will have a right to stand
in the place of creditors who may have exhausted the pure personalt}-,
inasmuch as it is not the Court, but the testator who in such cases mar-
shals the assets: Attorney-General v. Lord Mountmorris, 1 Dick. 379-

Although the testator may have directed his charitable legacies to be

250 MARSHALLING ASSETS.

paid out of his pure personalty *in priority of other legacies, if
L J he has given no direction as to the funds out of which his debts
and funeral and testamentary expenses are to be paid, the pure personal
estate must contribute with the other personal estate to their payment,
before it can be applied in satisfaction of the charitable legacies. See
Tempest v. Tempest, 1 De Gr. Mac. & Gr. 470, where Lord Cranworth, C,
overruled the decision of Sir W. Page Wood, V. C, reported 2 K. & J.
635.

It seems that the rule of the Courts of equity in England, which
will not allow marshalling in favour of legacies given to charities, is
not applicable to India : Macdonald v. Macdonald, 20 W. R. (V. C. B.)
739; 14 L. R. Eq. 60.

Marshalling Securities.] — The doctrine of m,arshaUing is not con-
fined to the administration of assets ; but it is applied to other eases,
where the parties are living. Thus, it has been laid down, that " if a
person, who has two real estates, mortgages both to one person, and
afterwards only one estate to a second mortgagee, who had no notice
of the first, the Court, in order to relieve the second mortgagee, has
directed the first to take his satisfaction out of that estate only which
is not in mortgage of the second mortgagee, if that is sufficient to
satisfy the first mortgage, in order to make room for the second mort-
gagee, even though the estates descended to two different persons :"
per Lord Hardwicke, C, in Lanoy v. Duke of Athol, 2 Atk. 446. This
seems to be a correct exposition of the law, with this exception, that it
seems to be immaterial whether the second mortgagee has notice of the
first mortgage or not : see also Baldwin v. Belcher, 3 D. & War. 1Y6 ;
Hughes v. Williams, 3 Mac. & G. 690 ; In re Cornwall, 2 C. & L. 131 ;
3 D. & War. 1Y3 ; Tidd v. Lister, 10 Hare, IST ; 8 De G. Mac. & G.
85Y ; In re Fox, 5 Ir. Ch. Rep. 541 ; Gibson v. Seagrim, 20 Beav. 614 ;
and see and consider In re Jones, a Minor, 2 Ir. Ch. Rep. 544 ; Hey-
man v. Dubois, 13 L. R. Eq. 168.

And if one of two estates in mortgage is subject to a portion, the
person entitled to the portion may, if it be necessary, compel the mort-
gagee to resort to the other estate, so that the payment of the portion
as well as the mortgage may be worked out : Lord Bancliffe v. Par-
kyns, 6 Dow, 216.

And estates comprised in one mortgage will be marshalled in favour
of a voluntary settlement, so as to throw the debt on the unsettled
estates. Thus, in Hales v. Cox, 32 Beav. 118, A. B. executed a volun-
tary settlement of real estate to uses in favour of his four children, and
he covenanted that the estate should remain to those uses and for quiet
enjoyment. A. B. afterwards mortgaged the settled estate *with
L -' his own unsettled estates, and died. It was held by Sir John
Rorailly, M. R., that the children were entitled to throw the mortgages
on the unsettled estate, and as against the legatees to prove under the

ALDRICH V. COOPER. 251

covenants against the settlor's assets for the damage tbey had sus-
tained by tlie mortgage. " It is clear," said his Honor, " that the
persons who take under the voluntary settlement would, as regards
the subsequent mortgages, not only take the property subject to
these mortgages, but the mortgages ought, by marshalling, to be
thrown as much as possible on the unsettled propertv, so as to liberate
the settled property from the mortgage. If, by these means, the settled
property will not be altogether freed from the mortgages, then I tbink
that the persons who are entitled to tlie benefit of the covenants for
quiet enjoyment contained in the settlement have a right to prove
against the assets of the settlor for the amount to which they have
been damaged, by reason of his subsequentlj' mortgaging the settled
property ; that is, after providing for the testator's debts, they are
entitled to priority over the legatees." See the remarks, on this ease,
by Christian, L. J., in Ker v. Ker, 4 I. R. Eq. 15, reversing S. C, 3 I.
R. Eq. 489.

The right to marshal securities is applicable as against a surety to
whom, on payment of the debt, they have been assigned. Thus, in
South V. Bloxam, 2 Hem. & Mill. 457, there was a mortgage of two
funds to A. with a covenant "by a surety. This was followed by a
second mortgage of one of the funds to B. B.'s fund having been
exhausted in part payment of A.'s debt, and A.'s mortgage having
been transferred to the surety on payment by him of the balance, it
was held by Sir W. Page Wood, V. C, that B. had a right to marshal
the securities against the surety.

In the case of The Solicitors and General Life Assurance Society
V. Lamb, 2 De Gr. Jo. & Sm. 251, a policy of life assurance contained a
provision that, if the assured should die by his own hand, the policy
should be void, except to the extent of interest acquired therein by
actual assignment by deed for valuable consideration, or as security
or indemnity, or by virtue of any legal or equitable lien as security for
money. The assured assigned this policy by deed, by way of mortgage
to secure an amount far exceeding the sum assured, the security includ-
ing also real estates of considerable value. The assured afterwards
died by his own hand. The office paid to the mortgagee the sum
assured, and then filed a bill claiming to have the mortgage debt
thrown primarily on the real estate comprised in the security, or at
least to have it apportioned between the policy money and the estates
according *to their values, and to have the whole or the appor-
tioned part of the [jolicy moneys raised out of those estates L -^
and repaid. It was held by the Lords Justices of tlie Court of Appeal,
affirming the decision of Sir W. Page Wood, V. C, (reported 1 Hem.
& Mill. 716), that (apart from the question as to the effect of the pa}--
ment by the office) the office had no equity against the real estates
comprised in the mortgage.

252 MARSHALLING ASSKTS.

Marshalling not enforced to the prejudice of third ■parties.\ — Bat
marshalling ■will not be enforced to the prejudice of a third party.
Thus, in Averall v. Wade, L. & G. t. Sugd. 252, where a person, being
seised of several estates, and indebted by judgments, settled one of
the estates for valuable consideration, with a covenant against incum-
brances, and subsequently acknowledged other judgments, it was con-
tended, by the subsequent judgment-creditors, that, as they only
affected the unsettled estates, on the principle in Aldrich v. Cooper, as
they had only one fund, they had a right to compel the prior judgment-
creditors, who had two funds, — the settled and unsettled estates, — to
resort to the settled estates ; or, at any rate, that the settled estates
ought to contribute to the payment of the prior judgments. Lord
Chancellor Sugden, however, held that the subsequent judgment credi-
tors had no equity to compel the prior judgment-creditors to resort to
the settled estates: on the contrary, that the prior judgments should
be thrown altogether on the unsettled estates, and that the subsequent
judgment-creditors had no right to make the settled estates contribute;
observing, after a close examination of Aldrich v. Cooper, that, upon
the whole of the case, you will find Lord Eldon, in the application of
the principle, " carefully avoids dealirtg with the rights of third per-
sons intervening." So, in Barnes v. Bacster, 1 Y. & C. C. C. 401,
Eacster being seised of Foxhall Coppice, and a piece of land marked
in a plan of the estate No. 32, mortgaged, in l'I92, Foxhall to Barnes ;
in 1Y95, Foxhall to Hartwright ; in 1800, Foxhall and No. 32 to
Barnes; and in 1804, Foxhall and No. 32 to Williams; the subsequent
incumbrancers took with notice. It was held, by Sir J. L. Knight
Bruce, V. C, that the Court ought not, as against Williams, to marshal
the securities. His Honor said, that, circumstanced as the case was,
Hartwright and Williams stood, with regard to the matter in dispute,
on an equal footing ; that Barnes ought to be paid out of the respec-
tive proceeds of No. 32, and Foxhall, pari passu and rateably, accord-
ing to their amounts ; that the residue of the proceeds of Foxhall
ought to be applied towards paying Hartwright, and that the residue
of the produce of No. 32 ought to be applied towards paying Williams :
r*in8n * conclusion, as he *considered, entirely in accordance with the
principles on which Lanoy v. Duchess of Athol ; Aldrich v.
Cooper, and Averall v. Wade, were decided. See also Bugden v. Big-
nold, 2 Y. & C. C. C. 377 ; Gibson v. Seagrim, 20 Beav. 618 ; Strange
V. Hawkes, 4 De G. & Jo. 632 ; In re Laivder's Estate, 111. Ch. R.
346. In re Barkers Estate, 15 Ir. Ch. Rep. 316 ; Dolphin v. Aylward,
4 L. R. Ho. Lo. 486 ; In re Mower's Trusts, 8 L. R. Eq. 110.

It iias, however, been held in Ireland, that a first judgment mort-
gage creditor has a right to marshal, as against a second judgment
mortgage creditor. See In re Lynch's Estate, 1 I. R. Eq. 396 ; in this
case there was first a mortgage by deed, of lands A. and B. ; secondly,

ALDRICH V. COOPER. 253

in 1856, two judgments registered as mortgages under the Judgment
Mortgage Act, 1850, against the A. lands; and thirdly, in 1857, a
judgment registered as a mortgage against the entirety of the lands A.
and B. The mortgagees having sold applied in paj-ment of their debt
the whole of lands A., it was held bj' Dobbs, J., that the two judg-
ment creditors of 1856 had a right to marshal as against the judgment
creditor of 1857. " The judgment mortgage creditors of 1856," said
his Lordship, " stand, with regard to the judgment mortgage creditor
of 1857, in the same position as if they were mortgagees under a deed,
whereas the latter is, as to them, in the position of an old judgment-
creditor, and in no better position. Suppose there were, first, a charge
aflfecting the whole of certain lands ; next, a mortgage of a portion ;
next, a judgment affecting the whole ; would the mortgagee have a right
to marshal as against the judgment-creditor ? I consider it a settled
principle that he would, and that the judgment-creditor has no equity
which he could set up to prevent him from doing so. I therefore rule
that these judgment-creditors have a right to be paid in priority to the
judgment mortgage creditor of 1857."

Marshalling in Bankruptcy. '\ — The doctrine also has been carried to
a great extent in bankruptcies ; " for," as observed by Lord Eldon, in
the principal case, " a mortgagee whose interest in the estate was
affected by an extent of the Crown, has found his waj^, even in a ques-
tion with the general creditors, to this relief, that he was held entitled
to stand in the place of the Crown, as to those securities which he
could not affect per directum, because the Crown affected those in
pledge to him ;" and see Sagitary v. Hide, 1 Vern. 455.

In Ex parte, Stephenson, De Gex, 589, a tenant mortgaged some per-
sonal chattels, and being in possession of those and also other personal
chattels, the landlord *distrained for rent upon both sets of r:(:,r,q-i
chattels. The person in possession under the distress was re-
quested by the mortgagee, and consented, to hold possession of the goods,
or at least of the mortgaged goods, for him as well as the landlord,
without prejudice to the landlord's rights. The tenant then became
bankrupt, and after the bankruptcy the landlord's demand was satisfied
by means of a sale of goods, some if not all of which were subjected
to the mortgagee's security, whilst some or all of the goods to which
the security did not extend remained unsold. It was held by Sir J. L.
Knight Bruce, V. C, that the mortgagee was entitled to stand in the
place of the landlord, and to be paid the amount of his mortgage debt
out of the proceeds of the goods taken under the distress which were
not comprised in his security. " The disputed point,'' said his Honor,
" is upon the mortgagee's claim to apply against the assignees the doc-
trine of marshalling ; he asserting, and tliQy denying, that, as between
him and them, such of the goods seised as were not included in his
security were the portion of them first applicable to pay the landlord's

254 MARSHALLING ASSETS.

demand ; and that, consequently, the mortgagee is entitled, against the
assignees, to be placed substantially in the same situation as if the
landlord had regulated his proceedings in conformity with that title. I
have considered the point, and my doubt has been removed. The doe-
trine and rules recognised by Lord Eldon in Aldrich v. Cooper^ seem
to me to reach this case, which, if new in specie, is not so, I think,
generally. Fraud and reputed ownership being out of the question,
the assignees and the bankrupt are here one, so that no fourth persons
have right to intervene ; and the ordinary course, where the first credi-
tor has two funds of a debtor whose second creditor has but one, seems
the right course on this occasion.

" The simple case of a person having lent or entrusted goods to a
man whose landlord distrains for rent, both on those goods and also on
the proper goods of the tenant^ may be thought to exhibit, possibly,
more strikingly than the present, a necessity in point of reason and
justice for judicial interference, but does not, I suppose, in substance
differ from it. The mortgagee being, I think, right in this contention,
I must direct the principle of marshalling to be applied between him
and the assignees accordingly." See also Broadhent v. Barlow, 30 L.
J. (N. S.) Ch. 569 ; 3 De G. F. & Jo. 570.

In Ex parte Alston, 4 L. R. Ch. App. 168, a firm in Cej'lon employed
a firm in England as their agents and factors, and the course of the busi-
ness was that the Ceylon firm consigned cargoes of cofl'ee to the English
r*n (11 ^'^^ ^^^ ®^^® ^^ their account, and drew *bills on the English firm
against the' consignments. Consignments of coffee having been
made in tliis manner, and bills accepted by the English firm against
them, the English firm pledged the coffee (which belonged to the Cey-
lon firm), together with certain securities of their own, with T., their
broker, to secure a large debt due from them to him. The English
firm became insolvent, and execute. 1 a creditors' deed under the Bank-
ruptcy Act, 1861 ; and then T. sold the coffee (which produced more
than sufficient to cover the bills drawn against it, and enough of the
other securities to satisfy his debt, and still held securities of the Eng-
lish firm in his hands. It was held by the Court of Appeal in Chan-
cery that the Ceylon firm were entitled, as against the creditors of the
English firm, to have the securities marshalled, so as to have a lien on
the securities of the English firm remaining in the hands of T., for the
balance due to them in respect of the consignments of coffee. See, also,
In re Westzynthus, 5 B. & Ad. 817 ; Broadbent v. Barlow, 3 De G. P.
and Jo. 570.

Marshalling by the Court of Admiralty.] — The equitable doctrine
of marshalling is put in force by the Court of Admiralty. Thus, in a
case where there are several bonds, and one is secured on the ship and
freight, and another upon the ship, freight, and cargo, the bond-holders
who have a charge on the cargo, will not be allowed to disappoint the

ALDRICH V. COOPER.

2j5

other bond-holders ■who have Done thereon, but -will be compelled to
resort to tlie security against their ship and freight. The Trident,
Simnon, 1 W. Rob. 29, 35 ; La Constancia, 2 W. Rob. 404, 406 ; The
Arab, 5 Jur. N. S. ill ; The Edward Oliver, 1 L. R. Ad. 3t9 ; and the
note to 2' he Gratitudine, L. C. Merc. L. 68, 69, 2nd ed.

Ihe aim of a court of equity, as
it regards the payment of debts, is
equality — that the assets shall
be so distributed as to satisfy all
the creditors ( Torr's Estate, 2
Rawle, 250, 252), and a creditor
will not be allowed arbitrarily to
defeat this rule, by throwing the
whole burden on a particular fund.
This results from the dictate of
natural justice, that where there is
enough for all, it shall be so dis-
tributed as to give each his due.
A creditor who has two funds open
to him, while another creditor has
but one, obviously should not take
the latter fund without placing the
fund which is exclusively within
his reach, at the disposal of the
creditor whom he has deprived
of the means of payment. And,
if he neglects or refuses to fulfil
this duty, it may be enforced by a
decree of subrogation, " The prin-
ciple on which a court of equity pro-
ceeds in marshalling assets," said
Marshall, C. J., in Alston v. Mun-
ford, 1 Brockenborough, 266, " is
that a creditor having his choice of
two funds, ought to exercise his
right of election in such a manner
as not to injure other creditors, who
can resort to only one of these
funds. But if, contrary to equity,
he should so exercise his legal
rights as to exhaust the fund to
which alone other creditors can
resort, then those other creditors

will be placed by a court of equity
in his situation, so far as he has
applied their funds to the satisfac-
tion of his claim."

At common law, creditors by
specialty have a right of recourse
against the real estate of a de-
ceased debtor, while simple eon-
tract creditors were confined to
the personal estate. Hence if the
specialty creditors exhaust the
personal assets, the simple con-
tract creditors will be substituted
for them as against the land.
Tinsly v. Oliver, 5 Munford, 419 ;
Chase V. Lockerman, 11 Gill &
Johnson, 185; Oibson v. M'Cor-
inick, 10 Id. 65 ; Hay don v. Goode,
4 Heming & Munford, 461 ; Cralle
V. Meems, 5, Grattan, 96 ; M'Gaw
V. Huffman 12 Id. 628. In
like manner, a mortgage given
to secure a particular creditor,
may, in the event of a defi-
ciency of the personal estate, be
enforced by the executor against
the heir or devisee for the use of
the other creditors, or to reim-
burse himself; Torr's Estate, 2
Rawle, 250, 254. The principle is
the same where land which has
been bought by the testator during
his life, is paid for out of the assets
of the estate, and the creditors
will then be subrogated to every
remedy that could have been en-
forced by the vendor ; Alston v.
Mumford.

256

M AUSH ALLING ASSETS,

The necessity for the application
of the rule in the administration
of assets after death, has ceased to
exist in England and throughout
the greater part of the United
States ; 2'orr's Estate, 2 Rawle, 250,
254 ; ante, 241 ; Adams' Equity,
275. For as lands are now assets
for the payment of all debts, and
the simple contract creditors can
have recourse to both funds, there
is no reason for confining the spe-
cialtj' creditors to one. In Torr's
Estate, Gibson, C. J., said, that
" where the personal estate is defi-
cient, a court of equity compels a
specialty or mortgage creditor to
obtain satisfaction from the land,
that the personal creditors may
have all the benefit to be drawn
from the personal assets consis-
tently with entire satisfaction of
the mortgage debt, ftecawse at com-
mon law they are shut out from the
land. Now, it is obvious, that the
foundation of their equity in Eng-
land, fails here ; the land being
liable at law, as an auxiliary fund,
to all sorts of debts, whether spe-
cifically charged on it or not ;
there is, therefore, no room for
equitable interference on the
ground of legal inequality. It is
true, that the general creditors
have not the same advantage in
respect of priority as the mort-
gagee, who has a specific lieu.
Should he, however, elect to take
satisfaction out of the personal
assets, the land would be dieen-
cumbered pro tanto, and its ca-
pacity to afibrd satisfaction to the
general creditors, proportionally
increased."

In like manner, the assets may
be marshalled for the purpose of
throwing the burden of debts
which have been specifically
charged on land, where it must
ultimately rest. " To avoid cir-
cuity of suit, a court of equity per-
mits, and sometimes requires, a
creditor who has two funds to re-
sort to for payment of his debt, to
proceed at once against the pri-
mary fund, without subjecting the
owners of the secondary fund to
useless litigation. Where the tes-
tator, therefore, has charged his
real estate, or any part of it, with
the payment of his debts, in ex-
oneration of his personaltj'^, the
creditors may come at once into
this court, to obtain satisfaction
of such debts out of such primary
fund ; although the}' may have a
perfect remedy at law, against the
personal estate in the hands of the
executors;" Smith v. Wykoff, 11
Paige, 5.

In Pennsj'lvania lands have
been liable to be taken in execu-
tion, and sold as chattels from the
earliest period of colonial history.
It is one of many instances in
which America has led the way in
the patli of legal reform. The
change did not take place in Eng-
land until the reign of William
IV. When it occurred, the neces-
sitjf of marshalling assets in aid of
simple contract creditors passed
away; Adams' Eq. 215, ante.
But it may still be requisite
to throw the burden of debts
on the land, in order to leave the
personal estate free for the dis-
charge of pecuniary and specific

ALDRICH V. COOPER.

257

legacies; Wilcox \. Wilcox, 13 Al-
len, 252; Mollan v. Griffith, 3
Paige, 402.

The right to charge the land de-
pends on the inadequacy of the
persona] assets. If these are suf-
ficient, the personal property of
the testator is the primary fund
for the payment of debts and
legacies ; Torr'a Estate, 2 Rawle,
250, 2o4'. If a mortgage creditor
proceeds against the land, the heir
or devisee is prima facie entitled
to reimbursement out of the per-
sonal estate ; Chase v. Locker-
man, 11 Gill & J. 185; Walker's
Estate, 3 Rawle, 229, post.

A chancellor will not refuse to
marshal the assets because the
means are circuitous ; Neff v. Mil-
ler, 8 Barr, 341. If the personal
estate is inadequate, a creditor
who has a direct or indirect right
of recourse to the land, will be
compelled to use it for his own
benefit, or leave it open to the
other creditors. In Cralle v.
Meems, 8 Grattan, 496, the testa-
tor had given a bond to indemnify
an endorser, and the holder of the
note was allowed to stand in the
place of the indorser, and be paid
as a creditor by specialtj^ out of the
real assets, although the endorser
had not been compelled to pay the
note. The court relied on the
principle that securities given for
the protection of a surety may be
en fo reed by the creditor, vol . 1 , 1 1 4.

The principle is beneficially ap-
plied to promote equality in the
distribution of assets, by refusing
creditors who have a legal remedy
the aid of a chancellor, until the
creditors, whose only recourse is to
VOL. II. — IT

the equitable assets, have received
a due proportion of their demands ;
Purdy V. Doyle, 1 Paige, 558 ;
Wilder v. Eeeler, Id. 168. "If
there are both legal and equita-
ble assets to be administered, al-
though this court cannot deprive
a creditor of his legal preference,
over creditors of a different class,
as to the legal assets ; yet, if he
has been partially paid out of such
assets, he will not be permitted to
receive any share of the equitable
assets until the other creditors
have received sufficient to put
them upon an equality with him.
And when that object has been
accomplished, all the creditors will
be entitled to come in upon the
assets which remain, for the pay-
ment of the residue of their debts
ratably; Morrice v. The Bank
of England, Cases Temp. Talbot,
220 ;" Wilder v. Eeeler.

It has been held in analog}' to this
principle, that where property has
been assigned for the payment of
debts, or is in the hands of a
bankrupt or insolvent assignee for
distribution, a creditor who has a
mortgage or other collateral se-
curity', is not entitled to a dividend
on the whole amount of his debt,
but on 80 much only as is not cov-
ered by the security. Such is the es-
tablished rule in bankruptcy in Eng-
land,! Storj'Eq. 633,andithasbeen
adopted in the bankrupt law of the
United States. It is also followed
in Massachusetts in the distribu-
tion of insolvent estates during
the life of the debtor or after his
decease ; Farnum v. Boutelle,
13 Metcalf, 159, and the authori-
ties in New Jersey and Iowa are

258

MARSHALLING ASSETS.

to the same eflfect ; Wurtz v.
Hart, 13 Iowa, 515 : Belly. Flem-
ing, 1 Beasely, 13, 499.

This conclusion has been rejec-
ted in Pennsylvania, on the ground
that as property, of whatever kind,
may be taken in execution in the
ordinary coui'se of law, the dis-
tinction between legal and equi-
table assets does not exist ;
Skunk's Appeal, 2 Barr, 304 ;
Kittera's Estate, 5 Harris, 416 ;
Morris v. Olwine, 10 Id. 44. A
creditor who is secured by bond
and mortgage, may consequently
prove the whole amount of the
debt before an assignee for the
benefit of the creditors, or in the
distribution of an insolvent estate,
unless the sums received from
both funds will together exceed
the amount due ; Kittera's Estate ;
Morris v. Olwine. " Estates," said
Krause, J., in Shunk's Appeal,
" are held to be equitable assets
in chancer^', which are made sub-
ject to the payment of debts by
the act of the debtor ; and which,
without his act, are not answerable
for such purpose. The instrumen-
tality of that court is necessary to
their distribution ; and this it
always withholds from creditors
who refuse to bring into hotchpot
what they may have received out
of legal assets, on the principle
that equality is equity. But equity
follows the law, and adopts the
rules of the courts of law, wher-
ever estates are made legal assets
by statute ; and then it enforces
claims, charges, and antecedent
liens in rem, according to their
priorities, whether or not those
claims, charges, &c., or the assets.

be legal or equitable ; 1 Story, Eq.
520, 524. Now, all the debtor's
property in Pennsylvania is a legal
fund for the payment of demands
upon him ; his chattels are so at
common law, and his lands are
expressly made so by statute ; in
which case it is seen that equity
follows the law. It is not con-
ceived, therefore, that this princi-
ple in equity of enforcing equality
in distributions is applicable here ;
nor that the other principle is ap-
plicable, which seems to result
from the doctrine of marshalling
securities. It is true that when-
ever it can justly be done in this
State, creditors are so placed by
the courts as to restrain those who
have a claim on two funds from
taking away all the chance an-
other may have on one of them
of obtaining satisfaction; but
there is no principle which takes
from a creditor any part of his
security until he is completely
satisfied; 19 Johns. Rep. 493;
and, consequently, if the lien
creditors here have a right at all
to come on the personal property,
they have it without going into
hotchpot, or surrendering part of
their real estate securities. As
between them and the other credi-
tors, the principle of either mar-
shalling assets or securities is in-
operative, and can only be applied
in case of a contest for a surplus
beyond the amount of encumbran-
ces between the assignor and
creditors, who are not secured by
liens. Here, however, there is not
a surplus, but a deficiency.

" That the lien creditors have
a right pari passu with the

ALDRICH V. COOPER.

259

other creditors to come on the
personal fund for a pro rata
share, can scarcely be disputed.
A mortgage is but a collateral
security for tlie debt of the mort-
gagor on the original contract.
The mortgagee is entitled to be
paid out of the personal fund ;
Ram. on Assets ana Debts, 356 ;
and so of judgments, which,
although they merge all minor se-
curities, work no dissolution of
the debt as a personal obligation."

It is held in like manner in some
of the other States, that in the
distribution of an insolvent estate
by an administrator or assignee^
no deduction or abatement is to
be made for collateral securities,
unless their value, or the amount
realized from them, together with
the dividend, exceeds the amount
of the debt ; Findley v. Hosmer,
2 Conn. 339 ; West v. The Bank
of Butland,!^ Yeimont, 103 ; Jar-
vis V. Smith, 1 Abbott, 217 ; Logan
V. Anderson, 18 B. Monroe, 114 ;
Moss V. Ranlet, 2 Xew Hamp.
488.

The rule that a creditor who has a
double remedy, shall not arbitrarily
disappoint another creditor who
has but a single means of obtain-
ing payment, applies during the
lifetime of the debtor, as well as
in his administration of his estate
after death, and is constantly in-
voked for the protection of an in-
cumbrancer who has only one
fund open to him, against a para-
mount incumbrancer who has the
power of recourse to two ; The
New York Steamboat Co. v. The
New Jersey Co., 1 Hopkins, 460 ;
Eawley v. Mannus, 7 Johnson,

Ch. 174, 184. " It is well settled,
that where a party has two funds
from which he can satisfj' his debt,
and another creditor has a lien
posterior in point of time on one
of the funds only, the first creditor
will be compelled to resort to that
fund which the junior creditor can-
not touch, in order that the junior
creditor may avail himself of his
only security ;" Evertson v. Booth,
19 Johnson, 486, 492 ; Ziegler v.
Long, 2 Watts, 205.

The right of the paramount in-
cumbrancer is so far absolute, as it
regards both funds, that he should
not be delayed or hindered in any
step that may be requisite for the
collection of the debt ; Ramsey's
Appeal, 2 Watts, 228, 232 ; Briggs
V. The Blanters' Bank, 1 Freeman,
Ch. 574 ; Westervelt v. Mass, 2
Sandford, Ch. 98; Brinkerhoff y.
Marvin, 5 Johnson, Ch. 328 ;
Woolcocks Y. Hart, 1 Paige, 185 ;
Evertson v. Booth, 19 Johnson,
486, 493 ; Ilerriman v. Skillman,
33 Barb. 378. He will not, there-
fore, ordinarily be confined to the
fund which is exclusively within
his reach, nor shut out from that
which is subject to the lien of the
puisne incumbrance ; Herriman
V. Skillman, Neff's Appeal, 9 W.
& S. 36. But his election to take
the latter fund in execution, will
render it incumbent on him to
place so much of the former as he
does not need, at the disposal of
the party whom he has deprived
of the means of payment ; Herri-
man V. Skillman.

Such a case may arise where two
or more tracts of land are subject
to the lien of a judgment, and one

260

MARSHALLING ASSETS.

of them is subsequently mortgaged
to a third person.

Under these circumstances the
judgment creditor is within the
maxim sic utere tuo ut alienum
non Isedas ; Kyner v. Kyner, 6
Watts, 224 ; Hamsey's Appeal, 2
Id. 228; The Silver Lake Bank
v. North, 4 Johnson, Ch. 370 ; see
Morris^ Appeal, 6 P. F. Smith, 76 ;
Bantings' Case, 10 Watts, 303,
305. He may resort at pleasure to
either tract, or proceed simultane-
ously against both ; Chapman v.
Hamilton, 19 Alabama, 12 ; Logan
V. Anderson, 18 B. Monroe, 118.
But his right in this regard is sub-
ject to two restrictions ; one that he
shall not knowingly do any act that
will enable the debtor to place his
property beyond the reach of the
mortgagee ; the other, that on being
paid in full, he will assign the
judgment to the mortgagee, or
allow it to be used for his benefit.
In like manner, a mortgagee
will not be allowed arbitrarily to
disappoint a judgment creditor.
The doctrine was defined by
Chancellor Kent, with his accus-
tomed clearness, in Cheesebrough
V. Millard, 1 John. Ch. 409.
There Smith mortgaged a lot in
Balston as security for a debt, and
afterwards gave another mortgage
on a lot in Waterford for the same
debt. He sold the Balston lot, and
a judgment was subsequently ob-
tained against him which became a
lien on the property in Waterford.
The mortgagee entered into an
arrangement with the purchaser
of the lot in Balston, by which it
was exonerated from the lien of
the first mortgage. It was con-

tended that he had thereby dis-
abled himself from enforcing the
second mortgage to the detriment
of the judgment creditor. The
principle was fully recognized by
the Chancellor, although he held
that it did not apply to the case in
hand, because there was no evi-
dence that the mortgagee was
aware of the existence of the judg-
ment.

" I admit," said he, " as a prin-
ciple of equity, that if a creditor
has a lien on two diflferent parcels
of land, and another creditor has
a lien of a younger date on one of
these parcels only, and the prior
creditor elects to take his whole
demand out of the land on which
the junior creditor has a lien, the
latter will be entitled either to
have the prior creditor thrown
upon the other fund, or to have
the prior lien assigned to him, and
to receive all the aid it can afibrd
him. This is a rule founded in
natural justice, and I believe it is
recognized in every cultivated
system of jurisprudence. In the
English law, it is an ordinary case,
that if a party has two funds, he
shall not, by his election, disap-
point another who has one fund
only, but the latter shall stand in
the place of the former, or compel
the former to resort to that fund
which can be afi'ected by him only ;
Sagitary v. Hyde, 1 Vern. 455 ;
Mills V. Eden^ 10 Mod. 488 ; At-
torney-General V. Tyndall, Amh.
614 ; Aldrich v. Cooper, 8 Ves.
388, 891, 395 ; Trimmer v. Baine,
9 Id. 209. The party liable to be
affected by this election, is usu-
ally protected by means of substi-

ALDRICH V. COOPER,

261

tution. Thus, for instance, if a
creditor to a bond exacts his whole
demand of one of the sureties,
that surety is entitled to be sub-
stituted in his place, and to a ces-
sion of his rights and securities, as
if he was a purchaser, either against
the principal debtor or the co-sure-
ties. The doctrine of substitution,
which is familiar to the civil law,
(Dig. 46, 1, IT and 36 ; Volt. h. t.
s. 27, 29, 30), and the law of those
countries in which that system
essentiilly prevails. (Pothier's
Traite des Oblig. n. 215, 280, 427,
519, 520, 522 ; Kaim's Equity, vol.
1, 122, 125 ; Hub. Prselec. Inst. lib.
3 tit. 21, n. 8), is equally well
known in the English chancery.
In the case Ex parte Crisp, 1 Atk.
133, Lord Hardwicke said, that
where the surety paid off a debt,
he was entitled to have from the
creditor an assignment of the
security, to enable him to obtain
satisfaction for what he had paid
beyond his proportion ; and in
Morgan v. Seymour, 1 Ch. Rep.
64, the court decreed, that the
creditor should assign over his
bond to the two sureties, to enable
them to help themselves against
the principal debtor. To apply,
then, the general principle to the
present case, if the first mortgage
had not been discharged, and the
mortgagee had chosen to enforce
the payment of the whole first in-
stalment from the lands covered
by the second mortgage, to the loss,
perhaps, of the lien of the judg-
ment creditor by the consump-
tion of thfe subject, that creditor,
and probably the purcliaser under
the judgment, would have been

entitled, either to have turned
him from the path he had taken,
or to the aid of the first
mortgage, to recover a propor-
tional indemnity' from the other
lands covered by that mortgage.
But there is no evidence, or even
ground for presumption, that
either Marvin or Millard, the own-
ers of the mortgages, knew of the
existence of the judgment when
the arrangement was made and
carried into effect. They were not
bound to search for the judgment,
and the record was no constructive
notice of them ; and as this rule
of substitution rests on the basis
of mere equity and benevolence,
the ci'editor who has thus disabled
himself from making it, is not
to be injured thereby', provided
he acted without knowledge of
the others' rights, and with good
faith and just intention, which is
all that .equity in such a case
requires. (Pothier's Traite des
Olilig., No. 520.) "The other
debtors and sureties," to adopt the
observations of Pothier, " might,
as well as the creditor, have taken
care of the right of hypothecation,
which he has lost; they might
summon him to interrupt, at their
risk, the third purchasers, or to
oppose the decree. It is only in
the case where they have put
the creditor in default, that they
may complain that he has lost his
hypothecation."

It is well settled, in accord-
ance with these principles, that
a lien creditor cannot capriciously
defeat subsequent creditors whose
liens are more restricted than his
own; and that they will, on the

262

MARSHALLING ASSETS.

contrary, be protected by confin-
ing him before satisfiietion, to
the fund which is beyond their
reach ; Warren v. Warren, 30 Ver-
mont, 533 ; Ooss v. Lester, 1 Wis-
consin, 43 ; The United States Ins.
Go. V. Shriver, 3 Maryland, Vh.
82 ; or by substituting them in his
place after he has been paid in full ;
Besley v. Lawrence, 11 Paige, 581 ;
Hunt V. Townsend, i Sandford, Ch.
570 ; Hawley v. Mancius, t John-
son, Ch. 114 ; Euertson v. Booth,
19 Johnson, 486 ; The N. Y. Ferry
Co. V. The N. J. Co., 1 Hopkins,
460 ; Besley v. Lawrence, 11 Paige,
511; Hunt v. Townsend, 4 Sand-
ford, Ch. 570 ; Averill v. Loucks,
6 Barb. 410 ; Ingalls v. Morgan, 10
New York, 178. The same doctrine
prevails in Pennsylvania, and gen-
erally throughout the United
States, although it is ordinarily ad-
ministered through a decree of sub-
rogation, unless both funds are so
directi}' before the court or under
its control, that an injunction will
not result in delay, or inconveni-
ence the creditor. See The United
States Ins. Go. v. Shriver, 3
Maryland, Ch. 382 ; Nelson v.
Dunn, 15 Alabama, 517 Bam-
sey^s Appeal, 2 Watts, 228 ; Hast-
ing's case, 10 Id. 303 ; Bruner^s
Appeal, 7 W. & S. 269) ; Fassett
V. Traber, 20 Ohio, 540 ; Hanne-
gan v. Hannah, 1 Blackford, 353 ;
House V. Thompson, 3 Head. 512;
Fallen v. The Agricultural Bank,
1 Freeman, Ch. 419 ; Briggs v.
The Planters' Bank, lb. 575 ;
Williams v. Washington, 1 Dev.
Ch. 137 ; Ooss v. Lester, 1 Wis-
consin, 43; Kendall v. The New
England Co., 13 Conn. 394 ;

Thompson v. Murray, 2 Hill, Ch.
10.

It results from the same rule,
that where a judgment wliich has
been entered in two counties, is
enforced to the prejudice of a sub-
sequent crpditor, who has a lien in
only one, the latter may be subro-
gated to the paramount judgment
in the other county. M'Devitt's
Appeal, 20 P. F. Smith. 373. See
M'Ginnis' Appeal, 4 Harris, 445.
So a creditor may, where the exi-
gency of the case require! it, be
compelled to proceed in the first in-
stance on a mortgage without the
State, in order to leave land within
the State open for the payment of
junior liens ; The Y. & J. Steam-
boat Go. V. The Jersey Co., 1 Hop-
kins, 461. But as it regards prop-
erty beyond the State, the relief
will generally not go beyond a
decree of subrogation, on the pay-
ment of the debt ; Woolcocks v.
Hart, 1 Paige, 185. See Hays v.
Ward, 4 Johnson, Ch. 123.

Tiie nature of the property
which constitutes the double fund,
does not affect the operation of the
principle ; and it applies wherever
a paramount creditor holds col-
lateral securitjr, or can resort col-
laterally to other real or personal
estate for the satisfaction of the
debt; Depeyster v. Hildreth, 2
Barb. Ch. 109 ; Goss v. Lester, 1
Wisconsin, 43 ; Oeller v. Hoit, 7
Howard, Pr. R. 265 ; Ingalls v.
Morgan, 12 Barb. 578 ; 6 Selden,
178 ; Herbert v. The M. & L. Asso-
ciation, 2 C. E. Green, 496. In Be-
peyster v. Hildreth, a creditor had
a prior judgment lien on premises
which were mortgaged to the com-

ALDRICH V. COOPER,

263

plalnant. He subsequently levied
on the personal property of the
mortgagor, to an amount sufficient
to pay the debt ; and it was held,
that the withdrawal of the levy
gave the mortgage priority over
the judgment. In like manner,
where land, bound by the lien of a
judgment, was sold, and the notes
given for the price delivered to the
judgment creditor, with an agree-
ment that he should collect them
and apply the proceeds to the pay-
ment of the judgment debt, the
court held that he could not sur-
render the notes to the judgment
debtor, without losing the right to
proceed against the land in the
hands of the purchaser ; Ingalls
V. Morgan.

The rule is sometimes said to
rest on the natural equity and
mere benevolence, which require
every one to exercise his right in a
way not to occasion a loss to others,
which might be avoided without
inconvenience to himself; Kyner
V. Kyner, 6 Watts, 224 ; Hastings^
Case, 10 Id. 303. This view is
forcibly stated by Story, in the
following passage : " The general
principle is, that if one party
has a lien on, or interest in two
funds for a debt, and another
party has a lien on, or interest
in one only of the funds for
another debt, the latter has a right
in equity to compel the former to
resort to the other fund in the first
instance for satisfaction, if that
course is necessary for the satis-
faction of the claims of both
parties, whenever it will not trench
upon the rights or operate to the
prejudice of the party entitled to

the double fund. Thus, a mort-
gagee who has two funds, as
against the other specialty credi-
tors, who have but one fund, will,
in the case of the death of the
, mortgagor, and the administration
of his assets, be compelled to re-
sort first to the mortgage security,
and will be allowed to claim
against the common fund only
what the mortgage on a sale, con-
sented to by him, is deficient to
pay ; Greenwood v. Taylor, 1
Russ. & Mylne, 185, 187. So, if

A. has a mortgage upon two differ-
ent estates for the same debt, and

B. has a mortgage upon one only
of the estates for another debt, B.
has a right to throw A. in the first
instance for satisfaction upon the
security, which he, B., cannot
touch, at least where it will not
prejudice A.'s rights, or improp-
erly control his remedies. The
York & New Jersey Steam, dc,
Company v. The Associates of
the Jersey Company, Hopkins,
Ch. R. 460; Conrad v. Har-
rison, 3 Leigh, R. 532. The
reason is obvious, and has been al-
ready stated ; for by compelling
A., under such circumstances, to
take satisfaction out of one of the
funds, no injustice is done to
him in point of security or pay-
ment. But it is the only way by
which B. can receive payment.
And natural justice requires that
one man should not be permitted
from wantonness, caprice, or rash-
ness, to doan injury to another. In
short, we may here apply the com-
mon maxim, sic utere tuo ut
alienum non Isedas ; and still more
emphatically the Christian maxim,

264

MARSHALLING ASSETS.

" Do unto others as you would
they should do unto you ; " Story
Eq , sect. 633, c. 13.

It is said on the other hand, by
a writer of considerable authority,
that " the equity is not binding on
the paramount creditor, for no
equity can be created against him
by the fact that some one else has
taken an imperfect security. But
it is an equity against the debtor
himself, that the accidental resort
of the paramount creditor to the
doubly charged estate, and the
consequent exhaustion of that se-
curity, shall not enable him to get
back the second estate, discharged
of both debts. If, therefore, the
paramount creditor resorts to the
doubly charged estate, the puisne
creditor will be substituted to his
rights, and will be satisfied out of
the other fund to the extent to
which his own may be exhausted ;
and it seems that he maj', on pro-
posing just terms, require the
paramount creditor to proceed
against the estate on which he has
himself no claim. His right, how-
ever, to do this is not an independ-
ent equity against the creditor,
but a mere incident of his equity
against their common debtor ; and,
therefore, if the paramount claim
is not chargeable on two funds,
both belonging to the same debtor,
but is merely due from two per-
sons, one of whom is also indebted
to separate creditors, there Is no
equity to compel a resort to one
rather than to another, or to alter
the consequences of the election
which may be made ; Greenwood
V. Taylor, 1 R. & M. 185 ; llason
V. Bogg, M. & C. 443 ; Ex parte

Kendall, 17 Ves. 514; Hx parte
Field, 3 M. D. & D. 95."

In Miller v. Jacobs, 3 Watts,
477, it was held to follow from
these premises, that a creditor who
has a lien on two funds, may throw
the whole burden on one of them,
to the exclusion of a junior encum-
brancer, if the other fund is subject
to encumbrances, which though
posterior in date, are sufficient
to absorb the whole, because the
effect of such a course is merely
to postpone one creditor to
another, and it does not enable
the debtor to get back the estate
discharged of the lien.

The maxim sic utere tuo ut alien-
urn non Isedas, is of general but
not of universal application. See
Broom's Legal Maxims, 161 ; Ren-
nells V. Bullen, 2 New Hamp-
shire, 532, 535. A maa cannot ac-
quire a right against another by
his own act, nor restrict that other
in the exercise of an antecedent
right. " To constitute a violation
of the maxim, there must be

injuria,

as well as damnum.

There are many cases in which a
man may lawfully use his own
property so as to cause damage to
his neighbor, if it be not damnum
injuri osum ;" Acton v. Blundell,
12M. & W. 324, 341. " It may be
true, said Lord Tenterden, in Wyatt
Y.Harrison, 3 B. & Ad. 871," that
if my land adjoins that of another,
and I have not by building in-
creased the weight upon my soil,
and my neighbor digs in his land
so as to occasion mine to fall in,
he maj' be liable to an action. But
if I have laid an additional weight
upon my land, it does not follow

ALDRICH V. COOPKR.

265

that he is to be deprived of the
right of digging his own ground,
because mine will then become in-
capable of supporting the artificial
weight which I have laid upon it."
Or as the rule was stated bj' Baron
Alderson, in Partridge v. Scott, 3
M. & W. 220, " one has no right to
load his own soil so as to make it
require the support of that of his
neighbor, unless he has some
grant to that effect." Such, also,
are the authorities in the United
States ; Huston v. Hancock, 12
Mass. 220 ; P anion v. Holland, IT
Johnson, 92; Callender v. Marsh,
1 Pick. 418, 434. A mortgage on
land which is already incumbered,
may be likened to the additional
load spoken of by Alderson, and
the comparison is so far just, that
the mortgagee cannot require the
paramount encumbrancer to re-
frain from enforcing his legal right,
because the effect will be to sacri-
fice a security that might with
time and nursing be adequate for
the payment of both debts. But a
right of action is not in all respects
analogous to a right in possession,
because the one requires the aid of
the law, while the other is already
perfect. The right of an encum-
brancer is not one of absolute
ownership ; it is rather, as it re-
gards subsequent liens, like that
of a proprietor to take so much of
the water of a stream that flows
through his land, as may be re-
quisite for his family and cattle, or
the propulsion of a mill, suffering
the residue to return to its natural
channel. See Wadsworth v. Tillot-
son, 15 Conn. 366 ; POirker v. Gris-
ivold, 11 Id. 2S8. So a mortgagee

or judgment creditor is entitled to
withdraw so much from the fund
as maj' be requisite to satisfy the
debtj but when that end is attained
he has no further right. If he at-
tempts to use his liold on the land
as a means of obtaining a collateral
or indirect advantage, he may be
restrained by a chancellor, as in
the common case of a forfeiture or
penalty for non-paj'ment. We
may, therefore, infer that the right
to marshal assets or securities in
aid of a junior encumbrancer is
not exclusively against the debtor.
If it went no further, a paramount
mortgagee of two estates, might
stand neutral between a second
mortgagee and a subsequent judg-
ment creditor of the mortgagor.
It is also an eqnity against the
creditor, that he shall take no
step whereby the debtor's obliga-
tion to his creditors may be im-
paired, or the lien of a junior en-
cumbrancer arbitrarily postponed
to one of later date ; Hasting'' s Case,
10 Watts, 303 ; M'Devitt's Appeal,
20 P. F. Smith, 3Y3. This view is
measurably sustained by the opin-
ion of Strong, J., in The Delaware
and Hudson Canal Company's
Appeal, 2 Wright, 512, 516.
" It surely can no longer be
doubted, that where a creditor has
a lien upon two funds belonging to
one creditor, and another debtor
has a subsequent lien upon only
one of them, the former is under
obligation to exhaust first the fund
upon which he has an exclusive
lien before he can resort to the
other. This obligation is founded
upon the plainest principles of jus-
tice and equity. It is nothing

266

MAKSHALLINa ASSETS.

more than the obvious duty so to
use one's own as not to injure
another. It is an equally plain
principle of equity, that if the para-
mount, creditor resorts to the
doubly charged fund or property,
the junior creditor will be substitu-
ted to his rights, and will be satis-
fled out of the other fund to the ex-
tent to which his own might be ex-
hausted. This is an equity against
the debtor himself, that the acci-
dental resort of the paramount
creditor to the fund doubly encum-
bered, shall not enable him to get
back the other fund discharged of
both debts. And being an equity
against the debtor, it is of course
equally such against his subsequent
judgment creditors, who have no
better rights than their debtor had
at the time their j udgments were
entered. These principles are too
familiar to justify any citation of
authorities. Applying them to the
case in hand, it is not doubted that
the appellants are entitled to the
subrogation for which they ask.
When their mortgage was taken,
they acquired against Thomas, the
mortgagor, the right to have his
Other lands, not included in the
mortgage, applied first to the pay-
ment of the four earlier judgments
which were liens upon them. This
right was not in the power of the
mortgagor to defeat, by confessing
judgments to other creditors, or by
contracting subsequent debts, and
when a portion of the mortgaged
premises were sold, and the pro-
ceeds applied to the four para-
mount judgments, equity ceded
those j udgments to the mortgagees.
True, they were discharged at law,

but payment does not of course
discharge a judgment in equity.
Indeed, there cannot be subroga-
tion until the creditor is fully
paid ; for a right to subrogation is
rather against the debtor than the
creditor. The latter cannot be
compelled to cede his claim while
anything remains due upon it."

Where a lien creditor is entitled
to marshal the assets as against the
debtor, he will have the same right
as against another creditor whose
lien is subsequent in date to his
own ; Herbert v. TAe M. & L. As-
sociation, 2 C. E. Green, 296 ;
Samsey's Appeal, 2 Watts, 228,
232. It is a general if not an in-
variable rule, that a judgment credi-
tor is subject to every equity that
could have been enforced against
the defendant in the judgment;
The N. Y. Life & Trust Go, v.
Vanderbilt, 12 Abbott, Pr. R. 458.
The equity has its root in the ob-
ligation of the debtor, but is also
an equitj' among the creditors that
each shall, when it can be done
without loss or inconvenience, so
use his right that all may, as
far as the circumstances admit,
be satisfied in the order in
which their liens severally accrued.

A. has a paramount lien on two
tracts of land, B. a lien on one of
them, and C. a subsequent lien on
both. If A. exhausts the tract
which is the subject of B.'s lien,

B. will be subrogated to A.'s lien
on the other tract, although C. is
thereby excluded from the fund ;

The Delaware and Hudson Canal
Company^s Appeal, 2 Wright,
512; The New York LifeS Trust
Ins. Co. V. Vanderbilt, 12 Abbott,

ALDRICH V. COOPER.

267

P. & R. 458. B. and C. are as
creditors on the same footing, but
,is B.'s equity becomes fixed before
C. acquires a lien, he is within the
rule that as between equal rights
that which is first in point of
time shall prevail. See Ingallit v.
Morgan, 6 Selden, 178 ; Dp, Pey-
ston V. Hildreth, 2 Barb. Ch. 109.
Accordingly, where there are a
paramount judgment creditor hav-
ing a lien on two funds, a mortga-
gee having a subsequent lien on
oneof them, and a junior judgment
creditor, whose lien took effect on
both after the execution of the
mortgage, the paramount judg-
ment must be paid out of the fund
which is not subject to the mort-
gage, the mortgagee is entitled to
the surplus of the other fund, and
the junior judgment creditor only
to what remains after the prior
judgment creditor and the mort-
gagee have both been satisfied ;
The N. Y. Life & Trust Go. v.
Vanderbilt, 12 Abbott, P. & R.
458 ; Herbert v. The M. & L. Asso-
ciation, 2 C. B. Grreen, 495.

In Bamsey's Appeal, 2 Watts,
228, land which had been mort-
gaged was sold under a paramount
judgment, which bound other land.
The mortgagor died, and the claim
of the mortgagee to be subrogated
to the remedy of the administrator
on the judgment, was resisted by
the general creditors of the intes-
tate. Gibson, C. J. said, " put it
that the mortgagor had procured
the paramount judgment creditor
so to apply his lien as to exclude
the mortgagee from the benefit of
his security, would not common
honesty have called on the court to

rescue their process from such
abuse ?" " The equity of the mort-
gagee is not less strong because
the mortgagor acted of his own
motion, and as it was valid
against the mortgagor, so it is
equally valid against those who
have succeeded to his rights under
the operation of the intestate law."

It is immaterial as regards the
application of this principle, when
the paramount lien creditor ob-
tains the right of recourse to the
fund which is beyond the reach of
the second lien, if it be before the
third lien creditor obtains a hold
on either fund. A. has a lien on
lot No. 1., B. a subsequent lien on
the same lot-, and A. subsequently
obtains a lien on lot No. 2. A.
should obviously proceed in the
first instance against that lot, or
cede his lien on it to B., and as B.'s
equity is perfect in this regard,
against the debtor, so it is not less
valid against one who afterwards
obtains judgment. See De Peyster
v. Hildreth,^Ba.r\i. Ch., 109. Such
at least is the inference from
Hasting^s case, 10 Watts, 303, al-
though a different view seems to
have been taken in Miller v. Jacobs,
3 Watts, 477.

In Hasting''s case, Evans had a
judgment lien on lot 68, belonging
to the defendant in the judgment,
(Hastings,)who subsequently mort-
gaged it to Humes. Evans then
issued a scire facias, and revived
the judgment which took effect as
a lien on lot 30. Both lots were
sold under a subsequent judgment
in favor of Alexander, and the
proceeds paid into court. It was
contended on behalf of Alexander,

263

MARSHALLTXa ASSETS

that he was entitled to the proceeds
of lot 30, and that Evans should be
thrown on that portion of the fund
arising from the sale of lot 68, to the
exclusion of the mortgagee. The
court held, " that as between Humes
and Evans there could be no doubt
that Humes was entitled to any
surplus that might remain after sat-
isfying the judgment, and a Chan-
cellor would not have permitted
Evans to take the price for which
lot No. 68 had been sold, and
forego his lien on lot 30. This
equity was not affected by the cir-
cumstance that the lien against that
lot was not acquired until after the
execution of the mortgage. It de-
pended on the fact that Evans had
two funds open to him, while
Humes had only one, and should
consequently resort to that which
Humes could not reach ; and as
this equity existed on the part of
Humes, before Alexander obtained
judgment, so the entry of his judg-
ment did not impair the equity.
Qui prior est in tempore potior
est injure."

In Miller v. Jacobs, 3 Watts,
4:11, Duncan and Mahon gave a
mortgage on land in Perry county
to Stocker with a warrant of attor-
ney to confess judgment on the
bond. They subsequently mort-
gaged the same land to Clark.
Stocker entered a judgment on the
warrant in Philadelphia, which
took effect as a lien on Duncan's
real estate in that citj'. Judg-
ments wei'e then obtained in Perry
against Duncan and Mahon at the
suit of other creditors. Clark
gave notice to Stocker of his mort-
gage, and that he required him to

proceed in the first instance on the
judpiment In Philadelphia, but
Stocker disregarded this request
and released the judgment in favor
of a purchaser from Duncan. The
court below held that it was the
common case of a creditor who,
having two funds, was under an
equitable obligation to keep that
which was exclusively within his
reach intact for the benefit of
another creditor who had but one,
and to transfer it to the latter if
not needed for his own protection.
The fund was consequently awarded
to the defendant who claimed
imder Clark. The decree was re-
versed by the court above. Gib-
son, C. J., said, that Clark could
not have compelled Stocker to en-
ter judgment on the bond, and
could not, therefore, complain that
the judgment was vacated. A
creditor with a right of recourse
to two funds, could not adopt a
course which would enable the
debtor to withdraw any portion of
his property from the reach of his
creditors. This was the founda-
tion of his obligation and tlie end
of it. It was not incumbent on
him to make room for the admission
of one creditor by the exclusion
of another who had an equal right.
In that predicament it was at
his option to stand still. Between
successive Hen creditors on distinct
parts of the general fund, whose
equities are balanced, the legal
course of execution is not to be
disturbed, and a chancellor suffers
the paramount creditor to take
satisfaction m the way most con-
ducive to his convenience, or the
gratification of his caprice. Such

ALDRICH V. COOPER.

269

■was the case before the court.
Clark had no equity which could
not equally be urged by the subse-
quent creditors. Thej' were alike
claimants on separate parts of a
general fund, bound by a para-
mount lien. It was said that his
lien bound the estate in Perry
county before their liens attached
in Philadelphia ; but his lien in
Perry county had nothing to do
with an estate which it did not
bind. Had Stocker's bond been
entered up when Clark took his
mortgage, an equity might have
grown out of that circumstance,
dating from the period of the
transaction, and not liable to be
disturbed by the introduction of
fresli parties. It might then
have been contended that Clark
advanced his money on the faith
that Stocker would proceed on
the judgment, or would, on being
paid in full, transfer the judg-
ment to him. But the judgment
was not entered on the warrant
when Clark made the loan, nor
would a chancellor have compelled
Stocker to enter it. The subse-
quent entry of it was therefore a
fortuitous circumstance, on which
Clark had no right to calculate.
A creditor who had obtained a
lien on more parcels than were re-
quisite for the satisfaction of the
debt, could not so manage the ap-
plication of it as to secure the ex-
cess to the debtor ; but there was
nothing to preclude him from with-
drawing the lien from one of the
parcels for the benefit of a credi-
tor, although to the exclusion of
another whose lien was prior in
date.

It is not easy to reconcile this
decision with the principle laid
down in Jfasting's Case. If that
case establishes anything, it is the
equity of a lien creditor, to require
one who has a paramount lien and
also a right of recourse to another
fund, to exhaust the latter fund in
the first instance, or use it for his
benefit. This equity does not de-
pend on the period when the right
of recourse to the other fund is
acquired. It arose in Hasting's
case from the revival of a judg-
ment subsequent to the execution
of the mortgage, and which,
therefore, could not have been
contemplated by the mortgagee.
Nor does it, as Chief Justice Gibson
seems to have supposed, result ex-
clusively from the obligation of the
paramount lien creditor not to
cover the property of the debtor
from his other creditors. It has
another root ; that which of several
claimants on a fund shall prevail,
ought not to depend on the ca-
price of one of them, but on a set-
tled rule. If a mortgagee who ac-
quires a judgment lien on all the
real estate of the mortgagor, after
the execution of a second mort-
gage, can, by the mere exercise of
his volition, postpone the second
mortgagee to a junior incumbran-
cer, or vice versa, there is no rea-
son why he should not turn the
power to account by exercising
it in favor of the highest bidder.
Nor can it be admitted that a sec-
ond mortgagee has no means of
compelling the entry of judgment
on a bond and warrant of attorney
accompanying a first mortgage.
He is clearly entitled to stand in

270

MARSHALLING ASSETS.

the place of the first mortgagee on
paying the amount, and this im-
plies a right of subrogation to the
securities held for the debt. See
Giller v. Hoyt, *l Howard, Pr.
B. 265.

Which of two creditors who
have obtained judgments in differ-
ent counties, shall be subrogated
to a prior incumbrance, which is
a lien in both, depends in like
manner on the dates of the judg-
ments ; their equities being equal in
all other particulars, and neither
having any superiority of right,
except that arising from priority
in time; M'Gi7inis' Appeal, 4
Harris, 445. In M'Ginnis' Ap- _
peal, Gassier obtained judgment
in Franklin county against Her-
chelroth, on the 2d of April, 1849,
and on the 5th of that month judg-
ment was rendered against Her-
chelroth in Cumberland county in
favor of M'Ginnis. M'Lanahan
had a prior judgment against Her-
chelroth in both counties. Herchel-
roth's land in Cumberland was sold
by the sheriff, and the proceeds paid
to M'Lanahan, and M'Ginnis
thereupon claimed subrogation to
M'Lanahan's judgment, in Cum-
berland county, and that he,
rather than Cassler, should receive
the fund arising from a sheriff's
sale of Herchelroth's land there.
This application was refused, on
the ground that as Cassler's judg-
ment was prior in time, he had the
better right. It was decided con-
versely in M'Devitt's Appeal, 20'
P. F. Smith, 313, that where judg-
ment was rendered in Philadel-
phia, for A., in 1868, and in favor
of B., in Chester, in the following

3'ear, A. and not B. was entitled to
subrogation to an older judgment
which bound the land of the
debtor in both coun,ties.

The equity of a judgment credi-
tor to marshal the assets as a means
of obtaining payment out of a fund
that is not subject to the lien of
the judgment, will not be enforced
against a bona fide purchaser;
Bruner's Appeal, Y W. & S. 259 ;
M'Cormick's Appeal, *! P. F.
Smith, 54 ; see Withers v. Carter,
4 Grattan, 407 ; Bruner^s Appeal,
T W. & S. 269 ; Averall v. Wade,
2 Lloyd & Goold, 252 ; EherhardVs
Appeal, 8 W. & S. 228. Such a
case is prima facie within the rule
that assets will not be marshalled
against one who is not indebted to
the creditor who asks for the re-
lief; EberhardVs Appeal; Dunn
V. Olney ; Lloyd v. Oalbraith, 8
Casey, 103 ; Wise\. Sheppard, 13
Illinois, 41. If one of two tracts
of land which are subject to a
judgment lien, be sold by the de-
fendant in the judgment, a subse-
quent judgment creditor is not en-
titled to subrogation to the prior
lien, because such a decree would
conflict with the equity of the
purchaser. Where land, subject
to an incumbrance, which is also
a charge on other land belong-
ing to the vendor, is sold with
an express or implied agreement
that the title shall be clear, the ven-
dee is not liable to contribution. It
is the duty of a vendor who has
been paid in full, to discharge an
incumbrance on the land, and if
the lien extends to other land, that,
and not the land conveyed, is the
primary fund for the payment of

ALDEICH V. COOPER.

271

the debt. See Lucas v. Wolbert,
10 Barr, 73 ; Rawle on Covenaifts
for Title, 632, 4 ed. In Ziegler v.
Long, 2 Watts, 205, Hoffman had
a judgment lien on several lots be-
longing to Long, who sold one of
them to the plaintiff Ziegler.
Judgments were subsequently ob-
tained against Long at the suit of
other creditors. Ziegler paid Hoff-
man's judgment, and it was as-
signed to him.- The remaining
lots were then sold under an exe-
cution against Long, and it was
held that Ziegler had the first
claim on the fund as the assignee
of Hoffman's judgment. Sergeant,
J., said, that a chancellor would
have " compelled Hoffman to take
his judgment out of Long's other
lands in exoneration of the land
sold to Ziegler, or, to assign the
judgment to Ziegler on receiving
the amount." " If such was the rule
as it regarded Long, such must
also be the rule with regard to one
who obtained judgment against
him subsequently to the sale." It
is established in conformity with
this decision, thatas one who buys
land which is subject to the lien of
an incumbrance, which is also alien
on other land belonging to the ven-
dor, may require the creditor to
proceed in the first instance against
the latter fund, so he will have the
Same right as it regards a credi-
tor who obtains judgment subse-
quent to tlie sale; Bruner^s Ap-
peal, 7 W. & S. 269 ; EberhardVs
Appeal, 8 Id. 327 ; Dunn v. Olney,
2 Harris, 219 ; Wise v. Harris, 13
Illinois, 41, 48.

It seems that a paramount judg-
ment will not be marshalled as

against a grant with warranty to a
volunteer, in order to leave the
real estate of the grantor free for
the discharge of a judgment
which has been entered subse-
quently to the grant ; Thomp-
son V. Murray, 2 Hill Ch. 204, 213 ;
Cumming t. Gumming, 3 Kelly,
460 ; because such a gift is valid
against the donor, and therefore
equally valid against one claiming
under him as a creditor, unless it
can be impeached for fraud.

In Beynolds v. Tooker, 18 Wend.
591, the Duchess County Bank
obtained judgment against Tooker
and Hait, and levied on certain
chattels belonging to them, and
on a ship which Xhej had built for
a whaling company. Tooker and
Hait had been paid for the ship,
but it was still undelivered in their
yard. An execution was issued
and placed in the sheriff's hands,
by another creditor with instruc-
tions to proceed. The bank then
assigned its judgment to the whal-
ing company, who withdrew the
levy on the ship ; and the rest of
the property was sold under both
writs. It was contended on be-
half of the plaintiff in the second
writ, that as the ship would have
sold for enough to satisfy both j udg-
ments, if things had been suffered
to take their legal course, he was
entitled to the money in the sher-
iff's hands. Bronson, Justice, said,
that this argument would have
been valid if the judgment debtors
had been the real owners of the
vessel. But inasmuch as they
had been paid in full, it equitably
belonged to the whaling company,
who had the first and best right to

272

MARSHALLING ASSETS.

insist that the bank should resort
to the other property before
touching the ship. It followed,
that the fund must be paid to
them, and not to the second exe-
cution creditor.

The question whether an incum-
brance is to be borne by the ven-
dor or purchaser, nevertheless,
depends on the intention of the
parties, as manifested by the con-
tract of sale. Where the convey-
ance is in terms subject to the
lien, the obligation necessarily de-
volves on the purchaser. In the
absence of such proof, it may be
necessary to have recourse to ex-
trinsic evidence. A vendor who
receives the full value of the
premises, obviously ought to clear
them of encumbrances. But it is
not less obvious that where an al-
lowance is made for an incum-
brance in fixing" the price, or
■where the purchaser retains the
amount under an express or im-
plied agreement that it shall be
applied to the discharge of the
lien, the purchaser is personally
liable, and not the vendor, and
a court of equity may compel the
fulfilment of the obligation,
by substituting the vendor in
the place of the incumbrancer;
In re iVGill, 6 Barr, 504; 3Ior-
ris V. Oakford, 9 Id. 498 ; Ealsey
V. Reed, 9 Paige, 546 ; Marsh v.
Pike, 10 Id. 595; Harris v.
Crawford, 2 Denio, 594 ; Atwood
V. Vincent, 17 Conn. 575, ante.
And as he is entitled to subroga-
tion, so it may be enforced in aid
of those claiming under him as
judgment creditors ; Harris v.
Oakford, 9 Barr, 498.

It has, notwitkstanding, been
held in several Instances, that where
one of several tracts belonging to
the same person, and encumbered
by a common lien, is sold and con-
veyed bjr him, the land which he
still retains is primarily liable
although the price be not paid
in full ; EberhardPs Appeal, 8
W. & S. 327 ; Lloyd v. Gal-
hraith, 8 Casey, 303. A junior
encumbrancer will not, therefore,
agreeably to this view, be subro-
gated to the paramount lien as
against the purchaser, even to the
extent of the unpaid purchase-
monej'. In EberhardVs Appeal,
Hein had a judgment lien on three
lots of ground belonging to the
defendant in the judgment. Rice.
The latter subsequently conveyed
one of the lots to Spinner for the
consideration of four hundred dol-
lars, receiving one hundred dollars
down, and a note by which Spinner
promised to pay Hein three hun-
dred dollars on account of the lien
held by Hein. The court held that
Rice had no color of equity to re-
quire Hein to proceed in the first
instance against Spinner's lot for
any portion of his judgment; and
that a subsequent judgment credi-
tor of Rice must consequently be
postponed to Spinner's judgment
creditors. Sergeant, J., dissented;
and we may agree with the re-
mark of Mr. Justice Bell, in
Dun V. Olney, 2 Harris, 219,
223, that suflBcient weight was
not given to the purchaser's un-
dertaking to apply the unpaid
purchase-money in discharge of
the paramount incumbrance. See
Biddon v. DeWitt, 7 Wright, 326.

ALDRICH V. COOPER.

273

As BETWEEN CREDITORS OF
DIFFERENT PERSONS.

The rule that he who has a right
of recourse to two funds shall not
SO exercise it as unnecessarily to
disappoint him who has only one,
does not apply as between credi-
tors of different persons. It is
the obligation of the debtor which
renders it incumbent on the credi-
tor not to adopt a course whereby
that obligation may be impaired.
There is no justice in charging
one who is not indebted to me, in
order that I may be paid. If I
have a joint judgment against A.
and B., and Jones has a several
judgment against B., Jones can-
not require me to proceed in the
first instance against A., nor can I
be required to cede my judgment
to Jones on receiving the amount.
Such, at least, is the rule, unless
there is some reason why the
judgment should be paid by A.
rather than B. ^

It was defined by Lord Eldon,
in Ex parte Kendall, 17 Yesey,
520, in the following terms : " We
have gone this length : if A. has
a right to go upon two funds, and
B. upon one, of the same debtor,
and the funds are the property of
the same person, A. shall take
payment from that fund, to which
he can resort exclusively, so that
both may be paid ; but it was never
said that if I have a demand against
A. and B., a creditor of B. shall com-
pel me to seek payment from A.,
if not founded in some equity
giving B. for his own sake, as if
he was a surety, &c., a right to
compel to seek payment of A. It
must be established that it is just
VOL. II 18

and equitable that A. ought to pay
in the first instance, or there is no
equity to compel a man to go
against A., who has a resort to
both funds."

The doctrine is established on
this basis in the United States ;
Dunn V; Obiey, 2 Harris, 219, 221 ;
Lloyd V. Walbraith, 8 Casey, 103,
105, 108 ; Merhardt's Appeal, 8 W-
& S. 321, 332 ; Ayres v. Busted,
15 Conn. 504 ; Wise v. Shepherd, 13
Illinois, 41 ; Sanders v. Cook, 22
Indiana, 436 ; House v. Thompson,

3 Head. 512; Meech v. Allen, IT
New York, 300, 304 ; Dorr v. Shaw,

4 Johnson's Ch. 17. In Dorr v.
Shaw, the defendant had a joint
judgment against David Stafford
and his son, Peter Stafford, which
was a lien on seventy-two acres
belonging to the father, and thirty
acres of the son's. The plaintiff
held a younger judgment lien on
the father's land. He subsequently
bought the father's land, and the
defendant became the purchaser
of that which was owned by the
son. A bill was then filed, asking
that the defendant should be en-
joined from levying the seventj'-
two acre tract, or be compelled to
assign his judgment to the plain-
tiff on receiving the debt, interest,
and costs. Chancellor Kent said,
that " if both judgments had been
against David Stafford only, the
rule that the prior creditor must
be thrown first on the fund not
reached by the second judgment,
might have applied. But here we
have no means of knowing whether
he or his son ought to pay the
debt ; and it might be very unjust,
as between those two original

274

MARSHALLING ASSETS,

debtors, if the court should inter-
fere, and charge the debt upon
one of them, instead of the other.
They are not before the court, and
we have nothing in the case to
guide us in making a selection be-
tween them. The consequence is,
that we cannot interfere."

It results from what is here
said, that a chancellor will not
marshal the assets as between
creditors of different persons, un-
less it appears affirmatively that
the debtor whose estate is sought
to be charged, is primarily liable.
Hence, a several creditor of a
partner cannot compel a partner-
ship creditor to proceed in the
first instance, against the assets
of another member of the firm, un-
less the latter would, on a settle-
ment of the partnership accounts,
be primarily liable as between
himself and his co-partners, for
the joint debts ; Sterling v. Bright-
bill, 5 Watts, 229. In Sterling v.
Brighlbill, the Harrisburg Bank
had a judgment against Eitchey &
Elder, for a partnership debt, and
Brightbill who had a several
judgment against Eitchey, asked
for subrogation to the bank's judg-
ments as against Elder's estate.
There was no evidence as to the
state of the partnership accounts
between Elder and Eitchey. Ken-
nedy, Justice, said that Bright-
bill's lien was for the proper debt
of Eitchey alone, and great injus-
tice might be done to Elder by
making his estate liable for the
payment of Eitchey's debt, with-
out ascertaining whether he is not
Eitchey's creditor to an equal or
greater amount than one-half of

the judgment to which Brightbill
asked for subrogation. The court
below seemed to have considered
that in the absence of proof it
should be intended that each part-
ner was under an equal obligation
to contribute to the debts of the
firm. But this was substituting
conjecture for the certainty which
is essential to the administration
of justice. It would be contrary
to the dicta of Lord Eldon in Ex
parte Kendall, that before com-
pelling a creditor who had a right
of recourse against the estate of
two debtors to proceed against one
of them, it must be established that
the latter ought to pay in the first
instance.

In like manner, a joint creditor
will not be compelled to proceed
against the administrator of a de-
ceased partner, in order to leave
the assets of a surviving partner
free for the discharge of his indi-
vidual liabilities, unless it is shown
that a decree would be equitable
as between the partners ; Meeoh v.
Allen, It New York, 300. In
Meech v. Allen, the firm of Taylor
& Pratt was dissolved by Pratt's
death, and the defendant subse-
quently obtained judgment against
Taylor as the surviving partner
for a partnership debt, which
took effect as a lien on Taylor's
land in the city of New York.
A judgment was then recovered by
the complainant against Taj'lorfor
a several debt, and became a lien
on the same land. The complain-
ant filed a bill alleging the in-
adequacy of the land to pay both
judgments, and that Pratt's estate
was adequate to satisfy the defend-

ALDRICH V. COOPER.

275

ant's judgment, and asking that
the defendant should be compelled
to have recourse to it in the first
instance, or that the complainant
should I)e subrogated to the lien of
the defendant's judgment against
Taylor's real estate. Selden, J.,
said, that the only difference in
principle between the case in hand
and that of Dorr v. Shaw, was
that there it did not appear that
the joint debtors were partners.
This was a difference which oper-
ated against the prayer of the bill.
Where two individuals, not part-
ners, are jointly indebted, there
may be reason for a presumption
that each owes one-half of the
debt, and that there is an equity
in favor of an individual creditor
of one of them, to have so much
of the joint debt paid by the co-
debtor. No such presumption can
be indulged with regard to part-
ners, and the separate creditor
must wait until the partnership ac-
counts are settled before he can
claim anything from the partner-
ship property. If the bill had
averred that there was sufficient
partnership property upon which
the defendant's judgment was a
lien, the complainant might possi-
bly be entitled to some relief. But
the averment was simply that the
estate of the deceased partner was
adequate to satisfy the judgment.

Where, nevertheless, one of two
joint debtors is equitably entitled
to require that the debt shall be
paid by the other, rather than him-
self, the equity may be enforced
for the benefit of his separate
creditors.

The principle is of obvious ap-

plication as between a joint
judgment against a principal and
surety, and a several judgment
against the surety. The surety
has a clear equity to be subrogated
to the judgment against the prin-
cipal, and it is a general rule that
every right in the nature of prop-
erty that can be enforced by a
debtor, shall be made available for
the payment of his debts. The
ends of justice are, therefore, at-
tained circuitously,by subrogating
the surety to the judgment against
the principal, and then putting the
surety's creditors in his place ;
King v. M' Vickar, 3 Sandford,
Ch. 192; Wise v. Shepherd, 13
Illinois, 41, 47 ; ante, 144.

" Subrogation," said Strong, J.,
in Lloyd v. Galbraith, 8 Casey,
103, 108, " may be admitted in
some cases, where the two funds
belong to different persons, if
the fund not taken be the one
which in equitj^ is primarily liable.
Thus, where one creditor has a
judgment against principal and
surety, and another lias a judgment
against the surety alone, if, in
such a case, the creditor of the
two collect his debt from the
suretj', the other creditor is en-
titled to the use of his judgment
against the principal ; Oearhart v.
Jordan, 1 Jones, 325. There are
other instances than the one I have
given. In them all, however, the
equity of the second creditor is
precisely that of the debtor, and is
worked out through the equity of
the debtor ; JEx parte Kendall."

The question arose in Neff v.
Miller, 8 Barr, 341, out of an ap-
plication by a judgment creditor

276

MAKSHALLING ASSETS.

of a suretjr, to be substituted to a
judgment against the principal,
which had been paid out of the
surety's assets. It was objected,
that the rule under ■which a chan-
cellor marshals assets, does not
apply between creditors of differ-
ent persons. But the court held,
that the foundation of the argu-
ment fails where the relation be-
tween the debtors is such as to
render one primarily liable. " The
peculiarity of the question before
us," said Bell, J., " is, that one
creditor, having a joint and several
incumbrance against the estates of
two distinct debtors, claimed and
received the amount of that incum-
brance from the separate estate of
one of the debtors, and thus de-
feated the claim of a lien creditor
of the latter. It is then the case of
two funds belonging to different
debtors, and not an instance of a
double fund belonging to a com-
mon debtor. Under such circunr-
stances, a court of equity will not,
in general, compel the joint credi-
tor to resort to one of his debtors
for payment, so as to leave the es-
tate of the other debtor for the
payment of his separate and sev-
eral debt, for, as between the two
debtors, this might be inequitable ;
and the equity subsisting between
them ought not to be sacrificed
merely to promote the interest of
the separate creditor. Nor will
chancery, for the same reason, sub-
stitute the several to the place of
the joint creditor, who has com-
pelled payment from the estate of
the debtor of the former. But
where the joint debt ought to be
IJaid by one of the debtors, a court

of equity will so marshal the securi-
ties as to compel the joint credi-
tors to have recourse to that
debtor, so as to leave the estate
of the other open to the claims of
his individual creditors ; or, if the
joint creditor has already appro-
priated the latter fund, it will per-
mit the several creditors to come
in pro tanto, by way of subroga-
tion, upon the fund which ought
to have paid the joint debt ; 1
Story, Eq. sec. 642, 643 ; per Lord
Eldon, Hx parte Kendall, 17
Vesey, 521 ; Sterling v. Brightbill,
5 W. 229. Thus, if A. have a
judgment, which is a lien on the
lands of B. and C, and D. own a
younger judgment, which is a lien
on the lands of C. only, and the
joint judgment be levied on, and
paid out of the estate of C, to the
exclusion of the younger judg-
ment, D. will not be subrogated to
the rights of A., to enable him to
obtain from the estate of B. pay-
ment of his several judgment ; for

B. was not the debtor of D., and
for aught that appears, C. may he
indebted to B. to the full amount
of A.'s judgment. But if B. and

C. were partners, and gave the first
judgment on the partnership ac-
count ; and on a settlement of ac-
counts between them, it appears
that B. was indebted to C. to the
amount of the joint judgment, the
judgment creditor of C. would be
substituted as against the estate of
B., pro tanto ; Dorr v. Shaw, 4
Johnson, Ch. Rep. IT. It would
be the same if the judgment was
recovered by A. for B.'s proper
debt, C. being merely surety ; for
in these cases, B. ought to have

ALDRICH V. COOPER .

277

paid the judgment, and C.'s estate
taken for it, to the exclusion of
C.'s judgment creditors, he ought,
on equitable principles, to be per-
mitted to receive out of B.'s es-
tate, so much as he had lost by the
application of C.'s estate to the
payment of B.'s proper debt. Xor
can the subsequent judgment credi-
tors of B. complain of this. They
acquired their securities with a full
knowledge of, and subordinate to
the prior joint judgment, and have
no legal or equitable right to de-
mand that a mere surety shall dis-
cliarge it for their benefit.

" The principles that have been
brought to view are of easy appli-
cation in this instance, and, indeed,
the illustration which has been of-
fered exactly embraces the case.
Here is a surety, whose money has
been applied in the payment of the
debt of his principal, to the ex-
clusion of his own proper creditors.
That he would be entitled to come
in, by way of substitution, upon
the estate of the principal, is every-
day equity ; and I think it equally
clear, that his creditor, who has
suffered by the appropriation of a
fund which otherwise would have
been available for the discharge of
his claim, may well ask to stand
upon this equity, to the extent of
the deprivation to which he has
been subjected." This decision
was cited and followed in Gearhart
v. Jordan, 1 Jones, 325.

The principle is virtually the
same where a partner assumes the
partnership debts in consideration
of a transfer of the assets, or on
the dissolution of the firm. The
effect of such a transaction is to

render him a principal debtor, and
the outgoing partners sureties, and
as they are entitled to subrogation
to the liens and- securities of the
joint creditors, so their separate
creditors may claim the same
privilege; vol. 1, 14'7 ; See Frow''s
Estate, 23 P. F. Smith, 459.

The question is more compli-
cated where a separate creditor of
a partner, relies on the state of the
partnership accounts as a reason
for compelling a creditor, who has
a paramount judgment against the
firm, to proceed in the first instance
against the real estate of the other
partner. It is obviously inequi-
table to compel one who has a
joint judgment against A. and B.
to enforce it against B., in the ab-
sence of proof that he, rather than
A., should pay the debt. The'
prayer of the bill, consequently,
will not be granted, unless it turns
out on a settlement of the partner-
ship accounts that one of the de-
fendants ought to pay the debt in
discharge of the other's estate ;
Gearhart v. Jordan, 1 Jones,
325,331.

In favor of Sureties.

In the instances hitherto con-
sidered, the right of subrogation
grew out of the equity of the credi-
tor, but it may also arise from the
equity of the debtor to require
that the obligation shall be borne
by another rather than himself.
As between two persons who are
under a common obligation, the
creditor should proceed against
him who is in the first instance
primarily liable, or if such re-
course would involve delay or in-
convenience, assign the remedy

278

MARSHALLING ASSETS.

against him to the other obligor on
receiving the full amount of the de-
mand. Such is the common case of
a surety who pays the amount of
a judgment which has been ob-
tained for the debt, and uses the
judgment as a means of obtaining
contribution from the co-sureties,
or indemnity from the principal.
(Notes to Bering v. Winchelsea,
vol. 1.)

The doctrine is a beneficial one,
and has been amplified and applied
with wise and increasing liberality
in modern times. It is, neverthe-
less, subject to a technical diffi-
culty, arising from the nature of
the equity and the circumstances
under which alone it can be en-
forced. It is well settled that
subrogation will not be decreed
until the creditor is paid in full ;
Field V. Hamilton, 45 Vermont,
35; Hoover v. Epler, 2 P. F.
Smith, -522; Magee v. Liggett,
38 Mississippi, 139. It were ob-
viously unjust to deprive him of
the control of the debt while any
part of it remains unsatisfied.
See vol. 1, 152. A surety may file
a bill to compel the principal
to fulfil the obligation as soon
as it matures; Marsh v. Pike,
10 Paige, 595, 597; See vol.
] , 135 ; but this is distinct from
the right of subrogation. Now
this perquisite to the exercise
of the right is to a great extent
destructive of the subject to which
the right relates. A payment
by one who is directly liable as a
co-obligor or contractor, is legally
a satisfaction of the debt and of
all the securities held for it by the
creditor; see Bowditch v. Green,

3 Metcalf, 360, 362. It does not
vary the case, that the person who
makes the payment is a surety, and
so appears on the face of the note
or bond ; The Ontario Bank v.
Walker, 1 Hill, 652; The Bank
of Salina v. Abbot, 3 Denio, 181.
It is accordingly established in
the English courts, that a surety
may be subrogated on paj^ment to
the collateral securities for the
debt, but cannot have an assign-
ment of the debt itself, because
that is determined by the act on
which he founds his claim, vol. 1,
129 ; Copis V. Middleton, 1 T. & R.
229. If the debt is secui-ed by a
bond or mortgage, the surety is
entitled to an assignment of the
mortgage, but not of the bond.
So if the principal debtor trans-
fers the bond of a third person as
a security for his own, the surety
may be subrogated to the latter
bond, but cannot assert any right
under the former, or to a judgment
which has been obtained upon it
by the creditor. The rule was
established on this basis by Lord
Eldon in Copis v. Middleton, and
is adopted in North Carolina and
Alabama, and a:s it would seem in
Vermont. See Hodgson v. Stevens,
3 Mylne & Keene, 183; Sherwood
V. Collier, 3 Devereux, 380 ; Hod-
ges V. Armstrong, lb. 253 ; Briley
V. Sugg, 1 Dev. & Bat. Eq. 366 ;
Houston V. The Bank, 25 Ala-
bama, 250.

Such a distinction is hardly
logical or just. It supposes that
the accessory ma.y exist, notwith-
standing the extinguishment of
the principal. If the bond be gone,
how can a mortgage given for the

ALDRICH V. COOPER.

279

bond be enforced ? It may be
said, that although the debt is
paid, the legal estate remains
in the mortgagee, and that a court
of equity will compel him to use
it for the surety's benefit, or
compel the principal to redeem
on pain, of being foreclosed. But
this implies that a chancellor may
regard a debt which has been ex-
tinguished, as it regards the credi-
tor, as subsisting for the indemnity
of the suretjr, contrary to the view
of Lord Eldon in Gopis v. Middle-
ton. The argument is, moreover, in-
applicable throughout the greater
part of the United States, where
payment ipso facto divests a
mortgage without the necessity for
a reconveyance. See vol. 1, 870.

It is accordingly well settled
throughout the greater part of
the United States, that payment
by a surety is prima facie a pur-
chase, entitling him to stand in
the place of the creditor as it re-
gards the debt, and every means
or remedy by which it is secured ;
Hays V. Ward, 4 Johnson Ch. 123.
In the language of C. J. Gibson,
" What is very payment in law
may not be payment in equity," be-
cause a chancellor will " enjoin the
principal obligor from setting up
an unjust defence;" Croft v.
Moore, 9 Watts, 451, 453. Or as
the doctrine is stated by the same
judge in Fleming v. Beaver, 2
Rawie, 132, actual payment dis-
charges a judgment at law, but not
in equity, if justice requires the
parties in interest to be restrained
from alleging it, or insisting on
their legal rights. " Agreeably to
the modern doctrine on this sub-

ject, said Chancellor Walworth in
Guyler v. Ernsworth, 1 Paige, 32,
the surety by the mere payment of
the debt, and without any actual
assignment from the creditor, is in
equity subrogated to all the rights
and remedies of the creditor for
the recovery of his debt against
the principal debtor or his prop-
erty, or against the co-sureties or
their property, to the extent of
what they are equitably bound to
contribute. (Nap. Code, art. 1251,
1252 ; Bell's Dick., art. heneficium
cedendaruni actionum ; Civ. Code
of Louis, art. 2157, 2158 ; 2 Robin.
Prac. 136 ; Cheesebrough v. Mil-
lard, 1 John Ch. Rep. 409 ; Eppee
V. Randolph, 2 Call's Rep. 125,
189 ; M'Mahon v. Fawcett, 2 Rand.
Rep. 514."

It is well settled in conformity
to this principle, that a surety
who pays an execution issued
on a joint judgment against
himself and the principal, may
be subrogated to the judgment,
although nothing is said or done at
the time to denote an intention
that the debt should survive ;
Sandford v. M'Lean, 3 Paige,
122; Dempsey v. Bush, 18 Ohio,
N. S. 376 ; Coitrell's Appeal, 11
Casey, 294 ; and although the writ
be returned satisfied, and so
appears of record ; See vol. 1 ,
152 ; Perkins v. Kershaw, 1 Hill
Ch. 344 ; Baily v. Brownfield, 8
Harris, 41, 44 ; Hess' Estate, 19
P. F. Smith, 272; Lathrop v.
Dale, 1 Barr, 512 ; Hill v. Manser,
11 Grattan, 522 ; Dozier v. Lewis,
27 Mississippi, 679 ; Edgerly v.
Emerson, 3 Foster, 555 ; Low v.
Blodgett, 1 Id. 121.

280

MARSHAL LINO ASSETS.

The principle is the same
whether the payment is made di-
rectly by the surety, or by one
who intervenes at his request, and
the creditor cannot defeat the
right by withholding his assent, or
refusing to take the money except
in satisfaction. The privilege does
not extend beyond the surety to a
principal co-obligor or contractor ;
Baily v. Brownjield, 8 Harris, 41 ;
or to one who pays out of the assets
of the principal, or as a trustee
for him ; Einley v. Hill, 4 W. &
S. 426. The right of subrogation
extends beyond the remedy against
the principal to the rights and
remedies of the creditors against
third persons, v(ho are collater-
ally liable for the debt ; Billings v.
Sprague, 49 Illinois, 509 ; York v.
Landis, 65 North Carolina, 535 ;
Kershaw r. The Bank, 2 Caldwell,
391 ; Berthold v. Berthold, 46 Mis-
souri, 55Y ; Butler v. Birkey, 13
Ohio, N. S. 514. So a surety is en-
titled to subrogation against one
who becomes answerable for the
debt subsequently as bail in error,
or for a stay of execution ; Pott v.
Nathans, 1 W. & S. 156 ; Wallace's
Estate, 9 P. F. Smith, 401, 406.
Conversely payment by a surety
who intervenes subsequently at
the principal's request, will not
confer a right of subrogation
against the surety in the original
obligation ; Patterson v. Pope, 5
Dana, 246 ; The Bank v. Rudy, 2
Bush, 326 ; notes to Bering v. Win-
chelsea, vol. 1, 156. But there is
no reason why a third person
should not purchase the debt with
his own money at the principal's
request, or for the purpose of giv-

ing him time, and then enforce it
against the surety, subject to the
surety's right to insist that proceed-
ings shall be instituted forthwith
against the principal. See 2 Am.
Lead. Cases, 412, 5 ed. ; Tabor v:
VanDeusen, 3 Gray, 498.

In considering a prayer for sub-
rogation regard should be had to
the substance of the transaction
rather than its form, and the bill
dismissed if it appears that the
complainant shared in the benefit
of the consideration, and though
nominally a surety ought to con-
tribute ratably to the payment of
the debt. See Kuhn v. North, 10
S. & R. 399.

Where the right of subrogation
exists, as against a principal debtor,
it may also be enforced against
one claiming under him as a pur-
chaser with notice, or as a credi-
tor ( Cherry v. Monroe,2 Barb. Ch. ;
Dempsey v. Bush, 18 Ohio, N. S.
3T6 ; Jumel v. Jumel, 1 Paige),
though not against a bona fide
purchaser ; Reilly v. Mayer, 2
Beasley, 351 ; Williams v. Wash-
ington, 1 Dev. Eq. ; Wise v. Shep-
herd, 13 Illinois ; Orvis v. Newel,
11 Conn. 9T.

Where the prayer of the bill is
simply to substitute the surety for
the principal without imposing any
new or greater burden, it is not re-
quisite that the purchaser should
have had notice of the complain-
ant's equity. As a surety may file a
bill before payment to compel the
creditor to enforce the lien of a
judgment or a mortgage for the
debt, against the principal, or one
to whom the latter has conveyed ;
Marsh v. Pike, 10 Paige, post, 283 ;

ALDRICH V. C OOPEK.

281

Irick V. Black, 2 C. E. Green,
189 ; so he may adopt the same
course after payment, because such
relief does not affect any existing
equitj', and simply places the pur-
chaser where he would have been
if the creditor had assigned the
lien to a third person on receiving
the amount ; Dempsey v. Bush, 18
Ohio, N. S. 376 ; Cherry v. Mon-
roe, 2 Barb. Ch.

The case is obviously different
where the bill seeks to impose an
additional charge on the pur-
chaser, or to deprive him of a
means of obtaining indemnity or
contribution. A surety who has
mortgaged his own property as a
security for the debt, cannot, it has
been said, be subrogated to the
lien of the creditor on another
tract, which has been mortgaged
by the principal for the same debt,
as against a purchaser from the
principal without notice of the
suretyship, because the purchaser
is prima facie entitled to require
that both tracts should contribute
equally to the discharge of the ob-
ligation, and may have been influ-
enced by that in buying ; Or vis v.
Newell, 11 Conn. 97.

The better opinion seems to be
that as subrogation is simply a
means of rendering the surety's
right to contribution or indemnity
effectual, it must be enforced before
the expiration of the six years,
which would be a bar in assump-
sit under the statute of limitations,
and that the surety will be pre-
cluded by suffering that time to
elapse without having the debt as-
signed to him, or filing a bill ; Nel-

son V. Fury, 16 Ohio, N. S. 552 ;
Funk V. Mehafy, 8 Watts, 384.
See vol. 1, 145.

In the Ohio Life Ins. Co. v.
Winn, 4 Maryland Ch. 253, the
court held that a mortgage given
to secure a debt due by simple
contract may be enforced although
the debt itself is barred by the
statute, because a chancellor will
not suffer the mortgagee to redeem
without doing equity ; see Heyer
V. Pruyn, 1 Paige, 465 ; Jackson
V. Sackett, 1 Wend. 94. It was said
to follow that a creditor who is
entitled to be substituted for such
a mortgagee will also be exempted
from the operation of the statute.

The right of subrogation results
from the natural justice of placing
the charge where it ought to rest.
It may, therefore, be enforced when-
ever an obligation which is com-
mon to two or more funds or per-
sons ought to be borne by one of
them rather than another. This
cannot ordinarily be said of part-
ners or co-contractors, and hence
payment b}' one of several joint
debtors does not ordinarily entitle
him to stand in the place of the
creditor as against the rest ; Holmes
v. Day, 108 Mass. 563. Where,
however, a partner assumes the
debts of the firm, he becomes the
principal debtor, and the other
partners sureties, and they may
as such be entitled to subrogation
if compelled to paj' through his
default ; Morris v. Oakford, 9
Barr, 498, 500 ; Wood v. Dodgson,
2 M. & S. 195 ; The jEtna Ins.
Go. V. Wires, 2 Williams, 93 ;
Cherry v. Monroe, 2 Barb. Ch. ;

282

MARSHALLING ASSETS,

3I'Cormick v. Irwin, 11 Casey,
111; Frow's Estate, 23 P. F.
Smith, 459 ; see vol. 1, 14T.

In The Mtna Ins. Go. v. Wires,
the suit was brought for a part-
nership debt. It appeared in evi-
dence that it had been agreed be-
tween the defendants on the
dissolution of the firm, that one of
them should pay the debt, and
that it was subsequently paid with
funds supplied by the other de-
fendant and assigned to his brother
in trust for him. The court held
that the last named defendant
stood in the position of a surety,
and that the judgment might be
euforeed for his use, notwithstand-
ing the payment.

In lilse manner, a partner who
gives a mortgage on land which
belongs to him individually, for a
partnership debt, is a surety as it
regards the mortgaged premises,
and if these are taken for the debt,
the mortgagor and his separate
creditors may be subrogated to
the remedy of the joint creditor
against the assets of the partner-
ship ; Averill v. Loucks, 6 Barb.
470. The reason of the thing is
the same where two joint pur-
chasers agree between themselves,
that one of them shall assume the
whole of the debt, and receive the
whole benefit of the consideration.
In Cherry v. Monro, 2 Barb. Ch.
168, Seymour anel Cherry bought
land and gave a bond and mortgage,
and Cherry subsequently conveyed
his moiety of the land to Seymour
in consideration of an agreement
on his part to pay the bond. It
was held that Cherry thereby be-
came a surety, and was entitled to

be subrogated to the mortgage, if
compelled to pay the bond through
the default of Seymour. The
chancellor said, " After the mort-
gaged premises had been thus con-
veyed, the equitable rights of the
parties to that transaction were the
same as though Seymour had
owned the whole lot originally,
and had mortgaged it to secure
his own debt, and Cherry had
joined with him in the bond for
the same debt as a mere surety.
Had that been the real form of
the transaction originally, no one
can doubt that as between the
owner of the equity of redemption
in the mortgaged premises, and the
surety in the bond, the land would
be the primary fund for the pay-
ment of the debt. And if the
surety should be called upon by
the mortgagees for payment, he
would have the right to be subro-
gated in their place, and to their
remedy against the land for the
payment of the debt." It results
from these decisions, that if the
parties stand in the relation of
principal and surety when the
debt is paid, it is immaterial
that they held a different relation
at the execution of the contract, or
that both are primarily liable to
the creditor.

The authorities above referred to
show that the surety's right to sub-
rogation does not grow out of the
contract with the creditor, but
from his relation with the principal,
which renders it incumbent on the
latter to exonerate the surety.
Wherever one is liable in person
or estate to a charge which ought
to be borne primarily by anotlier

ALDRICH V. COOPER,

283

person or his estate, the person
first named -will have the equity of
a surety, and be entitled to the
securities and remedies of a credi-
tor as a means of carrying that
equity into effect ; Wilks v. Har-
per, 2 Barb. Ch. 338.

A sale ordinarily implies, that
the vendee shall have a clear and
unincumbered title, anie, 2'Il. Un-
less it is otherwise agreed, a judg-
ment, mortgage, or other incum-
brance should be discharged liy the
vendor. And if he fails in the per-
formance of this obligation, the
vendee may be subrogated to the
incumbrance as against the vendor,
and any property belonging to
him on which it is a lien.

The form in which the question
arises does not affect the principle.
If the whole or part of an estate
which has been sold free from in-
cumbrances, is swept away under
the operation of alien, which ought
to be discharged by the vendor,
the purchaser and those claiming
under him will be entitled to stand
in the shoes of the lien creditor for
the purpose of obtaining indem-
nity or reimbursement. Eddy v.
Travers, 6 Paige, 521. In Eddy
V. Travers, land which had been
conveyed for a valuable considera-
tion by an heir, was sold by the
administrator under an order of
court for the payment of the an-
cestor's debts, and the purchaser
was held to be entitled to subro-
gation to the lien of the debtor
on land which had descended to
the other heirs, as a means of ob-
taining contribution.

The question is, nevertheless,
one of intention, depending on the

terms of the contract, and when
it is expressly or impliedly agreed
that the incumbrance shall be de-
ducted from the consideration, or
paid by the purchaser, the vendor
stands in the position of a surety,
and is entitled to exoneration at
the expense of the land ; Morris
V. Oakford, 9 Barr, 498 ; In re
M'Gili, 6 Id. 594; Skinner v.
Harner, 12 Harris, 123, 125 ; and
such is manifestly the rule where
the equity of redemption is con-
veyed as such, or the deed is in
terms subject to the incumbrance,
or the grantee covenants to pay
•the debt; Ferris v. Crawford, 2
Denio, 595 ; Atwood v. Vincent, 17
Conn. 575 ; Halsey v. Reid, 9
Paige, 446 ; Jwmel v. Jumel, T Id.
554; Co.x V. Wheeler, lb. 258;
Vanderkemp v. Shelton, 11 Id. 34 ;
Hansell v. Lutz, 8 Harris, 284. In
Marsh v. Pike, 10 Paige, 595, the
complainant sold and conveyed
certain premises in the City of
New York to M'Lean, subject to
a mortgage of three thousand dol-
lars, which M'Lean covenanted to
jiay in consideration of a corre-
sponding deduction from the price.
M'Lean subsequentlj' sold the
same premises to Towle, who en-
tered into a like covenant. After
the mortgage became due, Marsh
filed a bill to compel M'Lean and
Towle to fulfil their covenants.
The Chancellor held that the effect
of the several conveyances and
covenants was to make the com-
plainant a surety, and the defend-
ants, Towle and M'Lean, the prin-
cipal debtors as it regarded the
bond and mortgage ; Towle, being
primarily, and M'Lean second-

284

MARSHALLING ASSETS,

arily liable, as between themselves.
The complainant might, therefore,
have satisfied the mortgage, and
been substitued in the place of
the mortgagees as against the land.
This, however, was not his only
remedy. He was entitled to come
into a court of chancery to com-
pel the defendants, to whom he
stood as a mere surety, to save
him harmless by the discharge
of the debt. It was true that
M'Lean was the person who agreed
directly with the complainant
to discharge the lien ; but as
Towle had entered into a similar
agreement with M'Lean, and was,
moreover, the owner of the mort-
gaged premises, the decree of the
court below was right in declaring
him primarily liable, and that
M'Lean should have a remedy over
and against him, if he made de-
fault. The ease of Klapworth v.
Dressier^ 2 Beasley, 62, is to the
same effect.

It results from the same princi-
ple, that a sale of the equity of
redemption under a judgment and
execution against the mortgagor
renders the land the primary fund
for the payment of the debt, and
if the mortgagor is subsequently
compelled to pay the bond, he may
be subrogated to the mortgage as
a means of obtaining indemnity
from the purchaser ; Hannell v.
Lutz, 8 Harris, 284 ; Heyer v.
Pruyn, t Paige, 465; Tice v.
Annin, 2 John. Cha. 128.

It is a necessary sequence from
these premises, that if the mort-
gage is assigned to the purchaser of
the equity of redemption, or if he
conveys the equity of redemption

to the mortgagee, it is to the ex-
tent of the value of the land a
satisfaction of the mortgage, be-
cause the opposite conclusion
would involve the incongruity of
holding that an amount might be
recovered from the mortgagee on
the bond, which he would be enti-
tled to recover back by being sub-
stituted to the mortgage ; Tice v.
Annin, Stevenson v. Black, Sax-
ton, 338 ; see Klapworth v. Dress-
ier, 2 Beaslej', 62.

In Jumel v. Jumel, T Paige,
591, the principle was applied
under the following circumstances.
The owner of land executed a bond
and mortgage to one Berger, and
subsequently conveyed the equity
of redemption in the mortgaged
premises to Mary Jumel Bowes, by
a deed containing a recital that the
conveyance was subject to the mort-
gage. Mary Jumel Bowes after-
wards conveyed the premises to a
trustee for the separate use of the
mortgagor's wife. The mortgagor
died, and his widow having taken
out letters of administration, dis-
charged the bond out of his per-
sonal estate. And it was held that
she being the equitable owner of the
land which was primarily charge-
able with the mortgage debt, was
not entitled to be credited as ad-
ministratrix with a payment which
she had really made on her own
account.

The chancellor said, " that it was
plain from the terms of the origi-
nal deed, tljat the grantee was to
take the premises subject to the
payment of the morti^age, and the
grantee having accepted the con-
veyance subject to that implied

ALDKICH V. COOPER.

285

condition, was bound as between
herself and the mortgagor to
pay off and discharge the mort-
gage, so as to relieve him from
personal liability to Berger on
the bond. Although this could
not deprive Berger of the right to
resort to the personal liability of
the mortgagor, or to the mort-
gaged premises, at his election to
obtain satisfaction of his debt, yet
if the grantee of the land permit-
ted the debt to be collected of the
grantor, upon his bond, instead of
paying it herself as she was bound
to do in equity according to the
implied condition in her deed, he
had an equitable claim to be sub-
rogated to the rights of the mort-
gagee to enable him to reimburse
himself hy; a resort to the mort-
gaged premises. And as this equi-
table right to resort to the land as
the primary fund for the payment of
the mortgage debt, appeared upon
the face of the deed, through
which the grantee of Mary Jumel
Bowes obtained his title, he was
chargeable with notice of that
equitable right, equally as if the
deed to himself had in terms de-
clared that he was to take the
premises subject to the payment of
the mortgage."

It results from these decisions
that where land is sold and con-
veyed subject to an incumbrance,
it is primarily answerable for the
payment of the debt, and if the ven-
dee afterwards conveys the premi-
ses to a purchaser with notice, the
original vendor is entitled to stand
in the place of the incumbrancer
as against the land in the hands of
such subsequent purchaser; Jumel

V. Jumel ; Tice v. Annin, 2 John.
Ch. 135 ; Cocks V. Wheeler, 1 Paige,
248, 250. The vendee becomes the
principal debtor, the vendor a
surety. And as the securities given
to the surety by the principal
debtor enure for the benefit of
the creditor, so the incumbrancer
vn&y enforce the express or im-
plied undertaking of the vendee to
discharge the debt ; Halsey v.
Beeves, 9 Paige, 446, 452. See
vol. 1, 174.

SUBEOGATION NOT ENFORCED
CONTRARY TO THE EQUITIES OP
THIRD PERSONS.

As subrogation is an equity, it
will not be enforced where the
effect will be to prejudice or im-
pair the rights of third persohs,
it being well settled that wliere
both parties have an equal claim
to the consideration of a chan-
cellor, the law will be suffered
to take its course; Miller v.
Jacobs, 3 Watts, 43*7 ; Ziegler v.
Louk, 2 Id. 206 ; Erb's Appeal, 2
Pearson & Watts, 296; M'Ginnis'
Appeal, 4 Harris, 445 ; Wallace's
Estate, 9 P. P. Smith, 401 ;
Withers v. Carter, 4 Grattan, 407.
" Where the equities are balanced,
the legal course of an execution is
not to be disturbed ; " Miller v.
Jacobs. The assets will not, there-
fore, be marshalled to the exclu-
sion of creditor, unless the party
who asks for relief has a prior
right or a superior equity ; M '-
Ginnis' Appeal. For a like reason
it is a good answer to a demand
for subrogation that the party who
will be prejudiced by it, or against
whom it is sought to be enforced,
is a purchaser for value and with-

286

MARSHALLING ASSETS.

outnotice; The Mechanics' B.d; L.
Association v. Conover, 1 M'Car-
ter, 219 ; Bush v. The State, 20
Indiana, 432 ; Douglas' Appeal, 12
Wright, 223; Reynolds v. Tooker,
18 Wend. 591 ; Orvis v. Newell, 17
Conn. 97. In the case last cited
two tracts belonging severally to
A. and B., were mortgaged by
them as security for a note. B.
was in fact a surety, but this did
not appear on the face of the in-
strument. B. paid the note, and it
was held that he was not thereby
entitled to be subrogated to the
mortgage as against a purchaser
from ^ A., without notice of the
suretyship.

In Douglass' Appeal, judgment
was obtained against a principal
and surety, which took effect as
a lien on tlie real estate of the
principal. An execution issued
against both defendants, which
was paid by the surety. The
sheriff, thereupon returned the
writ endorsed, " money made," and
with a receipt in full from the
plaintiff^s attorney. The land was
sold two years afterwards at a
sheriffs sale, and the court held
that the subsequent lien creditors
were entitled to the fund in pre-
ference to the surety, who had
slept on his rights, and omitted to
obtain a decree of subrogation, or
have the judgment marked to his
use in due season.

The principle was applied in a
somewhat different form in Reilly
V. Mayer, 1 Beasley, 55. There
stock which had been pledged as
collateral security for a debt se-
cured by mortgage, was fraudu-
lently transferred to a hona fide

purchaser. The mortgagor ex-
ecuted a second mortgage to the
complainant, and it was held that
the latter could not require the
first mortgagor to resort to the
stock before proceeding against
the land.

For a like reason, a court of
equity will not compel a creditor
to proceed against the estate of a
surety, in order to leave the prin-
cipal's estate free for the discharge
of his debts. For as the surety
has a right of subrogation against
the principal, so no one claiming
under the principal can be entitled
to subrogation against the surety ;
Johns V. Reardon, 11 Maryland,
465. In Husted v. Ayers, 15
Conn. 504, a wife mortgaged her
real estate to secure her husband's
debt. The mortgagee subsequently
attached the husband's personal
property, and a bill was filed by a
subsequent attaching creditor to
compel him to enforce the mort-
gage. The court held that the wife's
equity was not only first in point
of time, but also, better than the
complainants. She had agreed to
be answerable for the mortgage
debt, but not to third persons,
nor for other debts. To subject
her indirectly to a liability which
she had not assumed, would he
contrary to the natural equity,
which was the corner stone of the
doctrine of subrogation.

When payment operates as a
purchase.

Payment by one who is collater-
ally liable as drawer, endorser or
guarantor, is not an extinguishment
even at law, unless it is so made and
received ; and takes effect in equity

AIjUWIUU v. t/UUl-EilV.

as a purchase of all the creditors'
rights and remedies against the
party primarily liable for the debt.
Jones V. Broadhurst, 9 C. B. Ill ;
Williams v. Javies, 15 Q. B. 498 ;
Callow V. Lawrance, 3 M. & S.
95 ; Hubbard v. Jackson, 4 Bring.
390 ; Gould v. Eager, 1 Mass.
615 ; Clason v. Morris, 10 John-
son, 426 ; Wilson v. Wright, T
Richardson, 399. In Clason v.
Morris, judgments were recovered
against the maker and endorser of
a note, and the endorser was sub-
rogated to the judgment against
the maker. In like manner, a
guarantor becomes a purchaser on
payment, and as such entitled to
subrogation ; Elkinton V. New-
man, 8 Harris, 481 ; Matthews v.
Aiken, 1 Comstock, 395 ; and it
does not vary the legal aspect of
the case that he entered into the
agreement at the request of the
creditor, and without the knowl-
edge or assent of the del. tor ; Mat-
thews V. Aikens ; Talmage v. Bur-
lingame, 9 Barr, 21, 24. Under
these circumstances he cannot
maintain assumpsit against the
principal, but is not the less enti-
tled to subrogation. It is the as-
sumption of the debt at the request
of the creditor which renders it
incumbent on him to assign on
being paid in full. In Matthews
V. Aiken, Johnson, J., said, " that
the right of a surety to demand of
the creditor whom he has paid in
full, the securities against the prin-
cipal debtor, and to stand in his
shoes against the principal, does
not depend at all on any agreement
or contract on the part of the
debtor with the surety, but grows

rather out of a relation between
the surety and the creditor, and is
founded not on anj' contract ex-
pressed or implied, but springs
from the ground of natural jus-
tice."

It is well settled that one cannot
acquire a right of action against
another by a voluntary payment of
his debt ; thei-e must be a request,
or an obligation from which a re-
quest may be implied ; Oden v.
Elliott, 10 B. Monroe, 315; The
Bank v. Budy, 2 Bush. 326, 331 ;
and it is a consequence of this
principle that subrogation will not
be enforced in favor of a volunteer ;
see Bichmond v. Marston, 15 Indi-
ana, 174 ; Hosier's Appeal, 6 P. F.
Smith, T6 ; Gadsden v. Brown, 1
Spear, Eq. 4; Shinn v. Budd,W-
Carter, Ch. 234; Sanford v.
M'Clure, 3 Paige, 122 ; Wilkes v.
Harper, 2 Barb. Ch. 338 ; 1 Com-
stock, 586 ; Carter v. Black, 4
Dev. & Bat. 25 ; Littleton v.
Thompson, 2 Beasley, 2T4 ; 1
Smith's Lead. Cases, 292, 7 Am.
ed. See Hoover v. Eppler, 2 P. F.
Smith, 524; Wallace's Estate, 9
Id. 401. In Wallace's Estate a, in:^
gatherer who advanced the amount
instead of collecting it, was held
to have no right of subrogation
within this rule.

If, however, such a payment is
made in the name of the debtor,
and adopted or ratified by him, it
will as effectually extinguish the
debt as if it had been made at liis
request, and may then serve as the
foundation of a recovery in assump-
sit, for money paid, laid out and
expended for his use. See Bel-
shaw V. Bush, 11 C. B. 191, 206.

288

MARSHALLING ASSETS.

TJnless the rule that subrogation
will not be decreed in favor of a
volunteer is applied cautiously, it
may lead to results that are not
reconcilable with justice. Whether
payment operates as a purchase or
as an extinguishment, depends
first on the design, and next on
the right of him who makes the
payment. See Gernon v. M' Cann,
23 Louisiana Ann. 84 ; 1 Smith's
Lead. Cases, 634, 1 Am. ed. ; Moore
v. Beason, 46 New Hamp. 215, 219.
If a stranger paj^s the amount of
a judgment with an express or im-
jjlied agreement that it shall sub-
sist for his use, it is an equitable
assignment, and will be so enforced
in chancery. See Kuhn v. North,
10 S. & R. 399. But a stranger
cannot acquire such a right with-
out the assent of tjie creditor
{SanfordY. M'Lean, 3 Paige, 122 ;
The Bank v. Budy, 2 Bush. 226 ;)
unless he intervenes at the re-
quest of the debtor, and for his
benefit, when the creditor is, as it
would seem, compellable to assign
on receiving the debt, interest and
costs, pos^. But a payment by one
who is a surety, or secondarily liable
for the debt, is a purchase if so de-
signed, although the intention to
keep the debt alive is not made
known to the principal debtor or
the creditor, or assented to by
them ; Hosiers'' Appeal, 6 P. F.
Smith, 15.

It has also been held that where
the assets will be marshalled in
favor of a creditor, they will also
be marshalled in favor of an ad-
ministrator, guardian, or trustee,
who has paid the debt ; Torres
Estate, 2 Rawle, 250; Wallace's

Appeal, 5 Barr, 103 ; Kelchner v.
Forney, 5 Casey, 47; M'Gaw v.
Huffman, 12 Grattan, 621; JElli-
cott V. Ellicott, 6 Gill & J. 35. A
junior judgment creditor may' be
subrogated to a paramount judg-
ment, as against an intervening
judgment creditor, although heneg-
lects to have the paramount judg-
ment marked to his use, and the
satisfaction is erroneously entered
of record ; Hosier's Appeal, 6 P.
F. Smith, 16. Thompson, C. J.,
said that " the omission to record
such an entry might be material
where subsequent liens were con-
cerned, but was immaterial as it
regarded one that was already
fixed."

It results from the same princi-
ple, that a bo7ia fide purchaser at
an administrator's sale for the
payment of debts, who pays ofi' a
mortgage in the belief that he has
acquired a valid title to the land,
may be subrogated to the lien of
the mortgage as against the heir,
if the latter sets the sale aside for
a defect of form ; Vallee v. Wheeler,
29 Missouri, 152. The question
was, nevertheless, determined the
other way in Peters v. Florence,
2 Wright, 1 94, in a case substan-
tially the same. But there is little
doubt that a payment by one who
has an interest to protect, although
remote or slight, ma}' take effect
as a purchase, if such an interpre-
tation will subserve the purposes
of justice ; Moore v. Beason, 46
New Hamp. 215 ; Hastings v.
Stevens, 29 Id. 513 ; John G. Vo-
ter's Case, 2 Johnson, Ch. 504.

It was determined in Budd v.
Shinn, that an administrator who

discharges a mortgage out of his
own funds, is a volunteer, and
therefore not entitled to subroga-
tion, but the relief was asked
against a grantee, from one to
whom the administrator had sold
the land for the payment of debts,
and not against a devisee or heir.
It results from what has been
said, that as a stranger cannot
extinguish a debt "without the
debtor's assent, so he cannot pur-
chase it without the creditor's. If
neither condition is satisfied, the
act is null, and does not confer a
right, or extinguish that which
existed previously. See Merry-
man V. The State, 5 Harris &
Johnson, 423; The Sun M. Ins.
Co. V. The Independent M. Ins.
Go.., 15 Maryland, 297; Shaw v.
Burr, 1 M'Carter, 234 ; Wilson v.
Brown, 2 Beasley, 27*7 ; Peters v.
Florence, 2 Wright, 194. It was
accordingly held in the case last
cited, that the payment of a mort-
gagee by an executor, under a
mistaken impression that he was
the owner of the propertj-, or that
the debt was due by the testatrix,
did not entitle him to subrogation,
it appearing that bis intention was
to satisfy and not to purchase, and
that no assignment had been made
to- him or for his benefit. The
court held that one could not
claim as a purchaser in the ab-
sence of a contract of sale, and
that when such a contract was not
made by the pai-ties, it could not
be made for them by a chancellor.
But the creditor may obviously
agree to transfer the debt to a
third person, in consideration of
receiving the whole or any part
VOL. II. — 19

of the amount without consulting
the debtor, and if such is the intent
with which the money is given and
received, the transaction will oper-
ate as an equitable assignment,
notwithstanding any defect of
form. See vol. 1, 157.

The rule that the debt ceases to
exist on paj'ment, is not universal
even at law ; or, to speak more
accurately, as payment is the per-
formance of a pecuniary obliga-
tion, it must proceed from the
debtor, or from some one acting on
his behalf; James v. Isaacs, 12 C.

B. 791; Kemp v. Ball, 10 Ex-
chequer, 607 ; 1 Smith's Lead.
Cas. 634, 7th Am. ed. A ratifica-
tion may, as in other cases, take
the place of a request. B. may take
advantage of payment made for him
by A., though he did not authorize
A. ; and hence a note or money
given by A. on account of B. may
be pleaded to an action brought
against B. for the debt, and it is
not a sufficient reply that A. was
a volunteer whom B. might have
disavowed; Belshaio v. Bush, 11

C. B. 191; Simpson v. Egginton,
1 Exchequer, 845. So, if B. is a
surL'ty, such a paj'ment ra&y entitle
him to subrogation against any
one who is primarily liable for the
debt. But one cannot ratify an
act which is not done on his ac-
count ; and hence if a stranger
paj's a debt under a mistaken be-
lief that it is his, the payment is
not a defence to an action against
the person by whom the obligation
is really due ; The Sun M. Ins.
Go. V. The Independent M. Ins
Go., 15 Maryland, 297.

As a payment maj- operate as a

290

MARSHALL! KG ASSETS,

purchase, when requisite for the
ends of justice, so the purchase of
a debt will not confer a right
when equity and good conscience
require that the obligation should
cease; vol. 1, 136. See Kilborn
V. Mohhins, 8 Allen, 466, 471. A
principal cannot throw the burden
on the surety by direct means, and
should not be allowed to do so
through the agency of another.;
Jrick V. Black, 2 C. E. Green, 189.
If the payment is made with his
funds by whatever hand, the debt
is extinguished ; Kinley v. Hall,
4 W. & S. 426. So a partner can-
not equitably purchase a firm debt
through a third person, and en-
force it against his co-partners ;
Logan v. Reynolds, 21 Alabama,
26 ; see M'Intyre v. Miller, 13 M. &
W.4T2; see vol. 1,130. An attempt
by one who is primarily liable to
shift the burden unduly to another,
is contrary to the principle which
lies at the foundation of the doc-
trine of subrogation, and should
be enjoined ; see BrackettY. Wins-
low, 11 Mass. 153, 160; Kuhnv.
North. But a third person who
has purchased the debt with his
own money at the request of the
principal, in order to afford him
time, but without an agreement
to that effect, may enforce it sub-
sequently against the surety, sub-
ject to the right of the surety
to require that any assets of the
principal which are accessible,
shall be taken in execution in the
first instance ; see Tabor v. Van
Deusen, 3 Gray, 498; Irick v.
Black.

In Sanford v. M'Glain, 3
Paige, 122, Chancellor Walworth

held the following language : " If
the complainant had actually ad-
vanced the money to pay ofl" those
judgmehts, it is doubtful whether
he would have been equitably en-
titled to be substituted in their
place without some conventional
arrangement to that effect with
the creditors. It is only in
cases where the person advancing
money, to pay the debt of a third
party, stands in the situation of a
surety, or is compelled to pay it
to protect his own rights, that a
court of equity substitutes him in
the place of the creditor, as a
matter of course, without any
agreement to that effect. In other
cases, the demand of a creditor
which is paid with the money of a
third person, and without any
agreement that the security shall
be assigned or kept on foot for
the benefit of such third person,
is absolutely extinguished. Such,
also, is the rule of the civil law ;
although by that law a surety
paying the debt is subrogated to
the rights of the creditor ipso
facto ; " see Curtis v. Kitchen, 8
Martin's Rep. 106 ; Wilson v.
Brown, 1 Beasley, 211.

Notwithstanding the weight due
to these remarks, it is not easy
to determine the effect of a merely
voluntary payment by one who
supposes that he is under an obli-
gation. It certainly does not ex-
tinguish the debt, nor does it con-
fer a right of subrogation. Where
the mistake is purely one of law,
it can hardly be the duty of
the creditor to refund. Yet, as
he retains the right to proceed
against the debtor, it would seem

A Li D ±1, 1 U il

(J U U t* IS K ,

he ought to exercise it for the
benefit of the person who has
fallen into the error; see The
Sun M. Ins. Co. v. The I. M.
Ins. Co., 15 Maryland; Be.rthold
V. Berthold, 46 Missouri, 56T ;
Merryman v. The State, 5 Harris
& J. 423 ; Rohinson v. Leavett, 1
New Hampshire, 100 ; Low v.
Blodgett, 1 Foster, 121 ; Buck v.
Blanchard, 2 Id. 303; Seath v.
West, 6 Id. 131 ; Brew v. Bust,
36 New Hampshire, 335.

Invekse order of alienation.

The authorities which have
been cited show Ihat a vendor
who has been paid in full cannot
throw the burden of encumbran-
ces on the purchaser, ante, 270. If
a judgment is obtained which is a
lien on the defendant's land, and
he sells and conveys part of it, the
judgment creditor ought to pro-
ceed in the first instance against
the unsold portion, and if he takes
that which has been sold in execu-
cution, the purchaser may be sub-
rogated to the judgment; In re
M'Gill, 6 Barr, 514 ; Champlin v.
Williams, 9 Id. 340. As this
equity is obligatory on the ven-
dor, so it maj^ be enforced against
one claiming under him subse-
quently as a purchaser, whose
right cannot rise higher than
his. Hence the established rule
of American jurisprudence, that
where land subject to an incum-
brance is sold successively in
parcels, each of them will be lia-
ble in the inverse order of aliena-
tion. If a judgment or mortgage
is a lien on three tracts of land
belonging to the same person, who
sells one of them to A., another

afterwards to B., and flnallj',
the third to C, A. is entitled
to exoneration at the expense
of B. and C, while B. has a
similar right against C. ; and if
an execution is issued on the judg-
ment, the court may direct that
C.'s land shall be first exposed to
sale, next B.'s, and that A.'s shall
not be sold, unless the other tracts
do not produce enough to satisfy
the debt ; Meuey's Appeal, 4 Barr,
80.

The equity depends first on the
purchaser's right to have so much
of the land as he has bought and
paid for, free from incumbrance,
and next on the duty of the judg-
ment creditor who has two funds
open to him, to take that which
will not prejudice the purchaser;
The Agricultural Bank v. Fallen,
1 Freeman Ch. 419, 8 Smedes &
Marshall, 337. In Fallen v. The
Agricultural Bank, the chancellor
said : " It is a general principle that
where one partj' has a lien on or in-
terest in two estates, and another
has a lien on and interest in one
of those estates only, the latter is
entitled to throw the former upon
that estate which he cannot reach,
if that be necessary to adjust the
rights of both parties, and can be
done without prejudice to him
who holds the double security. In
administering these equities, the
court does not assume to divest or
postpone a prior incumbrance, but
simply to so apply and limit it,
that equal justice may be done to
all concerned in the fund to which
it attaches. I can see no reason
in favor of limiting the doctrine
to mere incumbrances. It can

292

MARSHALLING ASSETS.

have no necessary dependence
upon the character of the interest
or title of the claimants ; it rests
upon the intrinsic justice and
morality of the maxim that a
party shall so exercise his own
rights as not to do unnecessary
injury to those of others." It was
said in like manner, in Surd v.
Uaton, 22 Illinois, 122, that a
court of equity would compel a
judgment creditor to exhaust the
property of the judgment debtor,
before levying on land, which
though subject to the lien of the
judgment, had become the property
of a third person through a sale
or a conveyance.

In Gillv. Lyon, 1 Johnson's, Ch.
447, one who had purchased land
and given a mortgage for the
purchase-money, sold part of tlie
mortgaged premises to the defend-
ant, and the residue was subse-
quently bought by the plaintiff at
a sale under a judgment, which
had been obtained against the
mortgagor after the sale to the de-
fendant. The chancellor held, that
as the vendor could not compel
his vendee to contribute to the
payment of the mortgage, so no
such claim could be enforced by
the purchaser whose right did
not rise higher than the person
from whom he bought.

This decision was cited and con-
firmed in Clowes v. Dickinson, 5
Johnson, Ch. 295 ; 9 Cowen, 403.
There a judgment against one
Vanderheyden, was a lien on two
tracts of land belonging to him,
which may be designated respec-
tively, as A. & B. He sold tract
A. to the complainant, and the

defendant afterwards bought tract
B. under an execution issued on
the judgment. The judgment was
then assigned to a third person in
trust for the defendant, who
caused tract B. to be levied on
and exposed for sale, and be-
came the purchaser. The bill
alleged that tract B. was more
than adequate to satisfy the judg-
ment, and that the subsequent levy
and sale of tract A. were wrongful,
and then prayed that the defenc-
ant might he compelled to convey
the last mentioned tract to the
plaintiff. The chancellor held that
when the plaintiff bought from
Vanderheyden, the residue of Van-
derheyden's land became in equity
first chargeable with the burden
of the judgment. If the judgment
creditor had attempted to enforce
the lien against the tract which
had been conveyed to the plaintiff,
he would have been compelled to
levy in the first instance upon the
land remaining unsold in the hands
of Vanderheyden. If a descent
had been cast, the land would
have fallen to the heir, charged
with the burden which had at-
tached to it while in the hands of
the ancestor ; and it was plain on
principle and under the authority
of Gill V. Lyon, that a purchaser
stood in this respect on the same
footing as the heir. Both were
necessaril}^ subject to the rule that
one has not a higher or better
right than the person from whom
he derives title. If, therefore,
the complainant had asked for an
injunction to restrain the levy
which had been made on his land,
it would have been granted. But

AliDRICH V. COOPER.

zya

inasmuch as he had stood by and
suffered the legal title to be con-
vreyed to the defendant, who had
afterwards made valuable improve-
ments, the remedy would be
limited to a pecuniary compensa-
tion for the value of the land,
which was to be estimated by what
it brought at the sheriffs sale. This
decision was affirmed by the court
of errors, except on tlie question
of amount, which was held to
depend on the real value of the
land, and not on the price paid to
the sheriff.

It is well settled in conformity
with these decisions, that where
land, which is subject to the lien
of a mortgage or other paramount
incumbrance, is sold in parcels
successively to different persons,
the buyers are prima facie charge-
able in the inverse order of aliena-
tion. Such is the established
rule in New York and Pennsylva-
nia ; and it prevails throughout the
greater part of the United States
James v. Hubbard, 1 Paige, 228
Governeur v. Lynch, 2 Id. 300
Jenkins v. Freyer, i Id. 41 ; Guion
V. Knapp, 6 Id. 35 ; Patty v.
Pease, 8 Id. 279 ; Skeel v. Spraker,
lb. 182 ; Chapman v. West, 1 1 N.
Yorlf, 125 ; Jones v. Myrick, 8
Grrattan, 179 ; Cooper v. Bigly, 13
Michigan, 463 ; The Howard Ins.
Co. V. Halsey, 4 Selden, 271 ;
Nackin v. Stanley, 10 S. & R. 450 ;
Taylor's Ux'ors v. Maris, 5 Rawle,
51 ; Cowden's Estate, 1 Barr, 267 ;
Mevey's Appeal, 4 Id. 80 ; Paxton
y. Harrier,! Jones, 312; Cooper
v. Bigley, 13 Michigan, 463; Igle-
hart V. Crane, 42 Illinois, 372;
Hunt V. Mansfield, 31 Conn. 478 ;

Nelson v. Trump, 6 Ohio, N. S.
97 ; Wykoff v. Davis, 3 Green Ch.
224 ; Brown v. Simmons, 44 New
Hampshire, 475 ; Gates y. Adams,
24 Vermont, 71; Fallen v. The
Agricultural Bank, 1 Freeman, 419;
Thompson v. Murray, 2 Hill Ch.
204, 213; Stone v. Schultz, 1 Id.
465, 500 ; The Bank v. Howard, 1
Strobhart Eq. 173 ; Wright v.
Atkinson, 3 Sneed. 585 ; Conrad
V. Harrison, 3 Leigh, 532 ; The
Bank v. Dundas, 11 Alabama, 661,
668 ; Cummings v. Cummings, 3
Kelly, 460; Blair v. Ward, 2
Stocltton Ch. 119 ; Gaskill v. Gas-
kill, 2 Beasley, 400 ; Mount v.
Potts, 8 0. E. Green, 188; The
Commercial Bank v. The Western
Reserve Bank, 11 Ohio, 444 ;
Shannon v. Marselis, Saxton, 413 ;
Holden v. Pike, 24 Maine, 427 ;
Gushing v. Ayer, 25 Id. 383 ; Shep-
perd V. Adams, 32 Id. 63 ; Allen
V. Clark, 17 Pick. 47 ; Chase v.
Woodbury, 6 Gushing, 143 ; Brad-
ley V. George, 2 Allen, 392 ; Welsh
V. Beers, 8 Allen, 151 ; Kilhorn v.
Bobbins, lb. 466 ; George v. Wood,
9 Allen, 80.

The cases of Parkman v. Welch,
19 Pick. 241, and The Presbyterian
Corporation v. Wallace, 3 Rawle,
109, which laid down a different
principle, have been set aside by
the subsequent course of decision.
See Cowden's Estate, 1 Barr, 26J ;
George v. Wood.

In Bradley v. George, 2 Allen,
892, Daniels having mortgaged
sixteen acres of land, conveyed six
acres of the same land with war-
ranty to the plaintiff. He after-
wards mortgaged the residue to the
defendant, who tbok an assignment

294

MARSHALLING ASSETS,

of the paramount incumbrance.
The court held that as the plaintiff's
part of the land, was exonerated by
the warranty from the mortgage
as between him and Daniels, it was
also exonerated as against one who
derived title subsequently from
Daniels. The defendant might un-
doubtedly as assignee of the first
mortgage, have proceeded to a
foreclosure and sale of the whole
of the mortgaged premises, if
the whole was requisite to sat-
isfy the mortgage debt. But as
the ten acres which Daniels had
retained were adequate for that
purpose, he might be restrained
from adopting a course which
would result in a circuity of action
as between him and the plaintiff.

The doctrine was perspicuously
stated by Chancellor Kent, in
Clowes V. Dickinson, and shown
to be one which though adminis-
tered in cliancery, has its origin in
common law. '' The principles of
equity, are clearly laid down in Sir
William HarherVs case (3 Coke,
11, b), where it was resolved, that
if A. be seised of three acres, and
acknowledge a recognizance or
statute, and enfeoff B. of one acre,
C. of another acre, and the third
acre descends to his heir, and if
execution be sued out against the
heir, he shall not have contribu-
tion against the purchasers, for
the heir sits in the seat of his an-
cestor ; and the rule is the same,
though the purchaser take the land
without a valuable consideration,
and though the heir be charged as
terre-tenant, (vide Harvey v. Wood-
house, 1'731 Select Cases in Ch. 3, 4,
S. P.) It was also held in the same

case, that the land of the conusor
in the recognizance was exclusively
to be charged, when divers persons
have purchased any of the land
subject to the recognizance, be-
cause the purchaser does not stand
in the same degree with the conu-
sor himself; but where there are
several heirs, or where several per-
sons join in a recognizance, one
heir, or one conusor, should not be
charged exclusivelj', for their re-
lations and duties were equal, and
the charge should be equal.

" This case settles the question
of contribution as between the
vendor and the purchaser, or the
heirs of the vendor and the pur-
chaser ; and if there be several
purchasers in succession, at differ-
ent times, I apprehend that in that
case, also, there is no equality, and
no contribution as between these
purchasers. Thus, for instance, if
there be a judgment against a per-
son owning at the time three acres
of land, and he sells one acre to
A., the two remaining acres are
first chargeable in equity with the
payment of the judgment debt, as
we have already seen, whether the
land be in the hands of the debtor
himself or of his heirs. If he sells
another acre to B., the remaining
acre is then chargeable in the first
instance with the debt, as against
B., as well as against A., and if it
should prove insufficient, then the
acre sold to B. ought to supply the
deficiency, in preference to the acre
sold to A., because, when B. pur-
chased, he took his lands chargea-
ble with the debt in the hands of
the debtor, in preference to the
land sold to A. In this respect.

A Li D K I U 11

U O U r B K ,

we may say of him, as is said of
the heir, he sits in the seat of
his grantor, and must take the
land with all its equitable burdens ;
it cannot ,be in the power of the
debtor, by the act of assigning or
selling his remaining land, to throw
the burden of the judgment, or a
ratable part of it, back upon A.
It is to be observed, that the debt,
in this case, is the personal obliga-
tion of the debtor, and that the
charge on the land is only by way
of security ; the case is not analo-
gous to a rent charge, which grows
out of the land itself, and where
every purchaser of distinct parcels
of a tract of land charged with the
rent, takes it with such a propor-
tionable part of the charge. The
owners of the land, in that case,
all stand equal, and if the whole
rent be levied upon one, he shall
be eased in equity by a contribu-
tion from the rest of the pur-
chasers, because of the equality of
right between them ; (1 Eq. Cas.
Abr. tit. Contribution, A. 1.)"

Notwithstanding the doubt sug-
gested by Story (2 Story Eq. Sec
1233), this reasoning has not
been successfully impugned. See
Gowden Estate, 6 Barr, 26*7, 271 ;
Brown v. Simmons, 44 New Hamp-
shire, 475, 478. If a purchaser
may cast the burden of a para-
mount incumbrance on the vendor,
he must have the same right
against one to whom the vendor
subsequently conveys. It would
otherwise be in the vendor's power
to defeat the right by simply part-
ing with the land. It is well
settled, that if A. is entitled as
against B., he will also be entitled

as against one claiming subse-
quently under B. ; Cowden's Estate.
The only exception that of a bona
fide purchase, does not apply,
where land is sold subject to an
incumbrance covering other land,
bei ause the vendee is put on in-
quiry and may ascertain the truth
by examining the record.

It is immaterial as it regards
the application of the principle,
whether the paramount incum-
brance was created by the vendor,
or results from the act of a prior
owner. If land, which has been
mortgaged, is conveyed to a pur-
chaser, and sold by him succes-
sively in parcels to different per-
sons, each parcel will be liable to
the mortgage debt in the inverse
order of alienation ; Gummings v.
Gummings, 3 Kelley, 460 ; Nellons
v. Truax, 6 Ohio, N. S. 97 ;
Wykoff V. Davis, 3 Green, Ch.
224. The vendor is charged not
because the lien is for his debt, but
because he has agreed to indemnify
the purchaser ; Guion v. Knapp,
6 Paige, 35. " The principle,"
said Chancellor Walworth, in
Guion V. Knapp, '' of charging
different parcels of the mortgaged
premises, which have been sold at
different times subsequent to the
mortgage, in the inverse order of
their alienation, is not always con-
fined to the original alienations by
the mortgagor, who is personally
liable for the payment of the debt.
The principle is equally applicable
to several conveyances at different
times, by a grantee of the whole
or a part of the mortgaged premi-
ses, where he conveys with war-
ranty. Thus, if the mortgage is

296

MARSHALLING ASSETS.

a lien upon 200 acres of land, and
the mortgagor conveys 100 acres
thereof to A., the 100 acres whi<;h
remains in the hands of the mort-
gagor, is to be first charged with
the payment of the debt, and, if
that is not sufficient, the other 100
acres is next to be resorted to.
But, if A. has subsequently con-
veyed one-half of his 100 acres to
B. with warranty, the 50 acres re-
maining in the hands of A. is, in
equity, first cliargeable with the
payment of the balance of the
debt, which cannot be raised by a
sale of the 100 acres that still be-
long to the mortgagor or his sub-
sequent grantee, before resort can
be had to the 50 acres which A.
has conveyed with warranty. And
if A. conveys his remaining 50
acres to C, either with or without
warranty, that portion of the
premises is still liable for the bal-
ance of the mortgage debt, and
must first be sold before a resort
can be had to the 50 acres previ-
ously convej'ed with warranty to
B."

The rule is not less applicable as
between successive mortgagees of
land which is charged with the
lien of a paramount incumbrance,
because each is entitled to require
that so much of the value of the
land as is not needed to satisfy
the antecedent liens, shall be ap-
propriated to his use, and this
right being valid as against the
mortgagor, cannot be defeated by
his act in subjecting the premises
to an additional charge in favor of
a third person ; Gowdeii'ii Estate,
1 Barr, 26T ; Schryuer v. Teller,
9 Paige, 173 ; The New York L.

Ins. Co. V. Melnor, 1 Barb. Cli.
353 ; Conrad v. Harrison, 3
Leigh, 532 ; Messeruey v. Bar-
relli, 2 Hill, Ch. 516.

One who has a right of subroga-
tion to an incumbrance, is as much
entitled to the aid of a chancellor
as if the lien had been created for
his benefit, and hence a purchaser
of part of a tract which is subject
to an antecedent judgment, may
applj' for an injunction to prevent
any act of waste or spoliation
tending to render the residue in-
adequate to satisfy the judgment ;
Johnson v. White, 11 Barb. 96.
See vol. 1, 1021.

The principle is irrespective of
the origin or nature of the in-
cumbrance, and when real estate
is charged by will with debts or
legacies, and sold successively in
parcels to different persons, each
is chargeable iu the inverse order
of alienation, and the aid of a
chancellor may be asked to place
the burden where it must ulti-
mately rest ; Nellons v. Truax,
6 Ohio, N. S. 97 ; Jenkins v.
Freyer, 4 Paige, 47.

Where a grant of part of the
land covered by an incumbrance
contains a covenant of warranty,
there can be no doubt that the
burden is to be borne exclusively
by the residue of the land in the
hands of the grantor. This re-
sults not from the technical ope-
ration of the covenant, but from
the evidence which it aff'ords of
the intent, and the effect will be
the same if it appears unmistaka-
bly from any part of the deed, or
from a collateral writing, that the
vendee is to have an unincumbered

ALDRICH V, COOPER,

297

title ; Cooper v. Bigley, 13 Michi-
gan, 474. In Cooper v. Bigley, the
court held that the rule that the
vendor's property must be exhaus-
ted before recourse can be had to
the vendee's, depends on the justice
of paj'ing a man's debts out of his
own estate, instead of tliat whioh
he has conveyed to another. It
does not, therefore, necessarily
depend on the existence of a cove-
nant of warrantj"- in the deed. An
owner may, in disposing of his
property, charge any part of it
with an incumbrance which is
common to tlie whole, and if he
does, the purchaser will take it sub-
ject to the burden, whatever may
be the relative date of his deed ;
Welch V. Beers, 2 Allen, 151;
Kilhorn v. Bobbins, lb. 466, 471.
A covenant of warranty may have
a material influence in showing that
the grantee is to be exempt from
a paramount charge, but there is
no sufficient ground for holding
that such an intent cannot be de-
duced where the title is not war-
ranted. On the contrary, the doc-
trine that the lien should be en-
forced against the vendor's land,
before proceeding against that
which he has parted with, applies,
unless there is evidence of an op-
posite design. This is the infer-
ence of common sense, because one
who sells a part of a tract which
he has mortgaged, may reasonably
be supposed to intend that the
portion which remains undisposed
of in his hands, shall be appropria-
ted in the first instance to the
payment of the debt.

The administration of this rule
depends primarily on the maxim.

prior in tempore potior in jure,
As between equal equities that is
best which is first in point of time.
It is not requisite that the second
pui'chaser should have notice of
the equity of the first purchaser;
Ellison V. Pecare, 29 Barb. 333 ;
but it is requisite that the first
purchaser should not have misled
the second by omitting to perfect
his title. See Chaser. Woodbury,
6 Gushing, 143; Brown v. /Sim-
mons, 44 New Hampshire, 475 ;
La Farge Fire Ins. Co. v. Bell,
22 Barb. 54 ; The New York Life
Ins. Co. V. Cutler, 3 Sandford, Ch.
176; Chapman v. West, 17 New
York, 125. If part of an incum-
bered tract is sold to A., and the
residue to B., each has an equal
right against the vendor, but A.
has the advantage of being first in
point of time. If B. means to be
secure he should inquire whether
the title to the residue is still in
the vendor, and as the registry is
open to him for this purpose, if
A.'s deed has been duly recorded,
it will operate as constructive no-
tive to B. ; Chapman v. West. It
follows converselj'^, that the rule
will not be enforced in favor of a
purchaser whose title does not ap-
pear of record, unless the defect is
supplied by notice in some other
form ; Chase v. Woodbury. Un-
der these circumstances the sec-
ond purchaser presumably acts in
the belief that he is the first, and
should be protected in a right
which has been acquired in good
faith and for value ; Brown v. Sim-
mons, 44 New Hampshire, 475,
479. In the case last cited. Bel-
lows, J., said, that although a

298

MARSHALLING ASSETS,

grant of a part of the land cot-
ered by a mortgage, does not in
terms impose a lien upon what is
left, yet as it makes such residue
primarily liable for the whole
debt, it is in effect as much a new
incumbrance as if the grantor
had given a mortgage to the pur-
chaser to indemnify him against
the paramount lien. The case is,
therefore, clearly within the spirit
of the registry acts, which are de-
signed to give notice to creditors
and purchasers of every deed that
can in anywise affect the title.
Unless a purchaser of part of
a tract of land has notice that
another part had been conveyed to
a third person, he may regard it
as still belonging to the vendor,
and therefore primarily liable
for the discharge of a mortgage
which was a lien on the entire
tract.

In Chase v. Woodbury, Na-
thaniel Sibley mortgaged a farm
belonging to him to one Darius
Russell. He then sold and con-
veyed one half of the farm with
warranty to Sylvester Sibley, and
on the same day executed a deed
with warranty of the other half to
Reuben Sibley. The plaintiff
afterwards purchased Sylvester's
moiety, and obtained a deed. The
deed to Sylvester Sibley was re-
corded on the day that it bore date,
but Reuben Sibley did not record
his deed until after the convey-
ance from Sylvester Sibley to the
plaintiff. The court held, that as
the deeds to Reuben and Sylvester
were simultaneous, and as tliere
was nothing in the terms of either
of them to subordinate it to the

other, both were equally subject to
the mortgage. But Reuben did
not put his deed on record, until
afterthe plaintiff had acquired title.
His failure in this regard was mani-
festly calculated to mislead the
plaintiff. On consulting the re-
cord, she would be induced to be-
lieve that one-half of the premises
remained in the possession of the
original grantor, and was primarily
liable to the mortgage debt. Reu-
ben, though standing in the first
instance on the same footing as
Sylvester, must consequently be
postponed to one who had pre-
sumably suffered through his
laches.

It had been contended that the
deed from Nathaniel Sibley to
Reuben would not have been
notice to the plaintiff if recorded,
because it was not of the land
which she had purchased. But
the theory of the defendant was,
that because the deeds to Reuben
and Sylvester were simultaneous,
both inoities were equally liable
to contribute to the payment of
the mortgage debt. If so, Reuben's
failure to record his deed was in
effect a failure to record an equit-
able charge of one half of the
mortgage debt, growing out of
that conveyance. He was, there-
fore, in the same position as if he
had taken a mortgage from the
original grantor, Nathaniel, of
the other moiety of the land as a
counter security', and failed to re-
cord it.

It results from these decisions,
that " where the record discloses
an incumbrance on property of
which a party is taking a convey-

ALDKICH V. COOPER.

299

ance, and also discloses, tbe further
fact that the incumbrance rests
on other property, and on an ex-
amination directed to such other
property, it becomes apparent that
a conveyance of the latter has
been made, which creates an equit-
able right to throw the burden of
the incumbrance on the first prop-
erty, the purchaser will be pre-
sumed to have made such examina-
tion, arid will be regarded as
constructively notified of such
equity ;" Hunt v. Mansfield, 31
Conn. 488 ; Brown v. Simmons, 44
New Hampshire, 475, 481; ante,
154, notes to Le Neve v. Le Neve.

The failure of the purchaser to
record his title, may be supplied
by information conveyed through
other channels; George v. Kent, 1
Allen, 16 ; Pilcey. Goodenow. One
who enters into an agreement for
the purchase of land, and pays
the price, thereby acquires a right
to subrogation to the lien of a
paramount incumbrance on other
land belonging to the vendor;
Chapman v. West, IT New York,
125 ; James v. Hubbard, 1 Paige,
228 ; and a purchaser with notice
of this equity will be subject to
it, although the title of the first
purchaser has not been perfected
by a conveyance, or recorded.
In Chapman v. West, construc-
tive notice arising from a suit for
the specific performance of a con-
tract for the sale of part of an in-
cumbered tract, was accordingly
held to render the residue of the
tract chargeable in the inverse
order of alienation as against a
buyer pendente lite.

In Chapman v. West, Draper

mortgaged two lots of ground,
and then entered into a written
agreement with the complainant
to sell one of them to him, clear
of incumbrances. The complainant
filed a bill against Draper, and
made the mortgagees parties with
a prayer that they might be en-
joined from proceeding against the
lot which the complainant had pur-
chased, unless the other lot was
inadequate to satisfy the mort-
gage. Strong, J., said, " The ap-
pellant was entitled to a decree for
a specific performance of the con-
tract with Draper. If a convey-
ance to him had been executed at
that time, he would have acquired
by it, as an incident, the equitable
right to require the mortgagees to
seek satisfaction upon a fore-
closure, by a sale in the first in-
stance of that portion of the
mortgaged premises still owned
by Draper, after the conveyance
to the appellant. It is a familiar
principle of equitj'^, that when
mortgaged premises are sold sub-
sequent to the mortgage to differ-
ent purchasers in parcels, the
parcels on foreclosure are to be
sold in the inverse order of their
alienation, according to the
equities of the respective pur-
chasers in regard to the paj^ment
of the mortgage (Stuyvesant v.
Hall, 2 Barb. Ch. R. 154 ; Guion
V. Knapp, 6 Paige, 35 ; Howard
Ins. Co. V. Halsey, 4 Seld. 271).
When sufficient is realized by the
sale of one or more parcels to pay
the mortgage debt and costs, the
remaining parcels are of course
discharged of the lien.

It is supposed by the counsel

300

MARSHALLING ASSETS.

for the appellant that it was neces-
sary, in order to secure the appel-
lant this eqnitable right, to make
the mortgagees parties to the suit.
The argument is, that Draper
might, before the appellant could
compel the execution by him of a
deed of the premises embraced in
the contract, and put it on record,
sell the residue of the mortgaged
premises to a bona fide purchaser,
who would have priority over him
in respect to the order of sale of
the premises on the foreclosure of
the mortgage ; that filing a notice
of lis pendens, if the action was
against Draper alone, would not
be notice to subsequent pur-
chasers of that part of the prem-
ises not embraced in the contract ;
and that to make it notice to them,
the mortgagees must also be de-
fendants. This argument is radi-
cally erroneous in the view taken
by it of the operation of the
notice of Us pendens, in case
Draper was the sole defendant.
The notice in that case would be
notice to a purchaser pendente
lite of any portion of the mort-
gaged premises, precisely as the
record of a deed from Draper to
the appellant of the parcel con-
tracted by him, would be notice of
the conveyance. It would be as
much the duty of the purchaser, in
investigating the title of a parcel
he was about to purchase, to look
for a notice of lis pendens in a
litigation involving another par-
cel covered by the mortgage, as to
look for the record of a deed of
the latter parcel. The suit would
involve the right of priority in the
sale of parcels on a foreclosure of

the mortgages, as an incident to
the conveyance, and thus the case
would be within the established
rule, that the filing of a notice of
lis pendens is notice of the bill,
and of the rights of the plaintiff set
forth therein, to all purchasers of
any part of the subject of the liti-
gation pending the action (Parks
V. Jackson, 11 Wend. 442, and
cases there cited ; Stuyvesant v.
^aZZ, 2Barb. Ch. R.160). Uniting
the mortgagees in the action with
Draper as defendants, makes no
difference in regard to the opera-
tion of the notice filed. They had
not the legal title to the premises
mortgaged, and could not convey
them, and subsequent purchasers
from Draper would not be bound
to look for or be chargeable with
notices of lis pendens against the
mortgagees. The filing of such
notices against Draper only would
be notice to such purchasers,
whether the mortsagees were or
were not joined with him in the
action. The only notice required
to secure to the appellant all his
equitable rights would be, that the
appellant had made the contract
with Draper, and was entitled to a
deed under it."

The principle was applied in
another form in Pike v. Goodenow,
12 Allen, 492, Heard mortgaged a
lot of sixty acres to the Massachu-
setts General Hospital. He then
mortgaged the lot to Abigail Mil-
lis, except one acre and ten rods
which he afterwards conveyed to
Steadman, by a deed executed in
1840, but not recorded till August,
1866. In April, 1842, Abigail
Millis purchased the equity of re-

ALDRICH V.COOPER.

301

demption to so much, of premises
as had been mortgaged to her, and
the title descended on her death to
the plaintiff, who, in February,
1865, took an assignment of the
original mortgage to the hospital.
Finally, on the 10th of March, 1865,
Steadman conveyed the one acre
and ten rods to the defendant. It
appeared in evidence that the
plaintiff had paid the interest on the
paramount mortgage for twentj^-
six years without calling on any
other party for contribution. Hoar,
J., said, that on the execution of
the conveyance from Heard to
Steadman, the equity of redemp-
tion under the mortgage to Abigail
Millis, became primarilj' liable to
the paramount encumbrance. Tliis
charge followed the land into her
hands, and when the plaintiff
inherited " her rights and obliga-
tions, the duty of contributing
toward the payment of the original
mortgage stood thus : 1. The
plaintiff' as owner of the equity of
redemption of the second mort-
gage, was first liable for the full
amount. 2. Steadman, as the next
previous grantee, was liable to
make good auy deficiency in the
value of that equity ; and 3. The
plaintiff as owner of the second
mortgage, would be the last to be
called on. If, therefore, the value
of the equity of redemption which
the plaintiff' inherited, was equal
in value to the sum due on the
original mortgage, he was bound
as between himself and the defend-
ant, to pay it ; and having paid and
taken an assignment of it could
not use it as a subsisting means of
compelling the defendant to con-

tribute to a charge which had
virtually been extinguished."

It was immaterial that Stead-
man's deed was not recorded, be-
cause the plaintiff''s deed described
his land as bounded by " land of
Francis Steadman," which agreea-
bly to the decision in George v.
Kent, 1 Allen, 16, was actual no-
tice of Steadman's title," ante, 39.

There was another consideration
tending to the same result. The
plaintiff had paid the interest in
full on the first mortgage for more
than a quarter of a century with-
out requiring Steadman to con-
tribute. After such a lapse of time
by analogy to the statute of limi-
tations, a chancellor would pre-
sume that the sufficiency of the
estate primarily liable, had been
fixed and agreed on between the
parties. The court did not mean
to intimate that the holder of the
original mortgage, having received
the paj'ments of interest exclusively
from the owner of a part of the
equity of redemption for any num-
ber of years, would by that fact
alone be precluded from subject-
ing the whole property which his
mortgage covered to a foreclosure.
His interest being regularly paid
bj' a person in possession of a part
of the land, he would have no rea-
son to know or inquire from whom
it came, or to know what grants of
the estate had been made by the
mortgagor. But between the gran-
tees of the equity of redemption in
separate parcels of the land, it is a
question from the beginning of the
existence of equities, which may be
determined by agreement, or by a
valuationof the property which the

302

MARSHALLING ASSETS.

lapse of time may make difficult of
proof. Hence their conduct in re-
spect to the interest, has a direct
bearing upon the question who is
liable for the payment of the prin-
cipal ; Black River Saving Bank
V. Edwards, 10 Gray, 397.

It is more difficult to apply the
principle where lands are charged
by distinct instruments with the
same debt, and then sold succes-
sively to different persons. Sup-
pose that a mortgage is executed
and a judgment entered on the ac-
companying bond, which becomes
a lien on other land belonging to
the mortgagor, will a purchaser of
the last mentioned land be entitled
to subrogation to the mortgage as
against a subsequent jjurchaser of
the mortgaged premises ? Here
there is nothing to put the second
purchaser on inquiry, or enable him
to discover the prior right of the
first, and it may be contended that
he should not be allected with an
equity which he has no means of
ascertaining. See Green v. Ram-
age, 18 Ohio, 428.

In Oreen v. Ramage, a debtor
mortgaged lot No. 39 to A., and
afterwards gave him a mortgage
on lot 30 as an additional se-
curity. Lot 30 was subsequently
mortgaged to B. and lot 39 to C.
It was held that B. and C. stood on
the same level and were under an
equal obligation to contribute to
the discharge of the paramount in-
cumbrance. A like decision in
Osborne v. Carr, 12 Conn. 195,
was cited and approved in Hunt v.
Mansfield, 31 Conn. 488.

This conclusion is not altogether
satisfactory. One who buys with

an express or implied agreement
for an unincumbered title, is a
surety as it regards a debt which
is a charge on the land, and may as
such be subrogated to the remedies
of the creditor. If the latter holds
two mortgages for the debt, one on
the premises which have been con-
veyed to the purchaser, and one on
other land of the vendor, the pur-
chaser may require that the latter
shall be enforced in the first In-
stance, or assigned to him as a
means of compensation. A sale of
the land bound by the last men-
tioned mortgage to a subsequent
purchaser, gives rise to a similar
equity in his favor, which is valid
as against the vendor. But inas-
much as the ground has been pre-
occupied by the first purchaser,
the case falls within the rule that
as between equal equities the first
must prevail. See Ellison v. Pe-
care, 29 Barb. 333.

Where land which has been sold
successively in parcels, is liable to
a paramount incumbrance in the
inverse order of alienation, the
equity cannot be defeated by pro-
curing a release or assignment
from the incumbrancer, and any
such device will be frustrated by a
court of equity. See Hunt v.
Mansfield, 31 Conn. 488; Loury
V. M'Kenney, 18 P. F. Smith, 294.
In Loury v. M'Kenney, the de-
fendant in a judgment which was
a lien on two tracts belonging to
him, sold one of them to Ballard,
and afterwards conveyed the other
tract to M'Kinney, who obtained
a release of the last mentioned
tract, took an assignment of the
judgment, and levied on the land

ALDRICH V. COOPER.

303

first sold. The court held that
Ballard's land was surety for the
payment of the judgment, and as
the land which had been conveyed
to M'Kinney was of sufficient
value to pay the debt, the transfer
of the judgment to him was an
equitable extinguishment of the
lien.

The doctrine of Clowes v. Dick-
enson is rejected in Kentucky, and
successive purchasers of different
parcels of land, which are subject
to a common incumbrance, held to
be under an obligation to contrib-
ute ratably to the burden ; Burk
V. Ghrisman, 3 B. Monroe, 50 ;
Dickey v. Thompson, 8 Id. 312.

The rule under consideration
grows out of the relation between
the vendor and vendee. It is be-
cause the vendee may throw the
burden of the paramount incum-
brance on the vendor that a subse-
quent purchaser from the vendor
is also bound. The application
of the rule, therefore, depends on
the contract of sale. Where the
vendor conveys with a covenant of
general warranty or against in-
cumbrances, he is manifestly lia-
ble for any lien or charge on the
land. The efi'ect is the same agree-
ably to the authorities in Pennsyl-
vania, where the deed purports to
convey the land, as distinguished
from the right, title and interest of
the vendor; Wolbert v. Lucas, 10
Barr, "73 ; see Cooper v. Bigley, 13
Michigan, 414; 2 Smith's Lead.
Case, 13 7, T ed. There is a mani-^
fest difference where a vendee of
part of the land covered by a mort-
gage agrees in terms, or by a ne-
cessary implication, to be answera-

ble for the whole of the mortgage
debt in consideration of a corre-
sponding deduction from the pur-
chase-money. Under these cir-
cumstances the equity is re-
versed, and the vendor, and
those claiming under him will
be subrogated to the mortgage
against the vendee, and any one
to whom he subsequently convej'S ;
Chapman v. Beardsley, 31 Conn.
115 ; Atwood v. Vincent, It Id.
515; Kilborn v. Bobbins, 8 Allen,
466, 411 ; Welch v. Bears, lb. 151 ;
Engle v. Haines, 1 Halsted's Ch.
181, 632; Caruthers v. Hall, 10
Michigan, 40 ; see Ferris v. Craw-
ford, 2 Denio, 595.

In Chapman v. Beardsley, A.
mortgaged his homestead and an
adjacent lot to secure the payment
of a note. He subsequently sold
the lot to B., in consideration of a
promise on his part to pay the
note. B. subsequently conveyed
the lot to C, informing him of the
promise, and that it had not been
fulfilled; to which C. replied that
as he had not made the promise,
he did not consider himself bound
bj' it. The court held that al-
though the promise did not run
with the land, it was, nevertheless,
obligatory on a purchaser with no-
tice. The lot which had been con-
veyed to C. was, therefore, the pri-
mary fund for the discharge of the
mortgage, and must betaken in ex-
ecution before proceeding against
the residue of the premises in the
hands of the mortgagor, or of a
purchaser from him. The cases
of Engle v. Haines and Caruthers
V. Holt are to the same effect.

In like manner, a purchaser of

304

MARSHALLING ASSETS.

part of a tract covered by a para-
mount incumbrance, ivho gives a
mortgage for the purchase-money,
may be postponed to the extent
of the amount due to a second
purchaser who has paid in full,
and the equity is worked out under
these circumstances by subroga-
ting the second purchaser to the
vendor's lien. See Allen v. Clark,
17 Pick. 41.

There is a third class of cases,
where the vendor conveys his
right title and interest, in
part of the land covered by a
paramount incumbrance, without
a warranty or covenant against
incumbrances ; Aiken v. Cole, 37
New Hampshire, 50 ; Carpenter
V. Koons, 8 Harris, 222 ; Fisher
V. Clyde, 1 W. & S. 544. Here,
the vendor and purchaser stand
on the same footing, and both
must contribute in the ratio of
their respective interests. Hence,
where an equity of redemption is
sold as such in parcels to succes-
sive purchasers, all are alike liable
to the mortgage debt, and not in
the inverse order of alienation.
The principle applies whether the
sale is the act of the mortgagor, or
of the sheriil under an execution ;
Fisher v. Clyde; Carpenter v.
Koons. Nor does it affect the ap-
plication of the principle that the
vendor enters into a collateral
agreement to indemnify the first
purchaser, which is not made
known to the second, or recorded ;
Aiken v. Cole.

In Carpenter v. Koons, two
lots of land were subject to a
common mortgage. The sheriff
sold the equity of redemption in

one of the lots by virtue of an
execution on a judgment against
the mortgagor, and afterwards
sold the equity of redemption in
the other lot under a subsequent
execution on the same judgment
to a different purchaser. It was
held that both purchasers must
contribute equally to the mort-
gage. Black, C. J., said : " A
man who purchases part of a tract
covered by a mortgage, buying the
title out and out, clear of encum-
brances, and paying a full price
for it, has a plain right to insist
that his vendor shall allow the re-
mainder of the mortgaged premi-
ses to be talsen in satisfaction of
the mortgage debt before the part
sold is resorted to. This being
the right of the vendee against
the mortgagor himself, the latter
cannot put the former in a worse
condition by selling the remainder
of the land to another person. The
second purchaser sits in the seat
of his grantor, and must pay the
whole value of what he bought
towards the extinguishment of the
mortgage, before he can call on
the first purchaser to pay any-
thing. The first sale having
thrown the whole burden on the
part reserved, it cannot be thrown
back again by the second sale.
In other words, the second pur-
chaser takes the land he buys sub-
ject to all the liablities under
which the grantor held it. But
if the rule is to cease when the
reason of it ceases ; it cannot ex-
tend to a case where the first sale
was made subject to a mortgage;
and that is the condition of the
present one. The defendant's

ALDRICH V. COOPER.

305

!ed is older than his adversary's,
it it conveys him nothing but
e equity of redemption. The
t of 1830 provides that if the
dest lien be a mortgage, and the
nd' be sold on a judgment, the
lerifT's vendee shall take it sub-
ct to the mortgage. When, there-
re, the defendant made his
irchase, he had manifestly no
aim on the mortgagor or on
lybody else, to pay oflF the whole
ortgage, and relieve him entirely
om what was probably the most
irdensome part of his contract.
is share of the mortgage formed
part of the price he agreed to
ij^ for the land. The statute of
!30 entered into and made one
■ the elements of his contract.
There is a wide and palpable
ft'erenee between one who buys
nd subject to a mortgage, and
IS a reduction in the price equal
i the amount of the lien, and
lother who pays its full value,
id stipulates for a title clear

incumbrances. Such a distinc-
Dn is anj'thing in the world but
' theoretical subtlet}'.' * * *
* Two purchasers at a sheriff's
le, subject to a mortgagfe which

a common incumbrance on the
nd of both, stand on a level,
either of them has done or suf-
red anj'thing which entitles him

a preference over the other,
juality is equity. They must pay
e mortgage in proportion to the
lue of their respective lots."
It results from these authorities,
at the conveyance of part of a
a,ct of land,-with an express or
plied condition that it shall be
bject to a mortgage which cov-
VOL. II. — 20

ers the whole, does not throw the
entire burden on the purchaser,
and he is, on the contrary, enti-
tled to require that the residue of
the land shall contribute in pro-
portion to its value to the dis-
charge of the incumbrance ; Hoy
V. Bramhall, i C. E. Green, "74,
563. In Hoy v. Bramhall, the
grantor was accordingly held to
be under an obligation to con-
tribute, although the grant was by
the terms of the habendum sub-
ject to the payment of all liens.
And when such is the equity as be-
tween the parties, it will follow
the land into the hands of those
who claim under them as pur-
chasers.

It is proper to add, that when
land which is subject to a mort-
gage or other incumbrance, is
sold cotemporaneously in parcels
to different persons, they all stand
on the same footing, and must
contribute ratably to the common
burden ; Brown v. Simmons, 44
New Hampshire, 475, 478 ; Chase
V. Woodbury, 6 Gushing, 143. But
a chancellor will, nevertheless, in
determining the question of pri-
ority, look to the date of the con-
tract, and not of the deed ; James
V. Hubbard, 1 Paige, 228 ; see
Ghampman v. West, 17 New
York, 125.

Marshalling against credi-
tors IN default.

It is an obvious and well estab-
lished principle, that the right of
subrogation to the remedy of
another, implies an obligation on
his part to keep it unimpaired, and
if this duty is violated, the loss
must be borne bv him who is in

306

MARSHALLING ASSETS.

default. The principle runs through
all the various instances in which
a creditor, who has a right of re-
course against two funds or per-
sons, may on obtaining satisfaction
from one of them, be compelled to
use his hold on the other as a
means of indemnity or compensa-
tion to the person whom he has
prejudiced by his choice, ante^ 259,
atT. It may consequently be ap-
plied on behalf of creditors, sure-
sureties, or purchasers.

We have seen that a paramount
creditor who having two funds,
takes that which is the only resort
of a junior creditor, must cede so
much of the other fund as is not
requisite for the satisfaction of the
debt to the junior creditor. It
follows that if he knowingly does
any act rendering such a transfer
nugatory or impracticable, he will
be precluded from proceeding
against the doubly charged fund to
the extent of the resulting injury ;
Olass v. P'ullen, 6 Bush, 346;
Cheesebrough v. Millard, 1 John-
son, Ch. 219, ante. See Kidder v.
Fage, 48 New Hampshire, 380.

The principle may also be applied
for the protection of a surety.
His right of subrogation and the
consequent obligation of the credi-
tor, are well recognized heads of
equity ; Lewis v. Palmer, 28 New
York, 316 ; Burk v. Chrisman, 3
B. Monroe, 59 ; Brewer v. The
Franklin Mills, 42 New Hamp-
shire, 292; Arnotty. Woodburn,Z^
Missouri, 99 ; Sears v. Laforce, 17
Iowa, 413; Storms v. Storms, 3
Bush, 12. He may as soon as the
debt matures file a bill to compel
the creditor to use all the means

at his command for obtaining
satisfaction, ante ; and he will on
paying the debt be substituted in
the place of the creditor, as it re-
gards the contract, and every
remedy or security by which the
fulfilment of the contract can be
enforced, or compensation obtained
for the breach ; Andrews v. Mer-
rett, 58 Maine, 539 ; Bonney \.
Bonney, 29 Iowa, 448 ; Grant v.
Smith, 46 New York, 93; Han-
son V. Crawley, 41 Georgia, 303 ;
Hart V. dowser, 30 Indiana, 219;
Peirce v. Ooldshury, 31 Id. 52;
Huff V. Cole, 44 Id. 300 ; Ghicka-
son Co. V. Pitcher, 36 Iowa, 593 ;
Howard v. Clark, lb. 114; Preston
V. Henning, 6 Bush, 556 ; Bowan
V. The Sharp's Rijie Co., 33 Conn.
Hence, if the creditor varies the
contract, or postpones the time of
payment, or if the remedies or
securities for the debt are lost or
rendered unavailable through his
default or negligence, the surety
may take advantage of it as an
equitable defence ; The Black
Biver Bank v. Page, 44 New York,
453. There is this diflerence, that
while an alteration of the contract
exonerates the surety by substitu-
ting a new obligation for that
which he agreed to fulfil, although
he may not be really prejudiced
by the change; The United Stales
v. Simpson, 2 Penna. 431 ; Smith
V. The United States, 2 Wallace,
233 ; 2 American Lead. Cases, 390,
464, 5 ed., he will not be dis-
charged by the creditor's laches
in the care or management of
collateral remedies or securities,
unless loss ensues, and then only
so far as he is actually damnified;

ALDRICH V. COOPER,

807

^erly v. Rice, 8 Harris, 297 ;
#'s Appeal, 9 W. & S. 36 ; 2
neriean Lead. Cases, 405, 5 ed.

Neff's Appeal, judgment was
tained against a principal and
rety, which took effect as a lien
the principal's land. The prin-
)al subsequently sold part of the
id, and the creditor released the
rchaser in consideration of his
plying the purchase-money in
;isfaction of an antecedent mort-
ge. It was held that as this
rangement enhanced the value

the judgment, it did not dis-
arge the surety.

It results from what has been
id that the equity of a surety
pends on the right of subroga-
)n, and the consequent duty of
creditor to do no act by which
e exercise of that right may be
istrated. It may consequently
ise wherever one is liable in per-
n or estate for a debt which
ight in equity and good con-
ience be discharged by another,
le cases which have been cited
ow that a sale of part of the
Qd covered by an incumbrance,
titles the purchaser to be subro-
ted to the lien as against the
sidue in the hands of the vendor
d those claiming under him. It
lows that the incumbrancer can-
t release the unsold portion,
thout exonerating the portion
lich has been sold, wholly or
0 tanto. It is not a sufficient an-
er that the security is his, and he
ly deal with it as he deems pro-
r, because his right of property
not absolute, but only to use the
n as a means of obtaining pay-
mt, ante; Stevens v. Cooper, 1

Johnson's Ch. 425 ; Taylor v.
Maris, 5 Rawle, 51. "An act," said
Sergeant, J., in the case last cited
" which is perfectly innocent and
legal in itself, may become impro-
per, if the party has notice that
the rights of third persons may be
impaired by it ; as where a covenan-
tor or releasor is apprised before-
hand, that a portion of the land is
bound by a subsequent mortgage
in favor of another person, aud
that if he discharges a different
portion, and reserves his lien
against the part bound by such
mortgage, thus loading it with a
double burden, the claim of the
mortgagee will be sacrificed by his
priority. It is manifest that it is
unfair and inequitable, that he
should voluntarily do an act pro-
ducing these consequences. Sic
utere tuo ut alienum nan Imdas.
Thus in an analogous ease : A
person may buy a legal title free
from all secret trusts, but if he
has notice of a trust, though he
may have paid his money, equity
will make him a trustee for the
party beneficially interested."

It was accordingly held in Ste-
vens V. Cooper, that where several
parcels of land belonging to dif-
ferent owners were covered by
a mortgage, a release of one of
the parcels was a discharge pro
tanto of the others, because the
mortgagee could not be entitled to
throw the whole burden on the
other parcels, nor to deprive the
persons to whom they belonged,
of the right to contribution from
the parcel which had been released.
In like manner, a mortgagee who
releases part of the mortgaged

308

MARSHALLING ASSETS.

premises, with notice that the resi-
due has been sold to a prior pur-
chaser, will thereby discharge the
latter from liability for so much of
the mortgage debt as could have
been made out of the first men-
tioned parcel ; Paxton v. Harrier,
1 Jones, 312 ; Guion v. Knappe, 6
Paige, 43 ; Patty v. Peese, 8 Id. 285 ;
Brown v. Simmons, 46 New Hamp-
shire, 475 ; Garuthers v. Mall, 10
Michigan, 40 ; Mount v. Potts, 8
C. E. Green, 188; Hoy v. Bram-
hall, 4 Id. 74, 565 ; George v.
Wood, 9 Allen, 80 ; Governeur v.
Lynch, 2 Id. 500 ; The Howard
Ins. Co. V. Halsey, 4 Sandford,
565; 4 Selden, 271. It is well
settled under tliese decisions, that
when land which is subject to a
mortgage or judgment is sold suc-
cessively in parcels to different
purchasers, with covenants against
incumbrances, each parcel is liable
in the inverse order of the dates
of the contracts of sale, and if
the lien creditor releases a parcel
from the lien, he will not only dis-
charge that parcel, but also to the
extent of its value, every other,
which having been sold previously,
ought not to be made primarily
liable for the debt ; Mount v. Potts,
8 C. E. Green, 188 ; Teaff v. Ross,
1 Ohio, N. S. 475 ; Johnson v. Rice,
8 Greenleaf, 57.

It follows conversely, that where
one has agreed to satisfy an in-
cumbrance in consideration of a
conveyance of part of the land
covered \>y the lien, the incumbran-
cer cannot release that part without
discharging the part which re-
mains iinconveyed. See Welsh v.
Beers, 8 Allen, 151; Klaproth v.

Dressier, 2 Beasley, 62 ; Gaskill
V. Siner, lb. 400. The principle is
virtually the same where the sec-
ond purchaser is entitled to rank
as the first, in consequence of the
failure to record the prior deed,
ante, 298.

For a like reason, where mort-
gages have been given for the same
debt on two different tracts, and
one of them is sold, the mortga-
gee cannot, after receiving notice
of the equity of the purchaser, re-
lease the other tract without ex-
onerating both. The principle is
the same whether both mortgages
are given wlien the debt is con-
tracted, or one of them subser
quentlj', as a means of inducing
the mortgagee not to proceed
against the land which is conveyed.
See rea#v.iJo«s,l Ohio,N.S.469.

In Teaff v. Ross, Holmes sold
land to Osbom which he had pre-
viously mortgaged to Teaflf, and
gave Teaff' a mortgage on other
land in consideration of an agree-
ment on his part not to prosecute
the first mortgage, if the property
included in the second was ade-
quate to pay the debt. In conse-
quence of Teaff^'s neglecting to
record the second mortgage, it did
not become a lien, and the land
which it should have covered was
swept away under a subsequent
j udgment against Ross. The court
held that the case fell within the
principle of Cheeseborough v. Mil-
lard, and that TeaflT had, by omit-
ting to perfect his title under the
second mortgage, lost the right to
enforce the first against the premi-
ses which Holmes had conveyed to
Osbom.

ALDRICH V. COOPER

309

his decision indicates that
re a release of a tract of land
a a mortgage would exonerate
fcher tract which is collater-
liable, this result will also fol-
from an omission to record the
■tgage by which it is invali-
jd. See Capel v. Butler, 2
ions, 45t ; 2 American Lead,
es, 403, 409, 5 ed. For as the
iry to the part}' interested in the
mentioned tract, is the same
either case, a chancellor may
rd relief in both. See Schroep-
V. Shaw, 3 Comstock, 446,
; 2 American Lead. Cases, 5
408. The obligation of the
ilitor to perfect the lien of a
ateral security by registering
was denied in Hampton v.
}y, 1 M'Cord, Ch. 707, and
mpton V. Brevard, 3 Strobhart,
. 59 ; but these cases cannot
reconciled with the main current
decision in England and the
ited States.

Phe principle was applied in an-
er form in Harker v. Conrad,
S. & R. 301. The plaintiff held
) demands secured respectively
liens on different houses be-
ging to the same person. Hav-
received a general payment
account, which was sufficient to
3harge either lien, but not both
them, he suffered the lien on
! of the houses to expire, and it
} held that he could not prose-
e the lien on the other house
ich had been sold to a third
son. Gribson, J., said, that the
)tor not having Applied the
rment, it was the duty of the
ditor to appropriate it in a way
protect the purchaser.

In like manner, one who having
a set-off which is applicable to
either of two demands, knows
that one of them has be'en assigned,
cannot pay the other without los-
ing the right of set-off against the
assignee ; Berry v. The Church, 1
Maryland, 574. There judgments
were entered on two bonds given
for the purchase-money of land.
The vendor assigned the elder
judgment with notice to the pur-
chaser, who subsequently paid the
junior judgment. The vendor
died insolvent, and the purchaser
having been compelled to satisfy
the widow's claim for dower, asked
to deduct the amount from the
judgment which had been trans-
fered to the assignee. The court
held that if the purchaser knew of
the claim for dower, it should
have been recouped from the judg-
ment which still belonged to the
vendor, and the failure to do so
precluded the right to take advan-
tage of it as against the assignee,
See Lacy v. The East India Co.,
4 Vesey, 833.

It is, nevertheless, clear under
the authorities and on principle,
that the rule in question does not
apply, unless the lien creditor has
notice of the right which is pre-
j udiced by the release. Prima facie
an incumbrancer may discharge
part of the land without losing his
hold on the rest. It is only where
a third person has intervened, and
this is known to the mortgagee or
judgment creditor, that he can be
visited with the injurious conse-
quences of an act which would
otherwise be innocent or laudable
as tending to facilitate a sale, or

310

M ARSH ALIiING ASSETS.

perfect the equity of one who has
already bought ; Taylor v. Maris,
5 Rawle, 51, 56. There is a pre-
sumption ia favor of the continu-
ance of things in the same condition,
and a mortgagee is entitled to sup-
pose that the premises belong to
the mortgagor, until he is defi-
nitely informed to the contrary.
If a sale takes place, it is the duty
of the purchaser to inform the mort-
gagor, and not that of the mort-
gagor to seek out the purchaser.
This is the more true, because the
one knows where to go, while the
other has no such clue ; Taylor
V. Maris, 5 Rawle. 51,56. Notice,
said Sergeant, J., in this case " is
essential. It is not sufficient to
say, that by the release there is a
possibility that injury may result
to some one. Perhaps there is no
exercise of legal right, from
which by possibility a loss may
not result to others in particular
cases. Whoever buys a legal title,
may by possibility do injury by
destroying trusts and equities of
which he is not apprised. In itself,
the act is innocent. It becomes
otherwise when the party knows
that it will occasion a loss to a
third person."

It results from what is here
said, that one who alleges that
the release of one tract or parcel
of laud has discharged another
in which he is interested as a
purchaser, must show that the
sale was known to the mort^gee
when the release was executed ;
and the better opinion is that the
notice should be so far actual, as
to justify the inference that the
incumbrancer acted with a wil-

ful disregard of the purchaser's
equity.

It is well settled under the au-
thorities, that the registration of a
subsequent conveyance of part'of
the premises covered by a mort-
gage, is not notice to the mort-
gagee, and will not preclude him
from releasing the part which re-
mains unsold ; Cooper v. Bigley,
13 Michigan, 463 ; lame's v.
Brown, 11 Id. 23; Hoy v.
Bramhall, 8 C. E. Green, 565 ;
Van Orden v. Johnson, 1 M'Car-
ter, 31'6 ; Taylor v. Maris, 5
Rawle, 51 ; Stuyvesant v. Hone, 1
Sandford, Ch. 419 ; 2 Barbour, Ch.
13T; Blair v. Ward, 2 Stockton,
Ch. 119. In the case last cited,
Sergeant, J., said, "it has been con-
tended that the recording of the
mortgage was constructive notice
to the holder of the antecedent
judgment ; but such an argument
is untenable. Recording a mort-
gage or docketing a judgment,
is notice of the lien to a subse-
quent mortgagee, because it is
incumbent on him to examine
the title before accepting it as a
security. But what has a holder
of a prior lien to do with subse-
quent liens ? If such a rule were
laid down, no one would be safe in
discharging any part of the land of
a mortgagor or judgment debtor,
although the residue might be
more than adequate to satisfy the
debt. If the defendant meant to
gain an equity, he should have no-
tified the plaintiff distinctly of his
position, and cautioned him to do
no act by which the security would
be impaired."

The same view was taken by

ALDRICH V. COOPER.

311

lancellor Kent, in Cheese-
rough y. Millard: "If the judg-
;nt creditor had given notice to
e owners of the first mortgage,
fore the arrangement and dis-
arge took place, of the equity
lich he claimed and expected, I
ight probably have been inclined
have stayed to a certain extent
e operation of the second mort-
ige. But there is no evidence,
)r even ground for presumption,
at either Marvin or Millard, the
vners of the mortgages, knew of
e existence of the judgment
hen the arrangement was made
id carried into effect."
" They were not bound to search
r the judgment, and the record
as not constructive notice to
lem ; and as the rule of substi-
ition rests on the basis of mere
[uity and benevolence, the credi-
)r who has thus disabled himself
om making it, is not to be in-
ired thereby, provided he acted
ithout knowledge of the other's
ght, and with good faith and
3od intention, which is all that
juity in such case requires.
Pothier's Traits des Oblig., No.
30.) ' The other debtors and
ireties,' to adopt the observations
F Pothier, ' might, as well as the
•editor, have taken care of the
ght of hypothecation which he
as lost ; they might summon him
> interrupt at their risk, the third
iirchasers, or to oppose the de-
•ees. It is only in the case in
hich they may have put the
■editor in default, that they can
jmplain that he has lost his hy-
Dthecation.' " It was held in
ke manner in George v. Wood. 9

Allen, 80, that where the purchaser
seeks to enforce his equity against
the mortgagee, " it is reasonable to
require strict proof of notice. He
takes his title with full knowledge
that it is subject to the mortgage ;
and if he does not perfect it by a
release, he ought not to subject
the mortgagee to the constant ne-
cessity of investigating transac-'
tions between the mortgagor and
third persons subsequent to the
mortgagee, or in order to protect
him, when by giving notice he can so
easily protect himself. The estab-
lishing of such mere collateral
equities which do not affect the
legal title, cannot be considered as
within the purpose intended to be
accomplished by the statutes for
registration of deeds."

The doctrine of these cases has
been recognized throughout the
subsequent course of decision; Hoy
V. Bramhall, 4 C. E. Green, 74,
565 ; Caruthers v. Hall, 10 Michi-
gan, 40; James v. Brown, 11 Id.
23 ; Cooper v. Bigley, 13 Id. 463 ;
The La Farge Ins. Co. v. Bell, 22
Barb. 54; although the courts have
sometimes allowed constructive
notice to take the place of the ac-
tual warning required in Cheese-
borough V. Millard ; Reilly v.
Meyer, 1 Beasley, 55, 59 ; Guion
V. Enapp, 6 Paige, 35 ; Palty v.
Pease, 8 Id. 2TT ; Blair y. Ward, 3
Stockton, Ch. 119 ; The Howard
Ins. Co. V. Kelsey, 4 Sandford,
565 ; 4 Selden, 2tl ; Stuyvesant v.
Hone, 1 Sandford, Ch. 419.

In Hoyv. Bramhall the court held
that knowledge that the mort-
gagor had disposed of some part
of the land, rendered it incumbent

312

MARSHALLING ASSETS.

on the mortgagee to ascertain what
that part was, before executing a
release which might prejudice the
purchaser, while in The Howard
Ins. Go. V. Kelsey, 4 Sandford,
565; 4 Selden, 271, an inference
of notice was drawn from a recital
in the release itself, ante, 191.

It is well settled that the right
of subrogation does not exist as be-
tween principal debtors. See
J^aily V. Brownfield, 8 Harris, 41 ;
Moganv. Beynolds, 21 Alabama, 56.
Hence a creditor may return a se-
curity to one of several co-con-
tractors, or release a judgment
which he has obtained against him,
without discharging the others ;
and it is immaterial that they are
in fact sureties, unless this is com-
municated to the creditor. See 2
American Lead. Cases, 45 T. A
different view taken in Holt v.
Body, 6 Harris, 207 ; seems to
have arisen from a misapprehen-
sion of the rule.

A debtor who gives a collateral
security, is so far in the position
of a surety that he is entitled
to a return of the security on
satisfying the debt. The creditor
is, therefore, responsible for the
preservation of the property
which has been entrusted to his
care. He need not collect the se-
curity by suit, or convert it into
money by a sale, unless he is ex-
pressly required to do so by the
debtor ; Ormsby v. Fortune, 16
S. & R. 302 ; Schroeppel v. Shaw,
3 Comstock, 446; but he is an-
swerable for any act or omission
by which the security is impaired,
or rendered unavailable as a
means of payment. It follows

that while an 'allegation that the
creditor has an adequate security,
is not a defence; Lord v. The
Ocean Bank, 8 Harris, 384 ; The
Bank of the United Slates v. Pea-
body, lb. 454, 458 ; it is, neverthe-
less, incumbent on him to render
an account ; and a failure on his
part to surrender the security, or
account for its non-production, in
response to a demand to that ef-
fect accompanied by a tender of
the amount due, is a sufficient
cause for deducting the value of
the security from the debt, or for
the grant of an injunction to stay
proceedings, if the case has gone to
judgment ; The Bank of the United
States V. Peabody ; Spalding v.
The Bank, 9 Barr, 28. It has,
nevertheless, been held in various
instances, that a transfer of the
note or bond of a third person as
a collateral security, renders it
incumbent on the creditor to pro-
ceed within a reasonable time to
enforce the payment of the instru-
ment by suit, and that any loss
which may result from his default
in this respect, will be an equitable
extinguishment of the debt ; Sul-
livan V. Morrow, 4 Indiana, 42.
See Muirhead v. Kirkpatrick,
9 Harris, 237, 241 ; Lawrence
V. M'Galmont, 2 Howard, 426,
454; Bailey v. Clark, 1 Cranch,
181, 193 ; Spalding v. The Bank,
9 Barr, 229; Hx parte Mure, 1
Coxe, 63; Williams v. Price, 1
Simons & Stuart, 581. In Lyon
V. The Huntingdon Bank, 12 S.
& R. 67, a failure to proceed to
execution on a judgment which
had been confessed by the maker
of a note, until he became iusol-

ALDEICH V. COOPER.

313

ent, was held to discharge the in-
lorser. It was determined in like
aanner, in Sullivan v. Morrow,
hat the creditor is chargeable on
.ccount with any loss which may
nsue from his laches in not pro-
eeding to judgment or execution
m the securities placed in his
lands as collateral. See Doug-
assy. Reynolds, 12 Peters, 491.

A similar doctrine may be found
n Williams v. Price, 1 Simons &
Stuart, 581 ; and Ex parte Mure, 2
3oxe, 63. In the case last cited, a
lebtor assigned a bond, and war-
rant of attorney from a third per-
;on to confess judgment, to his
sreditor, who omitted to enter up
.he judgment for five months, dur-
ng which time the obligor became
nsolvent, and the debt was lost.
The Lord Chancellor said, " I am
)f opinion that whoever takes a
)ond in the manner this was taken,
nakes it his own, to the effect of
jinding himself to make it availa-
ile as far as he can by ordinary
liligence. Generally speaking tliat
(rhich would be negligence in one
smployed to make the bond availa-
)le, must be so in one who has
;aken upon himself to make it ap-
plicable in payment of the debt of
;he assignor, and who is invested
vith complete authority for that
purpose."

In like manner, a failure to
•ecord a mortgage which has been
•eceived as a collateral security,
rendering it inoperative as a lien,
nay exonerate the debtor to the
ixtent of the ensuing loss ; See
Oapel V. Butler, 2 Simons, 451 ;
Teaff V. JRoss, 1 Ohio, N. S. 469,
mte, 308. The latter point has not-

withstanding been determined the
other way in South Carolina, on
the ground that a creditor is not
under an obligation to use active
diligence ; Hampton v. Levy, 1
McCord, Ch. 107 ; Laing v. Bre-
vard, 3 Strobhart's, Eq. 59.

There can be no doubt that a
creditor who in receiving a security,
agrees to collect it by suit, is re-
sponsible for the non-fulfilment of
his engagement. See Sellers v.
Jones, 10 Harris, 425 ; Kiser v.
Ruddick, 8 Blackford, 382. But the
better opinion would seem to be
that such an agi'eemeut should not
be implied from the mere fact of
accepting a note, bond, or other
collateral security for an existing
obligation ; Ormsby v. Fortune ;
Schroepple v. Shaw, 3 Comstock,
446; Trotter v. Crockett, 2 Por-
ter, 401 ; Sellers v. Jones, 10
Harris, 425. The obligation of
the creditor to use active dili-
gence in the collection of a col-
lateral security, was accordingly
denied in Schroeppel v. Shaw ;
and it was said that he may re-
main passive until quickened into
diligence by the request of the
debtor.

Whatever may be thought on
this head, it is clear that one who
receives a note or bill as security,
or in conditional payment, must
take the requisite steps to fix the
drawer and indorsers, or submit to
any loss that may ensue from the
default. See Russell v. Hester, 10
Alabama, 536 ; Trotter v. Crockett,
2 Porter, 401. But there is some
doubt under the authorities,
whether the burden of proof is on
the debtor, to show that such a

314

MARSHALLING ASSETS,

default has resulted in the loss of
the debt, or on the creditor, to
adduce evidence that the parties
to the instrument were insolvent,
and that nothing would have been
gained by diligence ; Lawrence v.
Jf ' Galmont, 2 Howard ; 2 Ameri-
can Leading Cases, 288, 5 ed.

It need hardly be said that
wherever the neglect of the credi-
tor in the management of a col-
lateral securitj' will discharge the
principal debtor, it will also dis-
charge one who is secondarily
liable for the debt ; Gapel v.
Butler, 2 Simons & Stuart, 45T.

It has been declared in numer-
ous instances that a creditor who
has two funds open to him, may be
required to proceed in the first in-
stance against that which is beyond
the reach of another creditor, who
has but a single means of payment ;
The Mechanics' Bank v. Edwards,
1 Barbour, S. C. R. 2^1; Besley
V. Lawrence, 11 Paige, 581 ; James
v. Buhbard, 1 Id. 228; Pratt v. St.
Glair's Heirs, 6 Ohio, 22'7 ; Clark
V. Pullen, 6 Bush, 346 ; Hurd v.
Eaton, 28 Illinois, 122 ; Wurtz v.
Hart, 13 Iowa, 15 ; Wright v.
Tustin, 56 Barb. 56 ; Glomes v.
Dickenson, 9 Cowe-n, 403 ; Fallen
V. The Bank, 1 Freeman, 419; 8
Smedes & Marshall, 35 T ; Baine
V. Williams, 10 Id. 113; Thomp-
son V. Murray, 2 Hill, Ch. 204,
213; Henshaw v. Wells, 9 Hum-
phreys, 568 ; The Insurance Go.
V. Woodruff, 2 Dutcher, 541, 558.
Such an exercise of the power of a
chancellor is obviously extreme,
and can only be justified where
irreparable injury would result
from suffering the law to take its

course. It is conceded that the
creditor cannot be shut out from a
doubly charged fund, and com-
pelled to resort to another remedy,
unless the latter is adequate in all
respects to satisfy the debt, ante;
Eoertson v. Booth, 19 Johnson, 496;
Ramsey's Appeal, 2 Watts, 228,
232. Where such is the case, the
ends of justice may be attained by
subrogation. Where it is not, one
who has been diligent or fortunate
enough to secure a hold on two
funds, should not be deprived of
that which is the only prompt and
certain means of payment. Wright
V. Simpson, 6 Vesey, 114, 736;
Post V. Mackall, 5 Bland. 484 ;
Jarvis v. Smith, 1 Abbott, 21T ;
Moore v. Wright, 14 South Caro-
lina, 134. The case of The New
York Steamboat Go. v. New Jersey
Ferry Go., 1 Hopkins, 460, which
seems to contravene this rule;
was decided by a subordinate
tribunal, and can hardly be re-
garded as an authoritative exposi-
tion of the law.

The courts of Pennsylvania have
accordingly been constant in main-
taining that a creditor should not
be hindered or delayed in the col-
lection of the debt, for the sake of
leaving the way open to another
creditor, whose lien did not attach
till afterwards, and who, therefore,
has no equity to be first in being
paid ; Evans v. Duncan, 4 Watts,
24.

In Eoans v. Duncan, land which
had been devised, was sold after
the testator's death under a judg-
ment and execution against him,
and the proceeds paid intp court.
It was contended on behalf of the

ALDRIOH V. COOPER.

315

lien creditors of the devisee, that
as the testator had specifically
charged other land with the pay-
ment of his debts, the judgment
creditor should proceed against
that, and leave the fund in court
free for the payment of their de-
mands, Kennedy, J., said : " It
is alleged that the court below-
erred in not appropriating the
money to the payment of the debts
owing to the creditors of Stephen
Duncan, which had become liens
upon the land before it was sold.
This is contended for on the
ground that Thomas Duncan, by
his will, after devising the land
from which the money has been
raised, to his son Stephen Duncan,
in fee, has appropriated other lands
and funds for the payment of his
debts ; and that although the credi-
tors of Thomas Duncan, in seek-
ing payment of their debts, are not
confined or restricted exclusively
to look to the funds and property
which he has set apart for that
purpose in his will ; yet having
them and the residue of his estate
all bound for the payment of their
debts, equity will compel them, as
they have two funds, to resort to
that fund which will enable the
creditors of Stephen Duncan to
have their debts paid also. But
the creditors of Thomas Duncan,
having the elder claim upon the
fund in the court below, and being
entitled to be paid immediately out
of it, cannot be delayed, but have
a right to be preferred, unless some
good reason, consistent with the
principles of justice as well as
equity, can be given why it should
not be so. It may be very advan-

tageous and all-important to them
to receive their money with as lit-
tle delay as possible ; and being
entitled to have received their
debts long since, if they could have
got them, it would, therefore, be
contrary to both law and equity to
pass a decree that would in its
effect delay them in the receipt
thereof a single minute longer
than is indispensably necessary for
a final determination of the con-
troversy. The law considers it
fraudulent to hinder or delay credi-
tors in receiving their just debts
after they have become payable.
But it is self-evident, that to de-
cree the money in court to the
creditors of Stephen Duncan,
would inevitably delay the credi-
tors of Thomas Duncan, in the
receipt of their debts, to a future
period almost unknown. It would
necessarily postpone the payment
of them until money for that pur-
pose could be raised from the sale
of otlier lands, which might re-
quire considerable time, perhaps
years, to accomplish it." The
question was again considered in
Neff's Appeal, 9 W. & S. 36.
Judgment had been obtained
against a principal and surety,
which bound the real estate of
both. The surety's land was sold,
and it was contended that the pro-
ceeds should be appropriated to
the payment of a younger judg-
ment, and the senior judgment
creditor compelled to resort to
the principal's land, which was
proved to be adequate to satisfy
the debt. Kennedy, J., said, that if
both estates had been sold and
were in the hands of the sheriff for

316

MARSHALLING ASSETS.

distribution, it would be just to
pay the elder judgment out of the
fund which the subsequent incum-
brancer could not reach. Such was
not the case. Several months
must elapse before payment could
be obtained from the principal's
estate, and there was no justice in
requiring a creditor to submit to
such a delay, because he had a
double remedy. A decree of sub-
rogation would accomplish all that
the younger creditor was entitled
to ask for, and all that a chancellor
could equitably grant.

So, in Itamsey^s Appeal, 2 "Watts,
220, a bank which had a lien on
its own stock for money lent,
was held to be entitled to the fund
arising from a sale of the real es-
tate of the borrower's land ; and
the relief afforded to his prior
judgment creditors was by subro-
gating them to the lien on the
stock. The case of Dunlap v.
Clemants, *l Alabama, 539, is sub-
stantially to the same effect.

It was said in like manner, in
Post V. Mackall, 3 Bland, 484, 511 :
" Great care must be taken," " in
making such an arrangement, not
to lessen or impair, in any manner
whatever, the obligation of the
creditor's contract. It can only
be made where all the parties are
before the court, and the whole
subject is within its jurisdiction ;
and when it is clear, that the credi-
tor can sustain no loss, nor be in
any way delayed, or have his claim
subjected to any additional peril.
For if the parties have not been all
brought before the court ; or if
they cannot be brought before it ;
because of their not having anj''

such privity of interest as will
warrant the making of them parties
to the same suit ; or if the funds
cannot be embraced within the
scope of the same suit ; and much
more so, if they be not both of
them within the jurisdiction of the
court, it would be utterly imprac-
ticable to make any such arrange-
ment in favor of any one set of
creditors against another, the se-
curity of whose claim may be thus
greatly endangered, and the satis-
faction of it necessarily delayed."
It was accordingly determined that
a creditor could not be enjoined
from enforcing a mortgage to the
exclusion of a junior lien on the
ground of his holding another
mortgage for the debt on property
beyond the jurisdiction of the
court. So in Oray v. Carmon, 3
Iredell, Eq., the court held that, if
there be any case where the credi-
tor will be compelled to look to the
collateral securities which he has
received from the creditor, before
proceeding against the surety, it is
when these afford a remedy not
less plain, direct and certain than
that which he is compelled to
forego. See Gary v. Bignut, 32
Maryland, 552.

It is well settled, in conformity
with these decisions, that when
there is no special equity, a creditor
will not be controlled in the selection
of his remedies, at the instance of a
junior claimant, although he will
be held rigorously to the duty of
preserving them intact for the pro-
tection of the party whom he dis-
appoints by his election ; Fowler v.
Barksdale, 1 Harper, Ch. 164 ;
Jones V. Zollickoffer, 2 Hawkes

ALDRICH V. COOPBK.

317

623; Briggs v. The Planters'
Bank, Freeman, Ch. 574 ; Mark-
ham V. Calvert, 5 Howard, Miss.
R. 421 ; Mix v. Hotchkiss, 14
Conn. 32 ; Boub v. Barnes, 4 Gill,
1 ; Meigle v. Letter, 8 Maryland,
405 ; The Mechanics' Association
V. Conover, 1 M 'Carter, 219;
Morrison v. Kurtz, 15 Illinois,
193 ; The U. S. v. Duncan, 12 Id.
523 ; Emmons v. Bradley, 56
Maine, 333 ; Cornish v. Wilson,
6 Gill, 299; G«6son v. M'Cor-
mick, 10 Gill & J. 101.

For an analogous reason it is not
a defence to a suit against a surety,
that the creditor has a lien on the
real estate of the principal, which
affords an adequate means of sat-
isfaction, or that the creditor is in
possession of collateral securities
which might be rendered available
for that purpose ; Kirkman v. The
Bank of America, 2 Coldwell, 397.
The Ins. Co. v. Smith, 1 Jones,
Penna. 120 ; Hawks v. Geddis, 16
S. & R. 123 ; 1 Watts. 280 ; Gary
V. Hignutt, 32 Maryland, 552, 559.
This is the more obvious, because
the surety may file a bill to enforce
the payment of the debt as soon as
it matures, and be subrogated to
all the creditor's remedies as a
means for the attainment of that
object. See Irick v. Black, 2 C.
E. Green, 109 ; 2 American Lead.
Cases, 5 ed. 412, pos< notes to Rees
v. Berrington. And one who, in-
stead of adopting this course,
waits until execution is about to
go against himself, comes too late
with an application which should
have been made at an earlier
period.

There is nothing in these de-

cisions to preclude a court from
so regulating its process as to do
justice among all the parties whose
interests are at stake. A creditor
who has a paramount lien on prop-
erty belonging to several persons,
or in which several persons are
concerned, and may proceed forth-
with to execution against any
part, should sell that first which is
primarily liable. Such a fund is
as much under legal control as if
it were in court, and the process
should be so moulded as to avoid
circuity, and spare him whose lia-
bility is secondary the sacrifice in-
cident to a forced sale. See Wat-
son V. Bain, 1 Maryland, 117. The
sheriff may consequently be di-
rected not to sell land which the
defendant in the judgment has
conveyed, unless that which he
retains does not produce enough
to satisfy the debt, or the court
may direct that land which has
been conveyed successively in par-
cels to different purchasers, shall be
sold in the inverse order of aliena-
tion; Mevey's Appeal, 4 Barr,
80 ; James v. Hubbard, 1 Page.
So a creditor who has judgment,
and can proceed forthwith to take
the principal's estate in execution,
may be restrained from seizing
the surety's goods or land, until
the principal's propert3' is disposed
of and proves inadequate to pay
the debt ; and this course will be
unhesitatingly adopted where there
is a collusive attempt to exonerate
the principal at the surety's ex-
pense ; Irick v. Black, 2 C. E.
Green, 109. Under these circum-
stances, there is no hinderance or
delay, and the creditor is merely

818

MARSHALL I Na ASSETS.

required to throw the burden in
the first instance where it should
ultimately rest. See Halsey v.
Beed, 9 Paige, 446 ; Besby v.
Lawrence, 11 Id. 501 ; Goulburn
V. Stevens, 1 Maryland Ch. 420 ;
Wright v. Atkinson, 3 Sneed. 185.

In Irick v. Black, a joint judg-
ment was obtained against a prin-
cipal and surety, and a levy made
on the principal debtor's goods.
His father then took an assign-
ment of the judgment, and di-
rected the sheriff to stay the pro-
ceedings against him, and make
the money out of the property of
the surety. The latter applied to
the Court of Chancery for an in-
junction, which was granted, on the
ground that there had been a con-
certed effort to control the course
of the law to the surety's prejudice.

In like manner, where land be-
longing to husband and wife, which
had been mortgaged for the hus-
band's debt, was sold, and the pro-
ceeds brought into court for distri-
bution, the husband's share of the
fund was appropriated to the pay-
ment of the mortgage, and the
balance awarded to the wife ; Var-
tie V. Underwood, 18 Barb. 56.

The argument in favor of con-
fining a creditor in the first in-
stance to the fund which is pri-
marily liable to the debt, is much
stronger than it can well be for
enjoining a paramount incum-
brancer at the instance of one
who holds a junior lien. If the
land of a surety is taken in execu-
tion, he may be compelled to seek
I'edress through an execution
against the principal. Hence,
two forced sales instead of one.

Moreover, the injury incident to
the loss of land does not always
admit of a pecuniary compensa-
tion.

Another reason for protecting
a secondary fund by injunction,
is to avoid circuity of action.
A court of equity will not permit
a vendor who has obtained an
assignment of a paramount mort-
gage to enforce it against the
vendee, where the latter would be
entitled to recover the amount in
assumpsit, or on the covenants in
his deed. See Tice v. Annin, 2
Johnson, Ch. 128; Beyer v.
Pruyer, 1 Paige, 465 ; Stevenson
V. Black, Saxton, 338 ; ante, 284,
294. For alike reason where a prin-
cipal debtor succeeds on the credi-
tor's decease to his estate as a lega-
tee or under the statute of distribu-
tions, a chancellor may enjoin the
administrator from proceeding to
execution against the surety ;
Wright v. Austin, 55 Barb. 13.

It is universally conceded that
the burden is on him who would
confine a creditor to a particular
fund or remedy to show that
it affords a sure, prompt and ade-
quate means of payment ; Wright
V. Simpson, 6 Vesey, 714; Wool-
cocks V. Hart, 1 Paige, 185 ; Eo-
ertson v. Booth, Johnson, Ch. 19 ;
Johnson, 486 ; and in the case last
cited, the court of appeals reversed
the decree of the chancellor on the
ground that this did not suffi-
ciently appear from the proofs.
" I yield," said Spencer, J., " my
entire assent to the proposition,
that where a party has two funds
out of which he can satisfy his
debt, and another creditor has a

ALDRICH V. COOPER.

319

lien, posterior in point of time, on
one of the funds only, the first
creditor will, in equity, be com-
pelled to resort to that fund which
the j unior creditor cannot touch, in
order that the junior creditor may
avail himself of his own security,
■where it can be done without in-
justice or injury to the debtor or
creditor. This principle, which is
so equitable and just, was thus
illustrated by Lord Hardwicke, in
Lanoy v. The Duke and Duchess
o/Athol, 2 Atkins, 446. ' Suppose,'
he said, ' a person who has two
real estates, mortgages both to one
person, and afterwards, only one
estate to a second mortgagee, the
court, in order to relieve the sec-
ond mortgagee, have directed the
first to take his satisfaction out of
that estate only which is not in-
cluded in the mortgage to the sec-
ond mortgagee, if that is sufficient
to satisfy the first mortgage, in
order to make room for the second
mortgagee.' The same principle
was adopted in Wright v. Nutt, 1
H. Bl. 150, and in Hays v. Ward,
4 Johns. Ch. Rep. 132, and in sev-
eral other cases. But a court of
equity will take care not to give
the junior creditor this relief, if it
will endanger thereby the prior
creditor, or in the least impair his
prior right to raise his debt out of
both funds. The utmost that
equity enjoins in such a case is,
that the creditor who has a prior
right to two funds, shall first ex-
haust that to which the junior
creditor cannot resort ; but where
there exists any doubt of the sufll-
ciency of that fund, or even where
the prior creditor is not willing to

run the hazard of getting payment
out of that fund, I know of no
principle of equity which can take
from him any part of his security
until he is completely satisfied."

So, in Brinkerhoff v. Marvin^
5 Johnson, Ch. 320, it was said to
be a sufficient answer to a bill by
a subsequent judgment creditor,
to compel the holder of a prior
judgment to exhaust a bond and
mortgage which had been trans-
ferred to him as security for the
judgment debt, that the right un-
der the mortgage was disputed,
and that it would not be equitable
to detain the respondents from
their remedy on the judgment,
until they had entered upon and
concluded a litigation which was
confessedly doubtful, and might
be protracted.

The doctrine that one who has
two funds open to him shall not
take that which is the sole depen-
dence of another, was invoked in
Wright v. Nutt, 1 H. Bl. 126 ; 3
Brown, Ch. Cas. 326, on behalf of
an exile, whose property had been
confiscated by the country whence
he had fled, and was alleged to be
accessible to his creditors, though
not to himself. It had been held,
as far back as Holditch v. Mist, 1
Peere Williams, 695, that an act of
Parliament divesting the estate of
a South Sea director, and placing
it in the hands of trustees for the
payment of his debts, did not
render it incumbent on a creditor
to have recourse to the fund thus
set apart, or warrant an injunction
to restrain him from proceeding to
judgment in the ordinary course
of law. The point arose sixty

820

MARSHALLING ASSETS,

years afterwards, in Wright v.
Nutt, under peculiar circumstan-
ces. The estate of Sir James
Wright, an American loyalist, was
confiscated by the State of Georgia,
and vested in commissioners for
the use of the State, subject to the
payment of such debts as he might
owe to any persons well affected
to the independence of the United
States, who should prove their
claims within twelve months. His
American creditors followed him
to England, and one of them,
Charles Pinknej', brought a suit
which went to judgment. Wright
died, and his executors filed a bill
against Pinkney, alleging that if
he had not obtained satisfaction
out of the confiscated effects in
Georgia, it was through his own
wilful default, and that it was in-
cumbent on him to resort to that
fund, especially as it was entirely
beyond the reach of Sir James
Wright, in his lifetime, and of the
complainants since his death. The
bill, therefore, prayed that the re-
spondent might deliver up the
note on which he had sued for
cancellation, or that he might be
directed to have recourse in the
first instance to the fund which was
open to him in the United States.
The answer averred that the respon-
dent attempted to prove the debt
before the commissioners in Geor-
gia, and that they disallowed the
claim.

Lord Thurlow held, that a credi-
tor who, having the power to ob-
tain payment out of a particular
fund, pursued the debtor, might
be enjoined, especially if it was
from the circumstances of the

case impossible for him to assign
the fund to the debtor, or collect
it for his use. To make the prin-
ciple effectual in the case before
the court, it must be shown that
the confiscated estate was not only
of a greater value than the de-
mand in suit, but than all the de-
mands against the estate; for, if
it turned out to be a defective
fund, incapable of satisfying the
debt but in part, it would, at the
most, be a discharge pro tanto. It
must also appear that the fund
was still available ; or, if it was
not, that it was owing to the de-
fendant's want of diligence. In
Foliolt V. Ogden, 1 H. Bl. 123,
Lord Loughborough held, that
such a defence was not maintaina-
ble at law, but expressed his en-
tire concurrence with the princi-
ples advanced in Wright v. Nutt,
as affording a good ground for the
intervention of a chancellor.

When, however, the question
arose in Wright v. Simpson, 6
Vesey, 114, Wright v. Nutt, was
virtually overruled, and the court
reverted to the doctrine of Soul-
ditch V. Mist. Lord Eldon said,
that the fund in the State of
Georgia might be likened to a
pledge or collateral security.
Were it a pledge given by the
debtor and accepted by the credi-
tor, there would still be great dif-
ficulty in maintaining that the ex-
clusion of the debtor through the
fortune of war from re-entering
on his property in America, could
preclude the right to charge him
personally in England. It was
not a pledge, but a fund that had
been thrown on the creditor by an

ALDR-ICH V. COOPER.

321

act not his own, and the debtor
had, therefore, less cause for re-
quiring the creditor to suspend
the right of suit until he had
made the most of the fund. If
the case was likened to that of
principal and surety, it had never
been supposed that the creditor
was under an obligation to use ac-
tive diligence against the principal.
A surety is a guarantor, and it is
his business to see that the prin-
cipal pays, and not the creditor.
On giving an indemnity against
the risk, delay and expense, the
surety might call on the creditor
to do the best that he could for
his benefit, and might require him
to prove under a commission in
bankruptcy. Another argument
was, that the creditor's inability
to assign the fund, rendered it in-
cumbent on him to have recourse
to it in the first insance. Such an
equity might be enforced under
the head of marshalling assets, if
not at the instance of the debtor,
in cases growing out of his acts,
and where he would be indirectlj^
benefited. But the authorities did
not warrant the inference, that one
who had taken a personal security
could be compelled to suspend his
remedy on it, and have recourse to
another fund, which he had not ac-
cepted as a pledge.

The chancellor was not, there-
fore, prepared to accede to the
doctrine of Wright v. Nutt ; but if
the principles laid down in that
judgment were sound, the evidence
did not bring the case within those
principles. It did not appear that
the creditor had the clear means of
making the fund in Georgia avail-
VOL. II 21

able for the payment of the debt,
or that he had committed any wil-
ful default. The bill would, conse-
quently be dismissed.' See if' Gall
V. Hinckley, 9 Vermont, 143 ;
Cohen V. The Commissioners of
the Sinking Fund, *l Smedes &
Marshall, 165 ; 2 American Lead.
Cases, 407, 5 ed.

Notwithstanding some partial
differences, the general rule is well
defined. A creditor who has two
funds will not be postponed at the
instance of another who has but
one, unless it appears that the
fund to which he is referred can
be reached without litigation, de-
lay, or expense, nor unless it is
beyond all question adequate to
meet the debt. It is a condition
of such relief, that the remedy
which is left open to the senior
creditor shall be as certain, prompt
and efficient as that which he is
compelled to forego ; Evertson v.
Booth ; Foioler v. Barksdale, Har-
per's Eq. 165 ; Goodwin v. The
State Bank, 4 Dessaussure, 393 ;
Oadberry v. M'Clure, 4 Strob-
hart Eq. 1*18; Felder y. Murphy,
2 Richardson Eq. 58 ; Moore v.
Wright, 14 Id. "134 ; Jar vis v. Smith,
1 Abbott, 217; Walker v. Coouer, 2
S. Carolina, 16 ; Vanmeter v. Fly,
1 Beasley, 212; Kidder v. Page,
48 N. Hamp. 380. The burden of
establishing this is on the creditor
who asks to have the assets mar-
shalled, and he must not only show
that he will suffer if the injunction
is refused, but that granting it
will not prejudice or hinder one
whose right is older, and therefore
better than his own. Were the
rule otherwise, the diligence which '

322

MARSHALLING ASSETS.

secures two securities, might em-
barrass or defeat, instead of accel-
erating, tiie collection of the debt.
It follows, that a creditor who is
not in default, will not be excluded
from a fund within the jurisdiction
of the court, and compelled to re-
sort to another in a diflferent State
or country ; Wright v. Simpaon, 6
Vesey, 714 ; Durham v. Williams,
39 Georgia, 312; although he may
well be put on terms, and required
to execute an assignment of the
more distant fund as a means of
indemnifying the creditor whom
he disappoints by taking that
which is close at hand.

It is well settled that the receipt
of a collateral security does not
preclude the right to proceed to
judgment and execution against
the debtor, and his insolvency will
not vary the rule, or authorize a
chancellor to enjoin the creditor.
The case is not necessarily the
same when the fund is in the
hands of a court of equity,
and effect may then be given to
the principle that equality is
equity. It is, nevertheless, estab-
lished, that in the distribution of
legal assets, equity follows the
law, and enforces legal rights and
priorities ; Butledge v. Hazlehurst,
1 M'Cord Ch. 466; M'Candlish
V. Keene, 13 Grattan, 61ff, 634;
post, notes to Silk v. Prime ;
and legal assets do not lose
their character or become merely
equitable on the decease of the
debtor, or the assignment of his
estate for the benefit of his credi-
tors. Hence, a creditor may re-
ceive a dividend on the whole
amount of the debt, from an insol-

vent estate in the hands of an ad-
ministrator or assignee, without
surrendering his collateral securi-
ties, although he is only entitled
to satisfaction, and must account
for any surplus that may remain
after the debt is paid. Such, at
least, seems to be the rule in Eng-
land, and it is generally followed
in the United States ; Findlay v.
Hosmer, 2 Conn. 530 ; West v.
The Bank of Rutland, 19 Yer-
mont, 403 ; Putnam v. Russell, IT
Id. 1.54 ; Cornish v. Wilson, 6
Gill, 303 ; Clarke v. Henshaw, 30
Indiana, 144 ; Logan v. Anderson,
18 B. Monroe, 114; ante, 258.

A different rule prevails in bank-
ruptcy, where the creditor may
either surrender his securities, and
prove the whole amount of the
debt, or receive a dividend on so
much of the debt as is not paid
from the proceeds of the securi-
ties, but cannot resort to both
funds as a means of being paid
in full. See Ex parte Farns-
worth, 1 Lowell, 49t ; Wallace v.
Conrad, 3 Brewster, 329 ; 1 Phila-
delphia, 114 ; In the matter of
Bigelow, 2 Benedict, 480. If a
creditor having a judgment against
a bankrupt, which is a lien upon
his real estate, proves the debt,
and comes in on the bankrupt's
estate for the whole, the assignee
is entitled to be subrogated to the
lien of the judgment on the land ;
Wallace v. Conrad, supra; see
Cook V. Farrington, 104 Mass. 212.
This conclusion results from the
provisions of the Bankrupt Act,
and does not afford an analogy for
cases not within the statute. It
is, nevertheless, adopted in Mas-

ALDRICH V. COOPER.

g23

sachusetts and Iowa, in the dis-
tribution of the assets of insolvent
estates by assignees or adminis-
trators; Amory v. Francis, 48
Mass. 368; Foreman v. Boutelle,
13 Metealf, 159 ; Wurtz v. Hart,
13 Iowa, 515. The same view
was taken in Bell v. Fleming, 1
Beasley, 13,499; but the question
did not arise, and the point deter-
mined was, that proving the debt
does not necessarily preclude the
right to enforce the security. See
Cook V. Farrington.

Marshalling in aid of lega-
tees.

It is well settled, that the per-
sonal estate of a decedent is the
primary fund for the payment of
his debts ; Howes v. Dehon, 3
Gray, 205 ; Clarke v. Henshaw, 30
Indiana, 144 ; Marsh v. Marsh,
10 B. Monroe, 360 ; Glinefelter v.
Ayres, 14 Illinois, 329 ; Kelsey v.
Western, 2 Comstoek, 500 ; Gibson
V. M' Cormick, 10 Gill & Johnson,
65 ; Hoye v. Brewer, 3 Gill & J.
153; Wyse v. Smith, 4 Id. 296;
Rogers v. Rogers, 1 Paige, 188 ;
Holman's Appeal, 12 Harris, IH.
See notes to Ancaster v. Mayer,
vol. 1, 91 1. The rule applies, al-
though the debts are a charge on
the land. This is equallj' true,
whether the charge is created dur-
ing the life of the debtor, or im-
posed by his will, and would result
on principle were it not established
under the authorities. A debt
does not cease to be a personal lia-
bility or become a primary charge
on the land, on passing into judg-
ment ; Rag rs v. Rogers, 1 Paige,
183, 194; Stevens v. Gregg, 10
Gill & J. 143; nor is a bond or

promissory note less the princi-
pal obligation because it is secured
by a mortgage ; Dandridge \.
Minge, 4 Randolph, 397 ; Gould
V. Winthrop, 5 Rhode Island,
319 ; Bradford -v. Forbes, 9 Allen,
365; Plimpton v. Fuller, 11 Id.
139 ; Thomas v. Thomas, 2 Green,
366; Hoff's Appeal, 12 Harris,
200, 204 ; ManseU's Estate, 1 Par-
sons' Eq. 369. So a testamentary
charge of debts, or a direction
that the land shall be sold for the
payment of debts, does not render
it the primary fund, and merely
gives the creditors an additional
recourse in case the personal es-
tate proves insufHcient ; Livings-
ton V. Newkirk, 3 Johnson's Ch.
312; Cornish v. Wilson, 6 Gill,
209 ; Nagle's Appeal, 1 Harris,
260, 264. It is consequently the
duty of the executor, notwith-
standing the existence of any such
lien or charge, to satisfy the debt
out of the personal assets ; Ste-
vens V. Gregg ; Dandrige v.
Minge; Gould v. Winthrop;
Hoff''s Appeal ; and a devise of
the land subject to a mortgage or
other incumbrance, does not ex-
clude the operation of this rule, or
render the land primarily liable.
See vol. 1, 902 ; ManseU's Estate,
1 Parsons' Eq. 637, 639.

The rule is, nevertheless, not so
much one of law as an inference
drawn from the ordinary course
of business. As one whose per-
sonal property is sufficient does
not ordinarily sell his real estate
as a means of discharging his lia-
bilities, so the presumption is that
he did not intend that such a sale
should be made after his decease.

324

MAKSHALLING ASSETS.

This presumption may, notwith-
standing, be repelled by any lan-
guage in the will denoting that the
testator had a different design;
Huston V. Buston, 2 Dallas, 243 ;
Lee, Appellant, 18 Pick. 285 ;
McLaughlin v. McLaughlin, 12
Harris, 20. He may provide in
express terms that his debts shall
be paid in the first instance out of
his real estate, or he may do so
impliedly by appropriating the
personaltj' to other objects. See
M' Fail's Appeal, 8 Barr, 290. A
bequest of a sum of money or of a
specific chattel, is an implied di-
rection that it shall not be taken for
the payment of debts, ante. See El-
liott V. Garter, 9 Grattan, 541 ; Fen-
wick V. Chapman, 9 Peters, 466;
Th,e Bank of the U. S. v Bromly,
1 Howard, 134, 149. Hence a pe-
cuniary or specific legatee is en-
titled to exoneration at the expense
of the heir ; Fatterson v. Scott, 1
DeGex, M. & G. 531 ; Bobarts v.
Wortham, 2 Dev. Eq. 113. When,
however, the land is devised, the
presumption in favor of the de-
visee is as strong as that for the
legatee, and as devises, are specific,
stronger, unless the legacies are
also given specifically. Hence,
while a pecuniary legatee may be
substituted for a creditor who has
exhausted the personal estate, as it
regards the descended real estate,
he has no such right as against a
devisee, while devises and specific
and demonstrative bequests stand
at the same level, and contribute
equally ; BranVs Will, 40 Mis-
souri, 266, 280 ; Cryder's Appeal,
1 Jones' Penua. 72; Woodworth's
Estate, 31 California, 595, 616;

Shreeve v. Shreeve, 2 Stockton,
Ch. 385 ; Chase v. Lockerman,
11 Gill & Johnson, 186, 204;
Hallowell's Appeal, 11 Harris,
223 ; Elliott v. Carter, 9 Grattan,
549 ; Thoviasv. Thomas, 2 Green,
Ch. 356 ; Armstrong's Appeal,
13 P. P. Smith, 312.

It has long been held, that if
the specialty creditors exhaust the
personal estate, the legatees will be
subrogated to their remedy against
the land. The equity could not
be enforced in the case of simple
contract debts, because tliey were
not a charge on the, real estate ;
Hallowell's Estate, 11 Harris, 223.
This obstacle does not exist since
the change in the law rendering
land assets for the payment of all
debts, and there is no reason why
the descended real estate should
not be marshalled in aid of a lega-
tee who has been disappointed by
the recourse of the simple con-
tract creditors to the land ; Hallo-
well's Appeal ; Loomis' Appeal,
10 Barr, 387.

This is now generally conceded
where the bequest is specific ;
but the rule has not yet been es-
tablished in the United States
with regard to pecuniary legacies ;
Stevenson v. Gregg, 10 Gill & J.
143; Woodworth's Estate; al-
though there can be little doubt
that it will ultimately obtain here
as it does in England ; ante. See
Fatterson v. Scott, 1 De Gex, M.
& G. 531 ; Adams' Eq. 263, Am.
note.

It has, notwithstanding, been
held in some instances, that de-
vises stand at a higher level than
specific legacies, and cannot he

ALDRICH V. COOPER.

325

called on for contribution where
such a bequest fails through the
insufficiency of the personal es-
tate, unless the testator has mani-
fested his intention to place both
on the same footing by charging
the land, or it is subject to a lien ;
Shreeve v. Shreeve, 2 Stockton
Ch. 385 ; Warley v. Warley, 1
Bailey Eq. ; Rogers v. Rogers, 1
Paine, 188, 190 ; Elliott v. Carter,
9 Grattan, 541, 549. See Bubbell
V. Hubbell, 9 Pick. 561, where the
question was said to be an open
one in Massachusetts.

In Rogers v. Rogers, 1 Paige,
188, 190, the chancellor said : " If
the testator specifically bequeaths
his chattels to one person, and de-
vises his real estate to another,
without any directions as to which
property shall be appropriated
to satisfy an existing judgment
against him, the personal prop-
erty must first be applied to that
object."

It was held, in like manner, in
Elliot V. Garter, 9 Grattan, 541,
that where the debts are charged
on the whole estate real and per-
sonal, devisees and specific lega-
tees must contribute equally if
the personaltj'^ proves insufficient ;
but that where there is no such
charge, the specific legacies must
be appropriated before resorting
to the real estate in the hands of
the devisee. The court cited and
relied on Mirehouse v. Scaife, 2
Mylne & Keene, 635, b\it the point
there determined was that a pecu-
niary legatee is not entitled to con-
tribution from land devised.

A similar view was taken by
Chief Justice Gibson, in Loomis''

Appeal, 10 Barr, 381, 399.
" Where the estate is neither
charged with debts nor legacies,
nor subject to a specific lien, and
it does not descend, but is devised
to a stranger, or the heir, a chan-
cellor refuses to marshal the as-
sets in favor of a general legatee,
because there is no reason to
think he was as near the testa-
tor's heart as the specific de-
visee."

It is, nevertheless, well settled,
as the language thus held impjies,
that a debt secured by mortgage,
or other specific lien, shall not be
paid out of the personal assets to
the prejudice of a pecuniary or
specific bequest, and that such a
legatee may, on the contrary, re-
quire the mortgagee to proceed in
the first instance against the land,
whether it has fallen by descent
to the heir, or been devised ; Rus-
ton V. Ruston, 2 Yeates, 54 ; Hojfs
Appeal, 12 Harris, 200,206 ; Gould
V. Winthrop,b Rhode Island, 319,
323 ; 3Iason's Estate, 1 Parson's
Eq. 129,132; Thomas v. Thovias,
2 Green's Ch. 356 ; Elliot v. Car-
ter, 9 Grattan, 941. Yet in Mollan
V. Griffiths, 3 Paige, 142, the
chancellor seems to have thought
that, although pecuniary and spe-
cific legatees are alike entitled to
this equity, as it regards the heir,
it will not be enforced against a
devisee in favor of a pecuniary
legatee.

When this branch of the law
was moulded, personal property
was comparatively insignificant,
and the courts have been slow to
note the change through which
it has become not less important

326

MAKSHALLlNa ASSETS.

than real estate. This will ap-
pear on contrasting the order of
marshalling assets as prescribed
in Massachusetts and Pennsyl-
vania, at an earlier period, with
that which is followed at the pres-
ent daj'. In Hayes v. Jackson, 6
Mass. 149, the rule was said to be,
" 1. The personal estate, except-
ing specific bequests, or such of it
as is exempted from the payment
of debts. 2. The real estate which
is appropriated in the will as a
fund for the payment. 3. The de-
scended estate, whether the testa-
tor was seised of it when the will
was made, or it was afterwards
acquired. 4. The rents and profits
of it, received by the heir after the
testator's death ; and 5. The lands
specifically devised, although they
may be generally charged with the
payment of the debts, but not spe-
cially appropriated for that pur-
pose."

Here, specific legacies are de-
clared to be exempt from liability
for debts until the descended real
estate has been appropriated for
that purpose, but no such pre-
ference is accorded to pecuni-
ary legacies. When the question
arose twenty j^ears afterwards in
Pennsylvania, general pecuniary
legatees were held to be entitled
to exoneration at the expense of
the heir, while the liability of de-
visees to contribute ratably with
specific bequests, was impliedly
denied. Bell, J., said that the as-
sets were to be applied in the fol-
lowing order : " 1. The general
personal estate not expressly, or
by implication exempted. 2. Lands
expressly devised to pay debts. 3.

Estates descended to the heii
4. Devised land, charged witl
the payment of debts generally
whether devised in terms genera
or specific (every devise of lane
being in its nature specific). £
General pecuniary legacies, pr
rata. 6. Specific legacies, pvi
rata. 7. Real estate devised
whether in terms general or spe
cifle." Hoover v. Hoover, 5 Ban
351.

The point was not, however, ac
tually before the court in thesi
instances ; and when it arose ii
the subsequent course of decision
the right of specific and demon
strative legatees to contributioi
from devisees, was said to be ai
clear in Pennsjdvania with regarc
to all debts, as it was in Englanc
in the case of bonds and other ob
ligations under seal ; HallowelV.
Estate, 11 Harris, 223; Arm
strong^s Appeal, 13 P. F. Smith
312.

In Armstrong's Appeal, Shars
wood, J., said : " It was settled ii
England, by Long v. Short, 1 P
Wms. 403, that specific devises o
land, and specific bequests of per
sonalty, must abate ratably ii
case of a deficiency of assets fo
the payment of the bond debts o
the testator, because both land
and chattels were liable in law fo
those debts, and it was equally th
intention of the testator that th
legatee should have the chattel
and the devisee the land ; 1 Rope
on Legacies, 254. In this Statf
where lands have always been as
sets for the payment of debts h
simple contract, as well as b;
specialty, the rule is general, tha

Aldkich v. cooper,

327

wherever there is a deficiency of
assets to pay both debts and lega-
cies, specific devisees an(J specific
legatees shall contribute propor-
tionably. What is termed a de-
monstrative legacy partakes, in
this respect, of the privilege of a
specific legacy. A demonstrative
legacy is the bequest of a certain
sum of money, with a direction
that it shall be paid out of a par-
ticular fund. It differs from a
specific legacy in this respect, that
if the fund out of which it is pay-
able fails for any cause, it is, nev-
ertheless, entitled to come on the
estate as a general legacy, and it
difiers from a general legacy in
this, that it does not abate in that
class, but in the class of specific
legacies ; 1 Roper on Legacies,
153. It is settled by this court,
that in the marshalling of assets
for the payment of the debts of a
testator, specific devises of land
abate proportionably with specific
and demonstrative legacies ; Bark-
ley's Estate, 10 Barr, 387 ; Eallo-
well's Estate, 11 Harris, 223." The
right of legatees to marshal the
assets for the payment of simple
contract debts, was also recognized
in Lightfoot v. Lightfoot, 2*7 Ala-
bama, 351 ; Worley v. Worley, 1
Bailey Eq. 39'7 ; and Brant's Will,
40 Missouri, 206.

It results from these decisions,
that where, as in Pennsylvania,
lands are subject by law to a gen-
eral charge of debts, thej' may be
marshalled in aid of legacies
wherever such a course could be
adopted, if the charge were im-
posed by the will. See The Com-
monwealth V. Shelby, 13 S. & R.

348, 354 ; Tombs v. Hoch, 2 Coll-
yer, 496.

Although pecuniary legacies are
entitled to the benefit of this prin-
ciple as against the heir, they can-
not, agreeably to the main current
of decision, ask for contribution
or exoneration from lands devised ;
ante; Woodsivorth's Estate, 31 Cali-
fornia, 595 ; Clifton v. Burt, 1 P.
Wms. 678 ; Tombs y. JRoch, 2 Coll-
yer, 496, 505 ; Livingston v. Liv-
ingston, 3 Johnson's Ch. 148, 158 ;
Haines v. Wood, 8 Pick. 478.

In Hensman v. Fryer, 3 L. R.
Ch.App. 420, the doctrine that "if
the testator's intention must fail
from the insufficiency of the assets
it shall fail to the equal prejudice of
all the gifts, whether of real or
personal estate;" 2 Collyer, 490,
505 ; was held to reach far enough
to entitle a pecuniary legatee to
contribution from a devisee for the
payment of debts, whether due by
specialty or simple contract. Lord
Chelmsford said : " The testator in-
tended that the legatee should
have her legacy, as well as the de-
visee the devised estate. But she
will be entirely disappointed if the
devisee is not made to bear a pro-
portion at least of the debts which
the personal estate was insufficient
to satisfy. Vice-Chancellor Knight
Bruce, in Tombs v. JRoch, 2 Coll-
yer, 502, laid down an equitable
principle which is applicable to
the present case ; namely, that
" every will ought to be read as in
effect embodying a declaration bj*-
the testator, that the payment of
his debts shall be, as far as possi-
ble, so arranged as not to disap-
point any of the gifts made by it,

328

MARSHALLING ASSETS.

unless the instrument discloses a
different intention." The equality
here claiined for pecuniary legacies
is, nevertheless, at variance with
the judgment in Tombs v. Hoch,
which was that a pecuniary legacy
stands at a lower level than a spe-
cific bequest, and cannot, therefore,
rank with a devise. The devise in
Hensman v. Freyer^was residuary,
but this does not reconcile the
authorities, because Lord Chelms-
ford held that a residuarj' devise
is not less definite and specific
since the Wills Act than it was
before.

A different view prevails in some
of the States, drawn from the fol-
lowing considerations: A specialty
creditor has a common law riglit
to bring suit against the heir,
which was extended by the Statute
3 & 4 Will. & M. c. 1 4, to devisees,
(see postj notes to Silk v. Prime,)
and hence, if instead of adopting
this course, he exhausts the per-
sonal estate, the specific legatees
may claim the benefit of the princi-
ple on which a court of equity
marshals assets. Such is not the
position of a simple contract credi-
tor. Se has no direct remedy
against the land, and can only
have recourse to it in the event of
the insufficiency of the personal
property. It were, therefore,
manifestly unjust to require the
executor to pay him in the first
instance, out of the personal
estate. Such a decree would
be at variance with the rule that
a creditor shall not be satisfied
at the expense of one who is in-
terested in a fund which is sec-
ondarily liable, for the sake of

leaving the primary fund open to
another claimant. This is con-
ceded as it regards creditors, ante ;
and should apply a fortiori to a
legatee, whose claim depends ex-
clusively on the bounty of the tes-
tator. See Ahton v. Mum ford, 1
Brockenborough, 266 ; Miller v.
Harwell, 3 Murphj-, 104. Ac-
cordingly, in Ghase v. Lockerman,
11 Gill & J. 185, the Maryland
Court of Appeals, held that al-
though devises stand at the same
level with specific legacies, and
must contribute pro rata towards
the satisfaction of specialty debts,
no such obligation exists where
the personal estate is exhausted in
paying simple contract creditors
because it is still the primary fund
for such purposes, as it was the
only one at common law.

Such is the rule in North Caro-
lina and Marjdand ; Miller v. Har-
well ; Bobards v. Wortham, 2
Dev. Bq. 173; Ghase v. Locker-
man, 11 Gill & J. 186 ; Dugan v.
Hollins, 4 Maryland, Ch. 11 ; and
as it would seem, in Virginia. See
Alston V. Mumford ; Elliott v.
Carter, 9 Grattan, 541. The
reasoning on which it is based
may be logical, but the result can
hardly be vindicated as consistent
with the equality which should be
the aim of a court of equity in
marshalling assets ; that if there is
not enough for all, each demand
shall abate in an equal ratio. See
Tombs V. Boch, 2 Collyer, 490,
503 ; The Gommonwealth v. Shelby,
13 S. & R. 343, 353.

In Bobards v. Wortham, 2 Dev.
Eq. 113, Ruffln, J., said, "De-
scended lands must pay all debts

ALDRICH V. COOPER.

329

for which the real estate is liable,
ill exoneration of all but residuary
legacies, or of other lands specifi-
cally devised for the payment of
debts. And if the creditors go
upon the personaltj', the legatees
may have an indemnity out of the
realty. This is an old rule of the
Court of Chancery (Ch. Ca., 2 pi.
4). It is founded on this : that a
man who is able to pay all his
debts, and has something over to
give away, may give it as he
chooses. He cannot, indeed, re-
strain the creditor from resorting
to any fund made liable to him by
law. But if the creditor will,
through mere caprice or conven-
ience, go upon that fund which the
testator meant for a particular
donee, instead of tliat other, left
open alike bj'^ the law and the tes-
tator for his satisfaction, the donee
shall be reimbursed out of the
latter fund. And as to debts due
by specialty, in which the heir is
bound, this principle has been ex-
tended to the protection of pecu-
niary legatees, much more specific
legatees ; Hanby v. Roberts, Amb.
127 ; Oalton v. Hancock, 2 Atk.
430 ; Aldrich v. Cooper, 8 Ves.
396. If, therefore, the heir be
made to pay such a debt, he may
reinstate himself out of the ex-
ecutor, if there be a residue ; be-
cause both at law and in this court,
that is liable before land ; but if
there be no residue, but only things
given away in legacies, he cannot,
but must rest under the burden.
E converse, if such legacies be
applied to the discharge of such a
debt, the legatee shall be rein-
stated by standing in the place of

the satisfied creditor ; Hanby v.
Roberts. It follows, that in no
case in England can the legatee
be reimbursed out of the land for
a simple contract debt, paid out of
his legacy ; for the heir was not
liable for that to the creditor to
whose rights and remedies only is
the legatee substituted. It is the
same here ; because simple con-
tract creditors can have recourse
to the land only after exhausting
the personalty, and therefore tlie
legatee cannot ask the land to re-
place that personalty, which would
be an absurdity, as was held in
Miller Y. Johnson, 3 Murph. 194."
See Thomas v. Thomas, 2 C. E.
Green, 356.

In Alston v Mumford, 1 Brock-
enborough, 266, it was held for a
like reason, that the assets would
not be marshalled by throwing a
creditor who had obtained judg-
ment for a simple contract debt,
on the land, for the sake of leaving
the personal estate free for the
satisfaction of simple contract
creditors, because he has no right
of recourse to the real estate, un-
less the personalty is inadequate
to satisfy the judgment. The
court held, that where a fund is
not liable, except in the event of
the failure of another fund, which
is, in point of fact, suflScient to
pay the debt, the creditor is not
entitled to resort to the first
named fund, because the fund
primarily liable will otherwise be
inadequate to satisfy other de-
mands.

If this argument were adopted
in Pennsylvania, where the right
of a specialty creditor to bring

330

MARSHALLING ASSETS,

suit against the heir or devisee
has become obsolete, and the per-
sonalty is the primary fund for the
payment of all debts, the assets
could not be marshalled in any
case in aid of a legatee ; see Torres
instate, 3 Rawle, 250, 253.

It has been declared in some in-
stances, that where debts are
charged on the land, devises must
contribute equally with pecuniary
legacies. See Hoover v. Hoover,
5 Barr, 351, 357 ; Ulliott v. Garter,
9 Grattan, 541, 552 ; and the cases
which have been cited show that
a devisee of land incumbered by
a mortgage, is not entitled to con-
tribution from pecuniary or spe-
cific legatees ; ante, 323.

By the revised statutes of Mas-
sachusetts, " If any estate, real or
personal, that has been devised or
bequeathed, is taken as payment
for the debts of the testator, all
the other devisees or legatees
shall contribute so that the loss
sliall fall equally upon all." But
specific devises and legacies are
not within this provision, and do
not contribute to the payment of
the testator's debts until the gen-
eral devises and legacies are ex-
hausted. A residuary legatee can-
not require pecuniary and specific
legatees to abate ; and since the
revised statute, ch. 62, § 3, by
which a' testator is enabled to
dispose by will of subsequently
acquired real estate, a residuary
devise is within the same prin-
ciple, and has no claim for con-
tribution on pecuniary or specific
devises or bequests ; Blaney v.
Blaney, 1 Gushing, 107.
Agreeably to the statute law of

the same State, land descended,
or which has not been specifically
devised, is to be sold for the pay-
ment of debts and legacies, if the
personal estate is deficient ; and
in Ellis V. Paige, 7 Gushing, 161,
land which had been specincally
devised to the heir for the same
estate, which he would have taken
independently of the will, was held
to be descended real estate within
this rule; see Loomis' Appeal, 10
Barr, 387, 390.

To exonerate the personal estate,
there must either be express words,
or a plain indication that such is
the testator's purpose ; Glinefel-
ter V. Ayres, 16 Illinois, 329 ;
Marsh v. Marsh, 10 B. Monroe,
360. It is not enough that he has
charged the land ; it must also ap-
pear that he intended to discharge
the personalty; Gollis v. Bobbins,
2 De Gex & Smale, 131 ; Kirk-
patrick v. Bogers 7 Iredell, Eq.
44. See vol. 1, 917. Hence a
devise for the payment of debts,
and a fortiori, a charge of debts
does not make the real estate
primarily liable, or preclude the
heir from requiring that a mort-
gage or judgment which is a lien
on the land, shall be discharged
by the executor.

It is, notwithstanding, held in
South Carolina, that a charge for
the payment of debts on any por-
tion of the estate, real or personal,
denotes an intention that it shall be
primarily applicable for that pur-
pose, unless the inference is re'
pelled by the context, or the gen-
eral scope and tenor of the will ;
Hall V Hall, 2 M'Gord's Gh. 303 ;
Warley v. Warley, 1 Bailey's Eq.

ALDRICn V. COOPER.

331

404 ; Pe,ll v. Ball, 1 Spear's Eq.
520 ; Pinckney v. Pinokney, 2
Richardson's Eq. 235.

It seems that a direction to sell
exclusively for the payment of
debts, or a devise in trust to pay
debts, where that appears to have
been the sole or principal motive
for the creation of the trust, ■will
render the land the primary fund,
and exonerate the personal estate ;
Roberts v. Worlham, 2 Dev. Eq.
Its ; ante, vol. 1, 918. If, said Ruf-
fln, J., in Roberts v. Wortham,
♦' lands be devised to be sold for the
express purpose of paj'ing debts,
and the surplus given away as
money, tliere can be no doubt they
are first liable, even as between
them and a residuary legatee, un-
less some express interest is given
to another in the land fund." And
the authorities concur that where
the testator manifestly intends
that the land shall be appro-
priated in fhe first instance to
the discharge of his liabilities,
his purpose will be carried into
eflect by the law; The Gommon-
wealth V. Shelby, 13 S. & R. 348,
354; Spraker r. Van Alstyne, 13
Wend. 582; WFaiVs Appeal, 8
Barr, 290 ; Lee, Appellant, 18
Pick. 258 ; WLaughlin v. Mc-
Laughlin, 12 Harris, 20. Such an
interpretation may be put on a be-
quest of the whole personal estate,
with a direction that the debts
shall be paid out of the land, or
on a devise, on condition that the
devisee pays the debts ; Miles v.
Leigh, 3 Atkyns, 375 ; Marsh v.
Marsh, 10 B. Monroe, 360, 368;
M'Fait^s Appeal.

When from the nature of the

gift or the meritorious claim of
the legatee, a specific legacy is
manifestly designed to take eff'ect
at all events, it will be entitled to
exoneration at the expense of land
devised ; see Fenwick v. Chap-
man, 9 Peters, 471 ; The Bank
of the U. S. V. Beverly, 1 How-
ard, 134, 149 ; The Commonwealth
V. Shelby, 13 S. & R. 348 ; Stuart
V. Carson, 1 Dessaussure, 500 ;
and in Fenwick v. Chapman the
manumission of a slave by a will
containing a charge of debts, was
humanely held to be a bequest of
his freedom, entitling him to throw
the creditors on the land in the
hands of the devisee. In Stuart
V. Carson, a legacy bequeathed
for services was exonerated on a
like ground at the expense of
lands devised ; while in The Com-
m.onwealth v. Shelby, the court
held that a bequest to a wife of
specific articles out of the estate,
must remain untouched until all
the other real and personal assets
were exhausted. So a bequest to
a wife, who is otherwise unprovi-
ded for may, especially when it is
in lieu of dower, be exempt from
contribution to the payment of
debts, at the expense of legacies
which would otherwise stand at
the same level ; see HalloioelVs
Estate, 11 Harris, 223; Greed v.
Greed, 1 Drury & Warren, 416;
Glery's Appeal, 11 Casey, 54.

The presumption in favor of
appropriating the personal estate
to the payment of debts before
recourse is had to the land, is
not repelled by a residuary be-
quest, because the terms of the
gift imply that the legatee is to

332

MAKSHALLIXa ASSETS.

take what remains after the
claims on the estate are satisfied.
Hence the real assets will not be
marshalled in aid of a residuary
legacj', although suliject to a
mortgage or other specific lien ;
Rider v. Wager, 2 P. Wms. 328 ;
Hamilton v. Worloij, 4 Brown,
C. C. 204 ; Ruston v. Ruston, 2
Yeates, 54, 63 ; see notes to Ancas-
ter V. 3Iayer, vol. 1 ; or even of a
bequest of the whole personal
estate, although not in terms re-
siduary, unless there are words of
demonstration or description to
render it specific, or unless there
is a plain declaration or manifest
intent, that the land shall be
primarily chargeable with the pay-
ment of debts ; Howe v. The Earl
of Dartmouth, 1 Vesey, ISt, post.
Otherwise the inference is that the
testator intended the legatee to
have, not a fixed or determinate
amount or value, but such personal
property as he might die possessed
of, subject to the payment of debts,
and of the pecuniary or specific
bequests made in the will. This
presumption applies notwithstand-
ing a general charge of debts
on the land, whether imposed by
the testator, or implied as in this
country bj^ the law ; Ancaster v.
Mayer, 1 Brown's C.C. 454 ; Eeil-
ing V. Brown, 5 Vesey, 359 ; al-
though a specific appropriation of
the land for the payment of debts
making it the primary fund, will
exonerate the personalty ; Adams
V. Meyrick, 1 Equity Cases, Abr.
271 ; Wainwright v. Bendlowes, 2
Ternon, 118; Webb v. Jones, 2
Brown's C. C. 60; Bardwell v.
Bardivell, 10 Pick, 19; Lee, Ap-

pellant, 18 Id. 285 ; Spraker v.
Van Alstyne, 18 Wend. 200; while
the same result may follow from
a bequest of the personalty to one
person, and a devise conditioned
for the payment of debts, to an-
other; M^ FaiPs Appeal,^B2in-, 90.
Although the heir is entitled to
exoneration at the expense of a
residuary legatee, yet the rule is
the other way where the legacj' is
pecuniary or specific ; for as the
testator has manifested an inten-
tion that the legatee should have
a bequest certain in nature or
amount, it will be 'presumed that
he did not mean that the gift
should be defeated by the pay-
ment of debts ; Lightfoot v. Light-
foot, 27 Alabama, 351 ; see Hens-
man V. Fryer, 3 L. R. Ch. 424 :
and it was said in Lightfoot v.
Lightfoot, that a bequest of all the
testator's property of a specific
kind, is at all events in this regard
specific. " The bounty of the tes-
tator entitles a legatee to marshal
the assets ; and the choice of the
creditors, to proceed against the
personal estate, instead of the real
estate descended, shall not pre-
clude the payment of the legacj ;"
Post V. Mackall, 3 Bland, 486,508;
Miller v. Harwell, 3 Murphy, 195 ;
Brown v. James, 3 Strobhart's Eq.
24. "If the debt is a specific lien
upon the land, as in the case of a
mortgage, a legatee may in some
cases stand in the place of the
mortgagee, who has exhausted the
personal estate, even as against a
devisee ;" per "Walworth, Chancel-
lor, Mollan V. Griffith, 8 Paige,
402.

Pecuniary and general legatees

ALDRICH V. COOPER.

333

were also held entitled to throw
the burden of debts on the heir,
in Robards v. Wortham, 2 Dev.
Equity, 173 ; Warley v. Warley, 1
Bailey Equity, 39Y ; Brown v.
James^ 3 Strobhart, Equity, 424,
and Dunlap v. Dunlap, 4 Dessaus-
sure, 305 ; and it has been seen
that specific and demonstrative be-
quests are entitled to contribution
from lands devised ; Crider's Ap-
peal, 1 Jones, Penna. I'i'd.

The weight of authority is in
favor of regarding a bequest of
" all my personal estate," or " the
whole of my personal estate," as
residuary, unless a contrary inten-
tion appears from the context, or
can be gathered from the other
clauses of the will ; Howe v. The
Earl of Dartmouth, t Vesey, 137,
post ; Woodward's Estate, 31 Cali-
fornia, 595, 602 ; Walker's Estate,
3 Rawle, 229. Such a bequest ob-
viously is not pecuniary, and to
regard it as specific would involve
two inconveniences, one, that after
acquired personal property would
not pass by the will, the other,
that the bequest would be ad-
deemed wholly or pro tanto, by a
sale, of the property, or the con-
version of it into another form ;
Howe V. Earl of Dartmouth. It is,
therefore, interpreted as a gift of
all the personal estate that the
testator may have at his death,
which is not otherwise appro-
priated by his will, or by the law ;
Walker's Estate, 3 Rawle, 229.

In Walker's Estate, the tes-
tator gave his wife certain real
estate, and "all his household
goods and furniture, moneys,
bonds, mortgages, outstanding

debts due and owing to him, and
all other his personal estate of
what nature and kind soever.
He also made a devise in trust
for his son, and devised other
land for the separate use of his
daughter. These devises and be-
quests embraced all that the tes-
tator owned at the date of the
will, although he subsequently
purchased land. It was held, that
the bequest to the wife was not
specific, and that there was noth-
ing in the will which denoted an
intention to exempt any part of
the personalty from the payment
of debts, and that the whole must
consequently be applied for that
purpose before the after-acquired
real estate could be resorted to.
To exonerate the personalty, said
Rogers, J., " the will must con-
tain express words for that pur-
pose, a clear, manifest intention,
a plain declaration, or a necessary
inference, tantamount to express
words. The question, in each par-
ticular case of exemption, resolves
itself into tliis : Does there appear
from the whole testamentary dis-
position, taken together, an inten-
tion on the part of the testator, so
expressed as to convince a judi-
cial mind that it was meant not
merel3' to charge the real estate,
but so to charge it, as to exempt
the personal ? For it is not by an
intention to charge the real, but
by an intention to discharge the
personal estate, that the question
is to be decided. There is noth-
ing in the will of the testator
which clearly manifests an inten-
tion to charge his real estate with
the payment of his debts, nor

334

MARSHALLING ASSETS.

■would that be necessary, as be-
tween the legatee and the heirs
of the land descended, provided
it was manifest he intended to
exempt his personal estate ; and
this is the great difficulty with
which the legatee has to contend.
And , this intention we are re-
quired to infer, from something
which has occurred since the date
of the will. The testator dis-
posed of all his property, real
and personal, and as between the
devisees in the will, it is not to
be questioned that the personal
estate would be liable to the
debts. It would be a singular
construction, to infer an intention
to charge lands with the payment
of debts, which the testator ac-
quired after making his will ;
and the case of Hays v. Jackson,
6 Mass. R. 149, decides that a
testator cannot, in his will, charge
after-purchased lands any more
than he can devise them. The
case which bears the strongest
analogy to the present, is the one
just cited. The rule, as laid down
by Chief Justice Parsons, is ap-
jDlicable here. The case was this :
The testator ordered his debts to
be paid ; made a specific devise of
certain lands to his sister, and de-
vised all the residue of which he
should die seised to a residuary
legatee. He died seised of lands
Ijurchased after the making of
the will, which, of consequence,
did not pass. The executors ap-
plied for license to sell real estate
for the payment of debts. The
court directed them, first to sell
the devised lands not included in
the specific devise, and next, the

lands which descended to the
heirs. The Chief Justice says,
' Jackson first provides that his
debts and funeral charges be
paid ; he next beqneaths legacies
to his nephews and nieces, and
makes a specific devise to his
sister Susanna Gray. Then he
gives to Mrs. Swan, in fee, all
the remaining part of his estate,
real and personal; the just con-
struction of which is, when my
debts and funeral charges, and
the legacies are paid, and the
specific devise to my sister is
deducted, then what remains,
whether real or personal, I de-
vise, in fee, to Mrs. Swan.' In
one respect, this is a stronger
case than the present, for here
the court ordered the real, as
well as the personal estate, de-
vised to Mrs. Swan, to be sold,
before the descended lands. A
distinction has been attempted
between the cases, and it is true,
that they are not in every feature
exactly alike, which, indeed, is
seldom, if ever, the case in pre-
cedents on the construction of
wills. It is objected, that here
there is no direction to pay debts,
and that this is the case of a pri-
mary, and not a residuary devise.
To this I answer, that every testa-
tor is presumed to know the law
of the country in which he lives,
and to make his will in reference
to it. The estate of the testator
is equallj' bound, without as with
such a direction, and in the order
that has been indicated. Such a
clause in the will, although usual,
is by no means necessary in Penn-
sylvania. The personal fund is the

ALDRICH V. COOPER.

335

first in order for the payment of
debts, whether mentioned in the
■will or not, and this Is not doubted,
as between the devisee of the real
estate and the legatee, and how it
can make any difference as re-
gards the heirs of the descended
lands, I am at a loss to discover.
It is hardly necessary to quarrel
about terms, but Elizabeth Walker
is nothing more nor less than a
residuary legatee. The intention
of the testator, at the time of the
making of the will, most certainly
was, that after his debts and fun-
eral charges were paid, then what
remained he bequeathed to his
widow as legatee. If nothing re-
mained, then nothing is bequeathed
to her. It cannot in any sense be
considered as a specific bequest of
the remainder to her. The law
creates the fund for the payment
of the debts, and the testator be-
queaths to her what remains, after
satisfying the requisitions of the
law. If this be the true reading
of the will, then the widow will
get precisely what the testator in-
tended she should have, viz., all
that remained of his personal es-
tate at the time of his death, after
payment of the charges which the
law imposes upon the land."

It results from this decision that
a bequest of all the personal estate
is not specific, though containing
an enumeration of items, and does
not denote an intention to exempt
the property so bequeathed from
the payment of debts, or entitle
the legatee to marshal the real
estate as against the heir; Broad-
well V. Broadwell, 4 Metcalfe, Ky.
290. So a bequest of all the testa-

tor's goods, chattels or choses in
action of a particular kind, is gen^
eral and not specific, because it
will take effect on any property of
that kind which he maj' acquire
subsequently to the execution of
the will; Woodworth's Estate, 31
California, 595, 601 ; see Pell v.
Ball, Speer Eq. 518. The question
nevertheless depends on the inten-
tion denoted in the will, and if
that plainlj' is that a gift of all the
testator's personal estate, or of all
his goods and chattels of a certain
description shall be specific, and
exempt from the payment of debts,
the burden will be thrown on the
land, or it will be required to con-
tribute as best serves the end
which the donor had in view ;
see vol. 1, 929 ; Miles v. Leigh, 3
Atkyns, 573 ; Marsh v. Marsh, 10
B. Monroe, 360; Hoes v. Van
Hoesen, 1 Barb. Ch. .380, 400; 1
Comstock, 120 ; Lunt v. Hopkins,
t Simons, 43; Booth v. Blundell,
1 Merivale, 228 ; Bethune v. Ken-
nedy, 1 Mylne & Craig, 114;
Lightfoot v. Lightfoot, 2T Ala-
bama, 351 ; Everett v. Lane, 2
Iredell, Eq. 548 ; Wallace v. Wal-
lace, 2 Foster, 149, 155.

The following cases may be re-
ferred to among many which ex-
emplify this principle: In Mc-
Laughlin V. McLaughlin, 12 Har-
ris, 20, the testator, after directing
that his debts and funeral ex-
penses should be paid out of the
first moneys that should come to
the hands of his executors from
any portion of his estate, real or
personal, gave the whole of his
household and personal property
to his wife. He then directed his

336

MARSHALLINa ASSETS,

executors to dispose of the whole
or any part of his real estate, if
requisite for the comfortable sub-
sistence of his wife, or the pay-
ment of a pecuniary bequest he
had given to his brotiier, and
finally made his nephew his re-
siduary legatee, to whom his exe-
cutors were directed to deliver all
sums of money that might remain
in their hands from the collection
of his debts, and all and every
part of his remaining real estate.
It was held that the legacy to the
wife was virtually specific, and en-
titled to exoneration at the ex-
• pense of the real estate.

In Spraker v. Van Alstyne, 13
Wend. 582 ; 18 Id. 200 ; Cornelius
Van Alstyne gave all his house-
hold goods and movable effects
to his wife, and directed that
she should be maintained out
of his estate during her life. He
next directed that all his debts
should be paid by his sons Martin
and Cornelius. Then followed a
devise to them of certain lands.
It was held by the Court of Ap-
peal, reversing the judgment of
the Supreme Court, that the land
devised was the primary fund for
the payment of debts, and must
l?e applied for that purpose before
recourse could be had to the per-
sonal estate which had been left
to the widow.

In the case of Lee, Appellant,
18 Pick. 258; the testator's per-
sonal property was, with the excep-
tion of certain books and shares
of stock, bequeathed to his wife,
and certain real estate belonging
to him in New York was devised
to his executors in trust to dispose

of the same and pay his debts out
of the proceeds. After the exe-
cution of the will the testator sold
tliat portion of his real estate, and
purchased other lands. The court
held that the will disclosed a plain
design, that his wife should have
all the personal estate except the
books and stock, without liability
for his debts. The direction that
these should be paid out of the
real estate which had been devised
to his executors, made that the
primary fund. The sale was a
revocation of this devise, but it
did not indicate a change of the
intention that the bequest to the
wife should not be burdened with
the testator's debts. Hence, the
property which had been left to
her was entitled to exoneration at
the expense of the after acquired
land.

The courts of South Carolina
hold, that whether a bequest of the
whole of the personal estate, is
general or specific, it manifests an
intention that the legatee shall
have all the property of that kind
belonging to the testator at his
death, and consequently entitles
him to exoneration from debts
which are a charge on the land,
at the expense of the heir ;
Warley v. Warley, 1 Bailey Bq.
39Y. In Brown v. James, 3 Stroh-
hart's Eq. 24, 21, a bequest
of the testator's whole personal
estate, or of the residue after
specific legacies, was said to be
specific, as it regards the right
of the legatee to marshal the real
assets for the payment of debts ;
and the rule applies a fortiori
where the testator bequeathes all

ALDRICH V. COOPER.

337

his personal estate, and then goes
on to state of what it consists. It
has been held on a like ground in
New York, that where legacies are
charged on real and personal
estate, a general beqiuest of the
personalty will exonerate it, and
throw the burden on the real
estate ; Kelsey v. Beyo, 5 Co wen,
133 ; Hoes v. Fa?i Hoesen, 1 Barb.
Ch. 380; 1 Comstock, 120. In
Harvey v. Graham, 9 Richardson
Eq., and Lloyd v. Lloyd, 10 Id.
138, a bequest of all the personal
estate, was held not to be a suffi-
cient ground for exonerating it
and throwing the burden of debts
on the land. But Verdier v. Ver-
dier, 12 Richardson Eq. 138, in-
cliues to the doctrine of Warley
Warley.

A legacy payable out of land
is demonstrative, and will not be
ademed by the failure or insuffi-
ciency of the fund designated for
its paj'ment ; Wilcox v. Wilcox, 11
Allen, 252 ; post, notes to Ash-
hurner v. Maguire. But it is at
the same time so far specific, that
it will not be called on for the
payment of debts which are a
charge on the land, um,il the de-
scended real estate is exhausted,
and will then be entitled to contri-
bution from land devised. The
rule applies, though the bequest is
in terms pecuniary, and whether
the fund out of which it is paya-
ble be real or personal, because
one who sets apart a portion of his
estate for a particular purpose will
be presumed to intend that it shall
not be used in a different way. See
Cryder's Appeal, 1 Jones, T2 ;
Gaw V. Hvffman, 12 Grattan, 628 ;
VOL. II — 22

M' Campbell v. M' Campbell, 5
Littell, 92 ; Wilcox v. Wilcox, 13
Allen, 252.

It results from the same princi-
ple, that where a pecuniary legacy is
charged upon or paj'able out of a
specific legacy, it will not abate
for the payment of debts until the
specific legacy is exhausted ; and
the rule applies whether the charge
is imposed in express terms or im-
plied ; Biddle v. Carraway, 6 Jones'
Eq. 951 ; White v. Green, 1 Iredell
Eq. 45. It is well settled, that
wherever an intention to exempt
any portion of the estate can
be gathered from the will, it will
be carried into effect, if the other
assets are adequate to satisfy the
demands of creditors. In White v.
Green, Ruffln, C. J., said : " The
rule that specific legacies do not
contribute to or abate with gen-
eral legacies, meets with an excep-
tion where a general legacj' is ex-
pressly charged upon a specific
legacy, or is payable thereout. So,
if a pecuniary legacy be given, and
there be no fund to pay it, or,
rather, if there never was any
fund to pay it except the specific
legacies, owing to the fact that
everything is given away specifi-
calljr, the necessary construction
is that the general legacy is to be
raised out of the personal estate,
although specifically bequeathed.
For it is not to be supposed, that
the testator meant to mock the
legatee; Sayer v. Sayer, Pre. Ch.
393 ; Ross on Legacies, 255, 3d
ed. ; White v. Beatty, 1 Dev. Eq.
8Y, 320.

Where property of any kind is
devised to one person, and a sum

338

MARSHALLING ASSETS.

certain bequeathed out of it to an-
other, the intention of the testa-
tor manifestly is that the devisee
shall only have what remains after
paying the legacy, and if the prop-
erty becomes less valuable, or part
of it is required for the payment
of debts, the loss will be his, and
not that of the person who is to
receive the money ; Hoover v.
Hoover, 5 Barr, 351. Let it be
supposed that a house worth $4,000,
is given by will to A., and another
of equal value to B., with a di-
rection to pay $2,000 to C, and
that in consequence of the insuffi-
ciency of the personal estate, debts
amounting to $3,000 devolve on
the land, shall C. contribute to the
payment of the debts, or shall the
burden be thrown exclusively on
A. and B. ? The answer to this
question appears to be, that the
sum requisite for the discharge of
C.'s legacy having been appropri-
ated exclusively to that object,
cannot be taken to satisfy the de-
mands of creditors unless there is
no other fund. Hence, A.'s pro-
portion would be $2,000, B.'s
$1,000, and the legacy to C. would
be payable in full.

This view is sustained by the
case of Barclay^s Estate, 10 Barr,
381. The testator directed his ex-
ecutors to sell a certain tract of
land " for and towards the per-
formance of his testament." He
then devised the residue of his
land to his wife for life, remainder
to his son in fee. The will then pro-
vided that the moneys arising from
the sale of the first mentioned tract
should, after deducting $300, be
divided equally among his daugh-

ters, and finally contained a bequest
of $100 to each of his three grand-
children. The court held that the
$300 were specifically set apart for
the grandchildren. Their legacies
being demonstrative, and subject
to abate only as between them-
selves, were to be fully satisfied in
the first instance out of the fund
appropriated for that purpose.
The burden of the debts must
consequently be distributed be-
tween the land devised to the wife,
and the tract directed to be sold,
which was, in effect devised to the
daughters, who might, on paying
the amount bequeathed to the
grandchildren, have demanded a
conveyance of the title. See Hal-
lowell's Estate, 11 Harris, 223.

In Gryder's Appeal, 1 Jones,
12, the testator directed his farm
and fulling mill to be sold, and the
purchase money applied to the
payment of certain legacies. He
also devised other real estate spe-
cifically. The personal estate
proved insufficient, and it was
held, that as the legacies were to
be paid out of the proceeds ol
land, they were specific ; that the
surplus or that fund above the
amount requisite for the payment
of the legacies should go to satisfy
the debts ; and that the legacies
and the land specifically devised,
should then be assessed ratably
for any deficiency.

In Lo7ig V. Hhort, I P. Wms,
403, the testator gave a rent charge
of £40 a year out of a leasehold
to one person, the leasehold itsell
to another, and devised a freehold
estate to a third, and it was held
that the rent charge, the leasehold

ALDRICH V. COOPER.

839

subject to it, and the freehold must
contribute pro rata to the payment
of debts. This may appear at va-
riance ■with the doctrine of Barc-
lay''ss Estate, that a bequest out of
an estate, is not to abate until the
property on which it is charged
has been exhausted. An explana-
tion may perhaps be found in
diflference between a pecuniary
legacy and a rent.

In Oaw V. Huffman, 12 Graf-
man, 628, the testator devised a
farm to his sons, subject to the
payment of two sums of $500 each
to his other children. He then
devised the rest of his land to
other persons. The personal es-
tate fell short of the amount requi-
site to pay the debts, and it be-
came a question in what way the
deficiency should be supplied. The
court held, that the legacy should
be deducted in estimating the
value of the land bequeathed to
the sons, and that it, the legacies
themselves, and the remaining land
should contribute ratablj', Mon-
cure, J., said, that the legacies
charged upon the land and carved
out of it, were certainly not more
specific than the land itself, nor
better entitled to exemption from
liability to debts.'' This argu-
ment doesnot touch the question
whether the legacies should have
been called on, before the fund in-
dicated for their payment was ex-
hausted. The doctrine that a leg-
acy payable out of land must be
assessed ratably with the land,
was also applied in M' Campbell
V. M' Campbell, 5 Littell, 92.
Whether HalloweWs Estate, 11
Harris, 20, proceeds on this

ground, or on that taken in Bar-
clay's Estate, ante, does not suffi-
ciently appear from the report.

The right of a devisee to mar-
shal the assets as against the heir,
is not less established than that of
a specific legatee, and depends on
the same principle ; Brooks v.
Dent, 1 Maryland, Ch. 523 ;
Bugan v. Hollins, 11 Marjdand,
41 ; Mitchell v. Mitchell, 21 Id.
244 ; Livingston v. Neiokirk, 3
Johnson, Ch. 312. In Livingston
V. Livingston, lb. 148, Chancellor
Kent declared, that the heir was
not entitled to contribution from a
devisee towairds the satisfaction of
creditors, nor would the court
help a pecuniary legatee to throw
the debts upon a devisee ; but de-
visees must contribute ratably as
among themselves, to debts which
are from their own nature a
charge on the land, or have been
imposed upon it by the testator.
It is established in accordance
with this decision, that a charge
of debts on land which is specifi-
cally devised, does not render it
the primary fund, or preclude the
right of the devisee to exonera-
tion from land taken by descent ;
Livingston v. Newkirk, 3 John-
son, Ch. 312 ; Stires v. Stires, 1
Halsted, 224. For a like reason,
a legacy charged generally on the
real estate, is paj'able out of land
descended before recourse is had
to land devised ; Mitchell v. Mit-
chell, 21 Maryland, 244.

It is well settled, that a residuary
devise is specific, and as such, en-
titled to contribution from land
specifically devised in terms;
Livingston v. Newkirk ; Shreve

3i0

MARSHALLING ASSETS,

V. Shreve, 2 Stockton, Ch. 385,
and the weight of authority is,
that this rule has not been varied
by the statutes which have
brought after acquired real estate
within the scope of a will ; Hens-
man V. Fryer, 3 L. E. Ch. Appeals,
420 ; Shreve v. Shreve. But the
question is one of intention ; and
where it appears from the tenor
of a residuary devise, that the tes-
tator only intended to give what
should remain after the demands
on his estate were satisfied, it will
be the primary fund for the pay-
ment of debts and legacies after
the personal estate Ijas been ex-
hausted ; Hayes v. Jackson, 6
Mass. 149; Elliott v. Garter, 9
Grattan, bil,post, 341.

In Hayes v. Jackson, 6 Mass.
149, the testator after directing
that his debts should be paid, and
giving his nephews legacies of $50
each, made a specific devise to his
sister, and then bequeathed " all
the remaining part of his estate,
real and personal, which he then
had or might afterwards acquire,"
to a residuary devisee. He subse-
quentljf acquired other real estate
which descended to his heirs, and
the court held, that the land com-
prised in , the residuary devise,
must be applied to the payment of
debts before recourse was had to
the after acquired land. Parsons,
C. J. said, that " the residuary de-
vise was not specific. It was in-
tended to create a fund for the
payment of the debts and legacies,
with a gift of what remained, if
anything, to the residuary devisee.
What was taken from the residuary
levise for the payment of debts,

was not taken from the devisee, be-
cause he was to have nothing until
the debts were paid. " It was inti-
mated in like manner in Adams v.
Brackett, 5 Metcalf, 280, that
where the real estate is blended in
a residuary bequest with the per-
sonal, both are equally chargeable
with debts, and the real estate
must be appropriated before any
part of the burden can be thrown
on the heir ; and the same principle
was applied in Hall v. Hall, 2
M'Cord, Ch. 269.

A devisee is not entitled to con-
tribution from another devisee, to
a mortgage, which is peculiar to
the land bestowed on himself, un-
less such was the intention of the
testator, which will not be inferred
from a general charge of debts
on the real estate ; Oibson v.
M'Cormick, 10 Gill & J. 65 ;
Thomas v. Thomas, 2 C. E.
Green, 356.

In general, a devisee, or the
heir of land which was mortgaged
by the testator, is entitled to have
the mortgage discharged by the
executor, because the inference is,
that the testator intended that his
personal property should be ap-
plied to the payment of his debts,
although secured on the real
estate ; Howes v. Dehon, 3 Gray,
205 ; Plimpton v. Plimpton, 11
Allen, 139 ; Toole v. Swasey, 106
Mass. 100 ; Mansell's Estate, 1
Parson's Eq. 369 ; Winthrop v.
Gould, 5 Rhode Island, 319;
Thomas v. Thomas, 2 Green, Ch.
356 ; Clark v. Henshaw, 30 In-
diana, 144 ; Cornish v. Wilson, 6
Gill, 303 (see notes to ^nnasier- V.
Mayer, vol. 1) ; and the lien of an

ALDRICH V. COOPER,

341

unpaid vendor is within this prin-
ciple as being in effect an equitable
mortgage. The presumption is
repelled where the testator dis-
poses of the assets differently, by '
making a pecuniary or specific be-
quest, and the legatee may conse-
quently require the mortgagee to
proceed in the first instance against
the land. So the inclination of the
authorities is, that a legatee may
be subrogated to a vendor's lien,
which has been paid out of the
personal estate. See vol. 1, 4'?3;
Birds V. Aske.y, 24 Bevan, 618;
Durham v. Rhodes, 25 Maryland,
235.

But the personalty will not be
applied to the payment of a mort-
gage for the benefit of a residuary
legatee, who is only entitled to
what remains after the payment of
debts ; Howes v. Dehon, 3 Gray,
205 ; Plimpton Y. Fuller, 11 Allen,
139.

The rule that the personal es-
tate of a decedent is the fund for
the payment of his debts, does not
apply to the debts of third per-
sons, although they maybe charged
on the land. In re Taylor's Es-
tate, 8 Exchequer, 384 ; Kersey's
Case, 9 S. & R. Tl ; Mason's Es-
tate, 1 Parson's Eq. 129 ; Gould v.
Winthrop, 5 Rhode Island, 119,
122, ante ; see vol. I, 925. Accord-
inglj', where one acquires real es-
tate which has been mortgaged by
a former owner, and transmits it to
a devisee or heir, the land is the
primary fund for the payment of
the mortgage, and the executor
is not entitled or compellable to
satisfy it out of the personal as-
sets. The principle is the same,

whether the mortgaged premises
were acquired by descent, devise, or
purchase, and it is immaterial that
the decedent agreed with the party
of whom he bought, to save him
harmless from the mortgage debt,
or even that he assumed the debt
by a covenant to that effect with
the mortgagee, unless his purpose
was to exonerate the land, and not
merely to induce delay or forbear-
ance ; Cumberland v. Godrington,
3 Johnson, Ch. 229, 262 ; Gould v.
Winthrop, 5 Rhode Island, 819,
321. It was accordingly held in
Mason's Estate, 1 Parson's Eq. 129,
that the purchase of an equity of
redemption without any express
covenant with the mortgagor or
mortgagee, although the convey-
ance contains a recital that it is
under and subject to the mortgage,
does not entitle one to whom the
premises are subsequently devised,
to be exonerated at the expense of
the personal estate ; and there are
numerous authorities to the same
effect ; see vol. 1, notes to Ancaster
V. Mayor ; Mitchell v. Mitchell, 3
Maryland, Ch. 73; Stevens v.
Gregg, 10 Gill & J. 143; Gibson
V. M'Gormick, lb. 65. In like
manner a devisee of land which
is encumbered with a charge in
favor of the widow of a former
owner, takes it cum onere, and can-
not require the executor to dis-
charge or satisfy the lien ; Bell v.
Bell, 8 Casey, 309.

In Cumberland v. Codrington,
Sir Wm. Pulteney took a convey-
ance of a tract of wild land in the
western part of the State of New
York, subject to a mortgage, with
a covenant to indemnify the

342

MARSHALLING ASSETS

grantor. He died intestate, hav-
ing paid oflf part of the incum-
brance, and the land descended to
the Countess of Bath. Her agent
in the United States paid the in-
terest on the mortgage as it ac-
crued, and entered into an engage-
ment to pajr the principal, as soon
as he could obtain money for the
purpose out of the mortgaged
premises which she had empowered
him to sell. But there was no evi-
dence that this engagement was
authorized by the countess, or rati-
fied by her, although she acqui-
esced in the payments of interest.
The court held that there was
nothing in the case to render the
j)ersonal estate of Sir Wm. Pul-
teney, or of the countess liable to
the mortgage debt. Chancellor
Kent said, that agreeably to the
English authorities, a purchaser
of an equity of redemption, who
covenants to indemnify the vendor
against the mortgage debt, does not
thereby make the debt his own so as
to render his personal assets the
primary fund to pay the mortgage.
The cases all agreed that a cove-
nant with the mortgagor is insuffi-
cient for that purpose ; there must
be a direct communication with the
mortgagee, and even that is not
enough, unless the dealing with
the mortgagee be of such a nature
as to afford decided evidence of
an intention to shift the primary
obligation from the real to the per-
sonal estate.

It may be observed with regard
to this decision, that a covenant
by a purchaser of an equitj' of re-
demption to save the vendor harm-

less against the mortgage debt,
does not impose a certain or fixed
liability. Whether the covenant
can been forced, and for how much,
depends first on the account be-
tween the mortgagor and mort-
gagee, and next on the election
of the mortgagee to proceed
against the mortgagor personally,
instead of having recourse to the
land. The covenantor may hope
or anticipate that a judgment will
not be recovered against the mort-
gagor, and mean to leave himself
free to determine whether he will
suffer the mortgagee to foreclose,
or discharge the debt out of the
personal assets. Such an obliga-
tion is, therefore, essentially -dif-
ferent from the assumption of a
sum certain as due on the bond,
and to be paid to the mortgagee
as a part of the consideration for
the sale.

Accordingly, where an estate was
sold for £90, subject to a mort-
gage, of which £86 were by the
writings executed at the time to be
paid to the mortgagee, and £4 to
the vendor, it was held tliat the
purchaser had thereby made the
debt his own, and that his heir
was entitled to have the land ex-
onerated at the expense of the
personal estate ; Parsons v. Free-
man, Ambler, 115 ; 2 Peere. Wms.
664, note. Lord Hardwicke said,
not only might the mortgagee
have brought suit on the agree-
ment in the vendor's name for his
own use, but the heir was entitled
to stand in the vendor's place for
the purpose of compelling the ap-
propriation of the assets in the

ALDRICH V, COOPER.

343

hands of the executor, to the ful-
filment of the obligation which had
been incurred by the testator.

In commenting on this decision,
Chancellor Kent observed that an
agreement between the purchaser
and seller of an equity of redemp-
tion, treating the mortgage debt,
as so much money left in the hands
of the purchaser for the use of
the mortgagee, may be sufficient
ground for a recovery at law by
the mortgagee, on the ground that
one may enforce a promise made
for his benefit; Hoff^s Appeal^ 12
Harris, 200, 205 ; 2 American
Lead. Cases, 17 '7, 5th ed. Such a
direct liability incurred for a con-
sideration received by ttie promis-
sor, rendered the debt his own,
and his personal assets were pri-
marily liable.

The principle of Parsons v.
Freeman was vindicated and ap-
plied in Hoff''s Appeal, 12 Harris,
200. There Hofi" purchased a
house from Reynolds for $13,900,
subject to a mortgage of $8,400 ;
but it appeared from a memoran-
dum appended to the deed, that
the vendor had " received $5,500,
wiiich, with the mortgage debt of
$8,400 to Isaac Harvey, and the
interest due and to become due
thereon, is in full of the considera-
tion for the above granted premi-
ses." It was also proved that the
vendee had paid tiie interest on
the mortgage from the date of the
convej'ance to his death. Wood-
ward, J., said " it is indisputa-
ble that what Hoff bought was
not merely the equity of re-
demption, but the entire interest
in the estate, and that the mort-

gage formed part of the price, and
had been so assumed as such by
him. There can be no doubt on this
evidence that he was liable to an
action for money had and received
at the suit of the mortgagee. The
case resembles that of the Earl of
Belvidere v. Rochefort, 6 Brown,
P. C. 520, where it had been held
" that the plain intent of the deed
was to put the purchaser in the
place of the vendor, and that the
vendor might not be longer liable
to the mortgagee, a sufficient part
of the purchase money was left in
tlie purchaser's hand for the satis-
faction of the mortgage, the pur-
chaser thereby taking upon himself
the vendor's bond and covenant
for the payment of the mortgage,
as fully as he himself had coven-
anted to pay it off, and either the
vendor or mortgagee might, upon
that contract, have compelled him
to pay it off." The decree in that
case was confirmed by the House
of Lords, and though some doubts
have been thrown upon it by Lord
Thurlow, in Tweedle v. Tweedle,
2 B. C. C. 107, and by Lord Alvan-
ley, in Wood v. Huntingford, 3
Vesey, 128 ; still, its good sense is
its sufficient vindication, and com-
mends it to our acceptance. Nor
is the doctrine of that case desti-
tute of support from authorities
of high respectability, as may be
seen by consulting Billinghurst v.
Walker, 2 B. C. C. 608 ; Cope v.
Cope, 2 Salk. 449 ; 2 Ch. Ca. 5 ;
Pochley v. Pochley, 1 Vern. 36 ;
King v. King, 3 P. W. 360 ; Gal-
ton V. Hancock, 2 Atk. 436 ; Bob-
inson v. Gee, 1 Vesey, 251 ;
Phillips V. Phillips, 2 Bro. C. 273 ;

344

MARSHALLINd ASSETS.

Johnson v. Milkrop, 2 Vern. 112 ;
Balsh V. Hyarm, 3 P. W. 455."

" If then, Hoff, in Ms purchase of
Reynolds, made himself liable to
the mortigagee in any form of ac-
tion, how can we hesitate to call
the mortgage his debt ? It is of
no consequence that the mortgagee
was not a party to the dealings
between Hoff and Reynolds, for it
is a rudimental principle that a
party may sue on a promise made
on sufficient consideration for his
use and benefit, though it be made
to another and not to himself."

This decision was followed in
Thompson v. Thompson, 4 Ohio,
N. S. 333, and Lennig's Estate,
2 P. P. Smith, 135. In the case
last cited, the testator entered
into a written contract for the
purchase of land, which fixed the
price at $51,000, including two
mortgages, one for $12,000, and
one for $25,000. The property
■was subsequently conveyed, sub-
ject to the payment of the mort-
gagee. These were recited as be-
ing part of the consideration, and
the receipt at the foot of the deed
was for $20,000, " which, with the
assumption of the mortgages, is
the full consideration, $51,000,
above mentioned." It was held,
that the mortgage debt became
the purchaser's, and was a charge
upon his personal estate.

In Campbell v. Shrum, 3 Watts,
60, a contract under seal, by which
Shrum agreed to sell and cf nvey a
tract of land to Campbell " under
and subject to the payment of the
purchase-money, and interest," due
to a former owner, from whom
Shrum had bought, was read as a

covenant on which an action
might be brought in Shrum's
name for the use of the person
who was equitably entitled to the
money. The court said that it
was not an agreement to indem-
nify, but an absolute promise to
pay a sum certain, which Shrum
might enforce without waiting
until he was sued by the original
vendor. But the weight of au-
thority seems to be that the ac-
ceptance of a deed reciting that
the property is conveyed, subject
to a mortgage or other incum-
brance, implies an agreement to
indemnify the grantor, but does not
enure as an undertaking to pay
the debt, unless the amount is in-
cluded in the consideration, and
retained by the vendee as so much
money belonging to the incum-
brancer ; see Woodward's Appeal,

2 Wright, 322; Blank y. German,
5 W. & S. 42 : Barnet v. Lynch,
5 B. & 0. 589 ; Walker v. Phy-
sick, 5 Barr, 193 ; Keim v. Robe-
son, 11 Harris, 456; Trevor v.
Perkins, 5 Wharton, 244 ; War-
ing V. Ward, 1 Vesey, 331.

In M'Lenahan v. M'Lenahan,

3 C. E. Green, 101, an opposite
conclusion was deduced from pre-
mises which were nearly the same.
The premises had been conveyed
to the intestate by a deed reciting
that they were subject to a mort-
gage, and the amount of the mort-
gage debt was deducted from the
consideration, and retained by the
purchaser, but there was no ex-
press covenant or agreement on
his part to discharge the mort-
gage. The heir-at-law filed a bill
to have the mortgage satisfied out

ALDRICH V. COOPER,

345

of the assets in the hands of the ad-
ministrator. The chancellor said :
"Although the personal estate is
the primary fund for the payment
of the debts of a decedent, the
rule is limited to debts created by
him, or for which he has rendered
himself personally liable, directly
and primarily. Where lands sub-
ject to a mortgage debt, not crea-
ted by the decedent, descend or
are devised, the heir or devisee
takes them cum onere, and is not
entitled to have the debt paid out
of the personal estate, unless the
decedent has directly assumed the
debt, intending to make it a charge
on his personal estate, or shall
have so directed expressly by his
will. It is not enough that he has
assumed to pay the debt, or has
rendered himself liable to be called
on directly by the creditor to pay
it. Agreeably to the judgment
of Chancellor Kent, in Cumber-
land V. Gordington, " there must
be a direct communication and
contract with the mortgagee, and
even that is not enough, unless the
dealing with the mortgagee be of
such a nature as to afford decided
evidence of an intention to shift
the primary obligation from the
real to the personal fund."

We may doubt whether suffi-
cient heed was given in this in-
stance to the principle indicated
by Chancellor Kent, in Cumber-
land V. Coddington, that where
the amount of the mortgage is
distinctly marked and separated
from the price, and by the agree-
ment between the vendor and ven-
dee, left in the hands of the latter
for the use of the mortgagee, it is

so much money due to him, and if
not paid by the vendee during his
life, should be discharged by his
executor after his decease. The
doctrine of Lord Thurlo^s in Bil-
linghurst v. Walker, 2 Brown, 604,
that if the charge is part of the
price, the personal estate is liable,
must seemingly be understood in
this sense. But such a. result will
not ensue, because the purchaser
gives a smaller sum in considera-
tion of taking the estate cum onere,
nor unless the land is sold for its
full or estimated value, and part
of the purchase-money retained
with an express or implied agree-
ment to appropriate it to the sat-
isfaction of tlie mortgage debt ;
Cumberland v. Coddington, 3
Johnson's Ch. 229, 260.

The doctrine that a covenant
with a mortgagee to pay the mort-
gage debt does not render it the
covenantor's, seems to depend on
considerations of a different kind.
If the bond originally given for the
debt still subsists, it is prima fa-
cie the principal obligation, and
the covenant merely collateral ;
Bagot V. Doughton, 1 Peere Wms.
341 ; Cumberland v. Codrington,
229, 265 ; Mason's Estate, 1 Par-
son's Eq. 129, 133; and hence, if
the covenant is enforced against
the purchaser, he may be entitled
to stand in the place of the mort-
gagee on the bond. Under these
circumstances, the purchaser is not
primarily liable for the payment
of the debt, and hence no such ob-
ligation can be predicated of his
personal assets after his decease.
Such is manifestly the rule where
land is sold clear of incumbrance

(46

MARSHALLING ASSETS.

Lnd the vendee is compelled to as-
lume a mortgage on the land in
!onseqvience of the default of the
vendor: ante, 2'72. Under these cir-
mmstances, the mortgagor is the
jrineipal debtor, the land comes
lext, and the vendee's personal es-
tate is not chargeable except in the
ast resort. The case is obviously
iifferent where the terms of the
contract of sale render it incum-
bent on the purchaser to exonerate
bhe mortgagor, by discharging the
bond, and if he then enters into a
Bovenant with the mortgagee in
pursuance of this obligation, it is
not easy to see why his personal
assets should not be accountable
for a debt which has in every sense
become his own, ante.

Whatever doubt may exist under
other circumstances, there can be
none that when the purchaser gives
a bond or covenant which is ac-
cepted in satisfaction of the origi-
nal obligation, the debt is his, and
must be paid as such b3' his execu-
tors ; Gould V. Winthrop, 5 Rhode
Island, 319; see ManselVs Estate.

The authorities concur that here,
as in other cases, it belongs to the
testa,tor to determine what dispo-
sition shall be made of his estate,
and if the will discloses a plain in-
tention that a mortgage debt con-
tracted by a former owner shall be
discharged out of the personal as-
setts, it will be carried into effect ;
Andrews v. Bishop, 5 Allen, 490 ;
Thompson v. Thompson, 4 Ohio,
N. S. 333.

The land is now the primary fund
by statute in England and New
York, for the payment of debts
secured by mortgage. See Sogers

V. Rogers, 1 Paige, Oh. 188 ; vol. 1,
909 ; Wright v. Holhrook, 32 New
York, 581.

But this rule does not extend in
New York to a vendor's lien for
unpaid pnrchase-money, and the
h^ir or devisee of the vendee may
consequently require the executor
to pay the amount due on the con-
tract of sale ; Wright v. Holhrooh.

Legacies when Charged on
Land.

The personal estate is not only
the primary, but prima facie the
exclusive fund for the payment of
legacies, and this conclusion can-
not be repelled bj' showing that
the testator had no personal estate
when the will was executed, and
must therefore have intended that
the legacies should come out of
the real estate. Where one dies
without leaving sufficient personal
estate for the payment of his be-
quests, they are adeemed wholly
or pro tanto, unless there is some-
thing more than the mere gift of
the bequest to denote an intention
that it should be paid out of the
land. Legacies may, nevertheless,
like debts, be charged on the real
estate, by any language which suf-
ficiently denotes that such is the
testator's design, because the prop-
erty is his, and it belongs to him
to say what disposition shall be
made of it after his death. The
question confessedlj'^ is what the
testator intended, but to this his
will must be the guide, and the
courts will not impute an intention
which he has not expressed to dis-
pose of the real estate, because an
intention to dispose of the personal
estate is expressed, and will be

ALDRTCH V. COOPER,

347

abortive unless the legacy is paid
out of the land. In Lupton v.
Lupton, 2 Johnson's Ch. 618,
Chancellor Kent observed : " The
real estate is not as of course
charged with the paj'ment of lega-
cies. It is never charged unless
the testator intended it should be,
and that intention must be either
expressly declared, or fairly or
satisfactorily inferrible from the
language and dispositions of the
will." The remarks of Rainy, J.,
in Clyde v. Simpson, 4 Ohio, N. S.
445, are to the same effect, and
that there must be a clearer mani-
festation of intention to impose
a charge of legacies than of debts.
Still it is not requisite that the in-
tention to create the charge should
be declared in terms, and it may
be deduced inferrentially from the
general tenor of the will, or a com-
parison of two or more clauses
which would not warrant such an
inference, if they were consid-
ered separately; Kelsey v. Deyo,
3 Cowen, 133 ; Leavett v. Wooster,
16 New Hampshire, 364 ; Glery's
Appeal, 11 Casey, 54.

It is said in Hill on Trustees,
360, that "when a testator gives
several legacies, and then, without
creating any express trust for their
payment, makes a general residu-
ary disposition of the whole estate,
blending the realty and personalty
together in one fund, the real es-
tate will be charged with the laga-
cies; for in such a case the ' resi-
due ' can only mean what remains
after satisfying the previous gifts ;"
see Mirehouse v. Scaife, 3 Mylne
& Craig, 690 ; and Lewis v. Dar-

ling, 16 Howard, GO, where the
rule as thus stated was adopted by
the Supreme Court of the United
States.

The rule is generally recognized
in the United States, although the
authorities differ as to its extent,
and the grounds on which it rests ;
Lewis V. Darling, 16 Howard, 60 ;
Gallagher's Appeal, 12 Wright,
211 ; Becker v. Kehr, 13 Id. 223 ;
M'Glaughlin v. M' Glaiighlin, 12
Harris, 20 ; Buckley v. Buckley,
11 Barb. 43, 11 ; ShuUers v. John-
son, 38 Id. 80 ; Carter v. Balfour,
19 Alabama, 815 ; Derby v. Derby,
4 Rhode Island, 414, 431 ; Clyde
V. Simpson, 4 Ohio, N. S. 445,
459; Bane v. Beckwith, 14 Id.
505. In Lupton v. Lupton, the
testator, after making a specific
devise, and giving various pecu-
niarjr legacies, bequeathed all the
rest and residue of his real and
personal property ; and it was held
that there was no sufficient reason
for inferring that the legacies were
charged on the land. The chan-
cellor said, that " if a residuary
clause created such a charge, the
charge would exist in almost
every case ; for it is the usual
clause, and a kind of formula in
wills. It means only when taken
distributively, reddendo singula
singulus, that the rest of the per-
sonal estate, not before bequeathed
is given to the residuary legatees,
and that the remainder of the real
estate, not before devised, is in
like manner disposed of. It means
that the testator does not intend
to die intestate as to any part of
his property, and it generally

MARSHALLING ASSETS,

ians nothing more." A similar
3w was taken in Ganfield v.
->stwick, 21 Conn. 550.
The weight of authority is in
nformity with this opinion, that
ch a charge cannot be deduced
)m the association of the real
d personal estate in a residuary

general bequest, without some
her evidence that the devisee is
ly to have what, if anything,
ly remain after the debts and
jacies have been paid out of
e land ; see Swift v. Edwn, 5
)nn. 531 ; Oridley v. Andrews,

Id. 1 ; Stevens v. Grigg, 10
:11. & J. 143. An intention
charge the realty may be indi-
ted by declaring that the debts
d legacies shall " first be paid,"
d then bequeathing the rest and
sidue of the estate, or by a de-
se of the rest and residue after
e payment of debts and legacies ;
eynolds v. Beynolds, 16 New
ork ; Buckley v. Buckley ; but
it from the gift of a pecuniary
gacy followed by such a devise,
iless it is the only one, and the
.11 contains no other disposition
' the real estate.

Agreeably to this view of the
w, it is essential to the applica-
jn of the rule that the bequest
ould be in terms residuary, and
at it should not be preceded by
devise of any portion of the real
tate. It must be in terms resi-
lary, for else it will not sufii-
ently appear that the legacies
e to be subtracted from the
nd ; Beynolds v. Beynolds 1 6
ew York, 25*7 ; although the sub-
itution of an equivalent word
r "residue" will not vary the

result ; Eafferty v. Clarke, 1 1
Bradford, 1T3; and in The
Church V. Wachter, 42 Barb. 43,
a pecuniary bequest followed by
a devise of the " balance " of
the estate, was held to render
the legacy a charge on the land.
The residuary bequest must em-
brace all the real estate, be
cause where the testator makes a
partial devise, and then gives the
residue, he will be supposed to
intend that portion of the land
which has not been already given,
and not what will remain after
land has been appropriated to the
payment of the debts and lega-
cies; Faxon v. Potts, 2 Green's
Ch. 313; Myers v. Eddy, 42
Barb. 26 ; Oridley v, Andrews,
8 Conn. 5.

In Reynolds v. Reynolds, the
testator bequeathed a legacy of
$1,200 to a son, and directed that
it should be paid within one year
after his decease without saying
by whom, or out of what fund.
He then devised all his real and
personal estate to his other sons,
and made them his executors.
The court held, that as the devise
was general, and the direction to
pay the legacies was not addressed
to the executors, the will did not
contain anything to charge the
land.

The courts have, notwithstand-
ing, held, in other instances, that
blending the real and personal es-
tate in a residuary bequest; indi-
cates that both are to stand at the
same level and contribute equally
to debts and legacies, although it
does not appear from the bequest
itself, or from the general tenor, of

ALDKICH V. COOPER.

349

the will, that what the bequest re-
fers to is that residue which will
subsist after all the pecuniary de-
mands on the estate are satisfied.
See Nichols v. Posllethwaife, 2
Dallas, ■ 131 ; Hassenclever v.
Tucker, 2 Binney, 525 ; Witman
V. Norton, 6 Binney, 395 ; M'-
Lanahan v. Wynant, 1 Penna. R.
Ill ; Downman v. Bust, 6 Rand.
581; M'Glaughlin v. M'Glaugh-
lin, 12 Harris; Lewis v. Darling,
16 Howard, 60 ; Adams v. Brack-
ed, 5 Metcalf, 289 ; Wallace v.
Wallace, 3 Foster, 149 ; Tracy v.
Tracy, 15 Barbour, 503 ; Galla-
gher's Appeal, 12 Wright, 211;
Becker v. Kehr, 13 Id. 223. Such,
at least, is the language held in
many of the cases, although it
will be found on examination that
most of them are within the rule
as deduced above.

The authorities may be classed
under three heads. Agreeably to
the cases in New York and Con-
necticut, a pecuniary bequest, fol-
lowed by a devise of the realty, or
of the real and personal estate, is
not impliedly charged on the land,
unless it appear from the will that
while the devise is residuary in
terms, it would be in effect a gift
of all the testatator's real estate, if
it were not subject to the legacies.
On this condition a charge will be
implied, in order that each word
may have its appropriate effect.
See Gridley v. Andrews, 8 Conn.
1 ; Canfield v. Bostwick, 21 Id.
550 ; Lupton v. Lupton, 2 John-
son Ch. 418 ; Myers v. Eddy, 4Y
Barb. 263 ; Shutters v. Johnson,
38 Id. 80 ; Beynolds v. Beynolds,

16 New York, 25T ; Bafferty v.
Clark, 1 Bradford, 413. The rule
as thus defined, does not include
any case where the devise is not
possessedly residuary, or of so
much only as has not been already
disposed of by the will ; Beynolds
V. Beynolds, 16 New York, 257,
and excludes cases where a residu-
ary devise of the real and personal
estate is preceded by a partial de-
vise of the land. See Myers v.
Eddy ; Johnson v. Shutters. The
case of Tracy v. Tracy, 15 Barb.
503, may be reconciled on this
ground -with Lupton v. Lupton, &\-
though the point was not adverted
to in either instance.

On the other hand, it is well
settled in Pennsylvania, and as it
would seem, in Massachusetts, that
where the real and personal estate
are blended in a gift to the same
person, which though not residuary,
is so worded as to render them one
fund, it will be inferred, that what-
ever is a charge on the personal
is also intended to be a charge on
the real assets, and the land will
be liable both to the debts and
legacies ; Adams v. Brackett, 5
Metcalf, 280, 282 ; Tucker v. Eas-
senclever, 3 Yeates, 294 ; 2 Binnej',
525; Fury's Appeal, 19 P. F.
Smith, 113 ; Snyder v. Warhasse,
3 Stockton, 463, 413; McLena-
chanv McLenachan, 1 Penrose &
Watts, 96 ; Towers' Appropria-
tion, 9 W. & S. 103 ; Melton's Ap-
peal, 10 Wright, 163. See Elliott
V. Garter, 9 Grattan, 541. But
such a charge will not result from
distinct or separate bequests of
the real and personal estate, al-

50

MARSHALLING ASSETS.

hough contained in tlie same
lause ; Adavis v. Brackett, 5 Met-
alf, 282.

An intermediate view prevails
a New Jersey, where the union
if real and personal property
Q the same devise is evidence
if an intention to charge the
and with debts and legacies,
Thich though not sufficient if
tan ding alone, may amount to
)roof if corroborated by other
ireumstances, such as the mani-
est inadequacy of the personal
istate, and the duty of the testator
fO provide for a wife or child who
vould otherwise be without the
neans of support. See vol. 1,
lotes to Ancaster v. Mayer ; Van
Winkle V. Van Houton, 2 Green
3h. 1Y2; Snyder v. Warbasse, 3
Stockton, 463, 413 ; Leigh v. Sav-
'dge, 1 C. E. Green, 125 ; Corwine
f. Corwine, 8 C. E. Green, 368 ;
Dey V. Dey, 4 Id. 137 ; Massaker
V. Maasaker, 2 Beasley, 264.

It has been held, said Chan-
;ellor Zabriskie, in Dey v. Dey,
n several - cases in the English
Court of Chancery, " that a gift of
ill the residue and remainder of
"eal and personal estate in a will
;hat has given pecuniary legacies,
iharges such legacies on the real es-
tate and authorizes the executors
to sell it for that purpose ; Hansel
v. Hassel, 2 Dick. 527 ; Newma v.
Johnaton, 1 Vernon, 45 ; TroU v.
Vernon, 2 Vernon, 108 ; Cole v.
Turner, 4 Euss. 316 ; Mirehouse
V. Scaife, 2 Mylne & C. 695;
Bench v. Biles, 4 Madd. 181;
Brundell v. Boughton, 2 Atk. 268.

There are other cases in the
same courts, in which it has been

held, that a mere gift of the resi-
due of the real and personal estate,
after giving legacies, will not make
the legacies a charge upon the real
estate ; Davis v. Gardiner, 1 P.
Wms. 181 ; Keeling v. Brown, 5
Ves. 358. Chancellor Kent, in
Lupton V. Lupton, 2 John. Ch.
Rep. 614, held, that such devises
did not charge legacies upon real
estate.

In Bafferty v. Clark, 1 Bradf.
413, where the real and personal
estate were blended in one fund,
and the words not hereinbefore
disposed of, were added, these
words were iield sufficient to
charge the land with legacies.

In this court, in the case of Van
Winkle v. Van Houten, 2 Green's
Ch. Rep. 112, Chancellor Vroom
held that a general residuary clause
alone was not full evidence of the
testator's intention to charge the
legacies on the land, but that it
was some evidence, and in connec-
tion with some other circumstances
in the will, and extrinsic to it, he
decided it to be sufficient to charge
the lands. In Paxson v. Potts'
Adm'rs, lb. 313, the same chancel-
lor held that a general gift to tes-
tator's two sons, of all his real and
personal estate, except the por-
tions mentioned in the second aud
third items of tlie will, which had
given pecuniary and specific lega-
cies, and devised real estate, was
not sufficient to charge the real
estate with the legacies, although
the two sons were executors in the
will. He held, that the blending
of the real and personal estate in
the residuary gift was not suffi-
cient, and distinguished this from

ALDKIOH V. COOPER.

351

cases in which the real and per-
sonal estate had been blended into
one fund for the other purposes
of the will."

In Legh v. Savidge, 1 M'Carter,
124, the testator gave his wife
$2,000 and also his homstead for
life, and gave other legacies
amounting to $4,150, and directed
that at the death of his wife, the
homestead should be sold, and the
money divided between four lega-
tees named. By a subsequent
clause, he appointed two execu-
tors, " investing them with all
power necessary to execute that
ample trust." The personal es-
tate was insufficient to pay tlie
legacies, and the testator was an
alien, having no inheritable blood,
whose land would escheat to the
State, if it did not go to pay the
legacies, and it was determined
that these circumstances were as a
whole enough to justify an infer-
ence that he intended to charge
the land. So in Bey v. Dey, 4 C.
E. Green, 131, a gift of all the
residue of the estate, not herein-
before disposed of, would not have
sufficed to render the pecuniary
legacies a charge on the land, if
the testator's personal property
had been adequate to pay them
when he made the will, but as this
was not the case, it might reasona-
bly be presumed that he intended
tliat the deficit should be supplied
from the real estate. See vol. 1,
930.

Where land is devised to one,
who by the same or another clause
of the will is directed to pay a
legacy, or where a devise is made
on condition, that such paymen:j

shall be made by the devisee, the
legacy will not merely be a charge
upon, but primarily payable out
of the land devised ; Harris v. Fly,
4 Paige, 421 ; Auhry v. Middleton,
2 Eq. Cases, Abr. 479 ; Simpson
V. Clyde, 4 Ohio, N. S. 445. Such
a purpose appears indisputably
where the will is express, that the
legacy shall be paid out of the
land ; Loomis' Appeals, 10 Barr,
SST ; HallowelVs Estate, 11 Harris,
223; Hoover v. Hoover, 5 Barr,
351 ; Swope^s Appeal, 8 Casey, 58,
and will be implied from a devise of
the land to a person who is directed
to pay the legacy ; Cox v. Gorken-
dall, 2 Beasley, 138 ; Van Winkle
V. Van Houton, 2 Green Ch. 132 ;
Harris v. Fly ; Aubry v. Middle-
ton. It does not matter as it re-
gards the application of this rule,
that the devisee is also an execu-
tor, and it would be incumbent on
him to pay the legacy although
no such direction had been given ;
Simpson v. Clyde ; and in the case
last cited the court held, that the
burden went with the land into the
hands of a purchaser with notice,
and might be enforced against him.

In Cox V. Corkendall, the testa-
tor after bequeathing various
legacies, and directing that they
should be paid out of his estate,
devised all his real and personal
property remaining after the pay-
ment of his debts, to his sons whom
he also named as his executors,
and it was held, that the legacies
were charged on the land.

A general direction that the
legacies shall be paid without say-
ing by whom, followed by a devise
to the executor for his own use.

852

MARSHALLING ASSETS.

and not in his official capacity,
does not create a charge on the
real estate ; Reynolds v. Reynolds^
10 New York, 257. '

It is as true with regard to
legacies as it is of debts, that
charging the realty does not ex-
onerate the personalty which still
remains the primary fund, and
must be exhausted before recourse
is had to the land ; Hoes v. Van
Hoesen, 1 Comstock, 120; Hoye
T. Brewer, 3 Gill & Johnson, 153 ;
Ooff's Appeal, 9 Wright, 319;
Towner v. Tooly, 38 Barb. 598.
If the personal estate is sufficient
to pay tbe debts and legacies, the
land is discharged, and the fraud
ornegligenceof the executor in mis-
appropriating the assets, will not
vary the rule, or entitle the lega-
tees and creditors to be indemnified
out of the real estate ; Sims v.
Sims, 2 Stockton Ch. 158 ; Ha7i-
nalVs Appeal, t Casey, St ;
Barr v. Keller, 3 Grant, 143. The
subject is, nevertheless, one over
which the testator has the entire
control, and the real estate may be
required to contribute equally, or
rendered the primary or exclusive
fund by an express or im|>lied di-
rection to that effect in the will.
See Halliday v. Sornerville, 3
Penna. 653 ; Hoover v. Hoover, 5
Barr, 351 ; Elliott v. Carter, 9
Grattan, 541 ; Glery's Appeal, 11
Casey, 54. Thus, where land is
devised, subject to the payment of
a sum of money, and these are the
only words of gift to the legatee,
the sole recourse is to the land ;
see Hoover v. Hoover. In Clery's
Appeal, the testator bequeathed
various legacies, to be paid after

the decease of his wife, devised his
real estate to her for life, and gave
her all the rest and residue of his
personal estate. The court held
that the legacies were primarily
payable out of the reversionary
interest in the real estate, because
a different interpretation would
postpone the settlement of per-
sonal estate until after the decease
of the widow.

Whether land which is blended
with the personal estate in a be-
quest, must contribute equally, or
only in case the personal estate
proves insufficient, is not clear
under the authorities ; see Lewis
V. Darling, 16 Howard, 10 ; Buck-
ley V. Buckley, 11 Barb. 43 ; Has-
sencleer v. Tucker, 2 Binney, 525,
In Lewis v. Barling, the judges
seems to have inclined to the
former view, but the question can
hardly be said to have been before
the court, because the defendant
was equally answerable in either
aspect.

In general, the amount of the
testator's personal property, or its
sufficiency for the payment of
debts and legacies cannot be taken
into view, in determining whether
they shall be thrown on the land,
or in wliat order legacies shall
rank as among themselves, vol. 1, '
930. It has, notwithstanding,
been held, that one who bequeaths
all his personal estate specifically,
and then gives a general pecuniary
legacy, will be presumed to have
meant that it should be payable
out of the specific bequests, be-
cause the legatee would otherwise
be mocked ; Sayer v. Sayer, Prec.
in Ch. 393 ; Biddle v. Garraway,

SILK V. PRIME. 353

6 Jones Eq. 194. But the 6 Jones Eq. 95, 104. Where, how
weight of authority seems to be ever, the testator makes various
that such an inference cannot be specific bequests, which together
drawn from a specific bequest of constitute the bulk of his estate,
the greater part of the personal and then bequeaths a pecuniary-
property, although followed by a legacy out of his estate, it may be
pecuniary legacy, which the re- regarded as demonstrative, and a
maining assets are not adequate to charge on the speciiic bequests.
pay. See White v. Beatty, 1 Dev. See Biddle v. Garraway, 6 Jones
Eq. 8T, 320 ; Biddle v. Garraway, Eq. 95.

*SILK V. PRIME.1 [*111J

16 AND 17 .JUNE, 1766.— MARCH 8, 1768.

REPORTED 1 BED. 0. C. 138, NOTE.

Equitable Assets.] — A devise of lands for payment of, or charged
with, debts, although the per'sons to whom they are devised, or who
are directed to sell them, are executors, makes these lands assets in
equity, to be distributed among creditors pari passu.

Christopher Thomson, by his will, dated 27th December, 1759,
gave specific parts of his personal estate to his wife and two daugh-
ters ; and after reciting that he had, previously to his intermar-
riage with his wife, settled the reversion of his farm-house, and
lands, and premises in Outnewton, in the county of York, after
the decease of his mother, to the use of his wife for life, in case
she should survive him, with remainders over, and that the
mother was then living ; therefore he gave to his said wife, in
case of his death in the lifetime of his mother, an annuity of 601.
during the mother's life, to be paid by his executors, and he
charged his messuages and premises wherein he dwelt, and his
messuage, staith, and premises in the High street, in Kingstou-
upon-Hull, and all his estate there, with the payment thereof;
and declared, that, on the death of his mother, the annuity should
cease. And he devised all his lands, and premises purchased by
him in Outnewton, to his mother, her heirs, and assigns; and he
ordered and directed that all his just debts should be paid ; and in
case his personal estate should, on account of any losses, be ren-
dered not sufficient to pay all his just debts, he charged all his
messuages, and premises, and real estate whatever (except the lands
iu Outnewton, settled on his marriage, and the lands devised
*to his mother), with the payment of all his just debts. And r^iio-i
in case his personal estate (save what he had thereby given ■- -■
to his wife and daughters) should fall short in payment of all his

1 S. C, 1 Dick. 384.
VOL. II 23

354 EQUITABLK ASSETS.

just debts, he directed that the defendants Prime and Mozon, or the
survivor of them., or his heirs, should sell all his messuages- and estate
in Kingston-vpon-HuU, charged as aforesaid, with his messuages
in Wincomely, and his close in Beverley, and all other his real
estate (except as aforesaid), or such other part or parts thereof as
should, with his personal estate, be sufficient to pay all his just
debts, and to apply the money arising therefrom, together with
the money arising from his personal estate, for the payment of
all his just debts. He gave all the surplus money arising as well
from the sale of all or any part of his real estate, as also from his
personal estate, to his wite and two daughters, and devised to
them all his estate which should not be sold for payment of his
debts, and appointed Pnrne aiid Moxon executors.

This cause was first heard at the Rolls, 16th and 17th June,
3766,' when the late Sir Thomas Sewel, M. R., determined that
the assets arising trom the sale of the estate were to be considered
as equitable assets, upon the ground that the devise was to the
executors and their heirs, observing, at the same time, that it
would be otherwise if the devise had been merely to the execu-
tors. He said, by this devise the descent was broken at law, and
the only special circumstance was, that of the trustees and their
heirs taking the real together with the personal estate. From
this decree there was an appeal to the Lord Chancellor, who, on
the 8th of March, 1768, affirmed the same, and delivered a very
elaborate argument, to the following purport, of which the re-
porter^ has been so fortunate as to obtain a very accurate note.

Lord Chancellor Camden. — "When this appeal was argued, I
thought the question depended so much upon the general doctrine
of legal and equitable assets, that I desired time to look into the
r*i 1 9-| cases, to see what general ^rules had been established upon
'- -^ that subject; for all doubtful points are decided by an ap-
plication of general principles to the particular case.

Where trustees for the payment of debts are made executors,
the printed cases had ruled the assets to be legal.^ This caused
me to doubt, because I had aKvays understood the doctrine of
this Court was the reverse, and, therefore, I thought it necessary
to look back to the origin of this business, and to fix the principle.

Where an estate is devised to trustees for the payment of debts
generally, it has long been the constant practice of the court to
pay all the debts pari passu. This is declared in the case of
Wolestoncrqft v. Long, 1 Ch. Ca. 32. And the same is again laid
down in Anon., 2 Ch. Ca. 54.

As the money, in these cases, never reaches the hands of the
executors, no action lay : and the creditor was obliged to come
into this Court for satisfaction. Where upon equity, not being
tied down to the rule of law, introduced a new method of admin-
istration. And seeing the testator had made no distinction be-

' See the decree, 2 Coll. 509. ^ jir. Brown.

* These cases, it will be seen, are overruled.

SILK.V. PRIME. 355

tween the difference of securities given for the payment of debts,
the Court conceived that the testator meant to do equal justice
to all his creditors. Nor did the Court, in this respect do any
injury to specialty creditors. For, though real estates are assets
at law, to pay such debts, yet the creditor might be defeated by
the debtor's will, or the heir's alienation. So that, where the will
had set aside the law, equity would have forgot its own principle
of equality, by giving a priority, which the testator had not done ;
— all debts being equal in conscience. Upon this ground, the Stat-
ute of Fraudulent Devises' allowed devises for the payment of
debts to be good, though the act annulled every other devise to
the prejudice of specialty creditors. This, I consider, as a Par-
liamentary approbation of equitable assets, which, standing as it
does upon such ground of justice, the testator's intention, the rule
of equality, and the sanction of the legislature, *ought r^nii^-i
always to preponderate, in a doubtful case ; and Sir Joseph ^ J
Jekyll's opinion, in Cox's case, 3 P. Wms. 3^4, should be always
remembered, who said, " he would always do his utmost to ex-
tend the rule."

Where the trustee is not executor, the case is clear.

Where the land is charged with the debts it is clear likewise.^
But, where the testator put the trust into the executor's hands,
there was a considerable doubt how to distinguish the capacities
of the two characters ; as executor, the assets were legal ; as trus-
tee, they were equitable.

The law had determined, that where the land was devised to
be sold by executors, or devised to executors to be sold, in both
cases the assets were legal. In this respect, the law made no dif-
ference between the interest and the power, and that is evident.
Any person who will peruse Co. Litt. 112 b., 113 a., with any
attention, will be of that opinion, and all the cases in Roll. Abr.
(tit. " Power and Interest"), under that head, speak the same lan-
guage.

These kind of devises had been so frequent at law, and the de-
termination so unitorm, that they seemed, for a time, to have
overpowered the Courts of equity ; for I find that almost all the
printed oases followed this rule, and made the assets legal.

Bo is Girling v. Lee, 1 Vern. bS ; Anon., 2 Vern, 133; Greaves
and Powell, 2 Vern. 248. Two strong cases m Prec. Ch.; Cutter-
back V. iSmith, Prec. (Jh. 127 ; Bickham v. Freeman, Prec. Ch. 186 ;
and Lord Masham v. Harding, iiunb. 339.

Lord King, in the case ot Walker and Meager, Mos. 204,' which
I don't well understand, avoided the point.

These authorities did perplex me exceedingly, for T had, all my
time, taken it for granted that the rule here was otherwise. At
last i tind this note in Mr. Tracey's book, Lewin v. Okley, 2 Atk.
50, July 26th, 1740: — "Devise to trustees for payment of debts,

1 3 & 4 Win.& M. c. 14.

2 Bailey v. Elkins, 7 Ves. 819 ; Shiphard v. Lutwidge, 8 Yes. 26.

3 a. v., a P. Wms. 050.

356 EQUITABLE ASSETS.

and the same persons are made executors. The assets, said the
r*ll51 ^""''^ shall, notwithstanding, be equitable and not *legal.
'- -^ There are cases in Vernon where it is held, that debts in
such cases shall be paid in a course of administration, but the
modern resolutions have been otherwise."

I sent to the Register's book, and find that was the very point
of the cause ; and, upon the Master's report, Lord Hard wi eke de-
termined, that the simple contract and the specialty debts should
be paid pari passu. The words of the will were: Testator devised
his estate to A. and B. and their heirs, in trust to sell the same,
and thereout, in the first place, to pay his debts, and appointed
them executors. And now, I think, the whole rule is overthrown,
and that, wherever the land itsdf is devised to the same persons, who
are executors, the assets will be equitable.

And I hold the case to be the same whenever the land is de-
vised to them or to them and their heirs ; for in both cases they
are equitable trustees. The descent is broken/ and the specialty
creditors have lost their fund.

And I can hardly now suggest a case where the assets would
be legal, but where the executors had a naked power to sell qua
executors.^

What I have said shows that this Court has justly a partiality
and predilection to equitable assets, which ought to turn the scale
in all cases where the matter hangs in equal balance.

This disposition is, therefore, not improper, though it must be
admitted, that, in the present case, the trustees and executors
have no more than a Uiiked power; for nothing is devised to
them, and, therefore, the doctrine I have laid down is not directly
applicable to this case; but two rules are obtained.

1st. It is a good rule of expounding wills, to make them speak
in favour of equitable assets, if it may be done.

2nd. That, if you can lodge the assets in the hands of the trus-
tees, the Court will never put them in the hands of the executors,
and when one person is invested with both characters, the trustee
shall be preferred.
r*llfi"l *To come to the case : —

'- -' ] St. The testator's will does most emphatically direct the
pajment of all his just debts.

1 can never think, that a man who does, repeatedly, and so
anxiously, provide for the payment of all, could ever mean by
legal preference to pay some, and leave the rest unpaid.

2nd. The power is lodged, not in executors solely, but in them
or their heirs ; and it is clear that the money could never be assets
in the hands of the executors' heir, nor could the creditor ever
maintain his action against such heir. Nor is it any answer to

' It would be more accurate to say, that it must appear upon the will ihat (A«
testator meant the descent to be bi'okcn ; per Lord Eldon, 7 Ves. 323. It is,
however, now clearly immaterial whether the descent be broken or not. See
note to this case, post.

2 liven in this case the assets would be equitable. See note, post.

SILK V. PRIME. 357

this objection, to say, that the word heir is inserted by mistake,
or to be resembled to those cases where personal estate is given
to a man and his heirs, or real estate to a man and his executors.
In those cases the subject-matter of the devise points out the
proper succession, and the literal will is nonsense ; but here the
word heirs has a useful and proper meaning, for it converts the
executor into a trustee, and makes the assets equitable, which is
a favourite point in this Court.

But it has been said, that the testator has here united both
funds together in the hands of his trustees and executors, and
therefore both must be one consolidated fund to follow the same
course of administration. For the words are, " that they shall
apply money arising from the real estate, together with the
monies arising from his personal estate, to pay, &c." The answer
is, that in all cases where the trustee and executor is one person,
the funds are consolidated in the same manner, for, out of both,
he is to pay all his debts ; but the course of administration is
different, and by that very method it is, that the Court is enabled
to pay all the debts without distinction, as far as the assets will
go, and by marshalling both kinds of assets, makes them ami-
cably combine to answer the full intention of the testator.

3rd. This is the ease of a charge upon the lands. They are
devised to the testator's wife and daughters, subject to this
charge. In this respect it is a trust, and no more is *to [-#117-1
be sold than what is necessary for this purpose. The *- -^
power then to sell is merely consequential ; the testator having
named the executor for this purpose, the Court would have coin-
pelled the devisees. Whoever sells to satisfy a charge must be
a trustee, because a charge is a trust.

To make this still clearer, the rents and profits in the hands of
the devisees are assets before the sale. Legal assets they cannot
be, for the executors have no right to receive them. They must,
therefore, be equitable assets. And if it be once admitted that
any one part of the land is equitable assets, the whole must be
the same, for the trust is one and the same trust throughout.

Decree affirmed.'

Silk V. Prime, (one of the few j udgments of Lord Camden, as Chan-
cellor, which have come down to us well reported,) is a leading author-
ity on the doctrine of equitable assets — a doctrine certainly not now so
beneficial as it was previous to the enactments rendering all lands liable
to debts by simple contract, yet still of some importance, in the admin-
istration of the estate of any person who has died previous to the 1st
of January, 1870, where there are debts both by specialty and simple
contract, and the assets are not sufficient to pay all the creditors in full •
for there it becomes necessary to determine whether the assets are legal

'See 2 Coll. 511.

358 EQUITABLE ASSETS.

or equitable, as, in the former case, specialty creditors are entitled to
priority ; in thie latter case, they will only be paid pari passu with sim-
ple contract creditors.

But now, by 32 & 33 Vict. c. 46, as will be hereafter more fully
shown, in the administration of the estate of any person who has died
on or after the 1st of January, 1870, debts by specialty and simple con-
tract are payable out of legal and equitable assets pari passu.

Distinction between Legal and Equitable Assets. — The property of a
deceased person, which is available at common law for the purpose of
satisfying his creditors, is commonly termed legal assets, and will be
applied, both at law and in equity, in the ordinary course of adminis-
tration, which gives debts of a certain nature a priority over others ;
where, however, the assets are such as are available only in a Court of
equity, they are termed equitable assets, and according to tlie well-
r*i 1 ST I'^iiowJi *maxim that equality is equity, will, after satisfying those
wlio have liens on any specific propertj', be distributed amongst
the creditors of all grades pari passu, without any regard to legal
priority.

Much difficulty has however arisen in determining the precise dis-
tinction between legal and equitable assets. The principle however
by which they may be distinguished has in a well-considered case
been furnished by Sir R. T. Kindersley, V. C. " The general
proposition," observes his Honor, " is clear enough, that when assets
may be made available in a Court of law, they are legal assets ;
and when they can only be made available through a Court of equity,
they are equitable assets. This proposition does not, however, refer to
the question whether the assets can be recovered by the executor in a
Court of law or in a Court of equity. The distinction refers to the
remedies of the creditor, and not to the nature of the property. The
question is not whether the testator's interest was legal or equitable,
but whether a creditor of the testator, seeking to get paid out of such
assets, can obtain payment thereout from a Court of law, or can only
obtain it through a Court of equity. This, I apprehend, is the true
distinction. If a creditor brings an action at law against the executor,
and the executor pleads plene administravit, the truth of the plea must
be tried by ascertaining what assets the executor has received; and
whatever assets the Court of law, in trying that question, would charge
the executor with, must be regarded as legal assets; all others would
be equitable assets. Supposing, however, that distinction to be well
founded, there still remains the question, what property come to the
hands of the executor would a Court of law consider property to he
taken into account as assets, in trying the truth of the plea plene ad-
ministravit. I think the general principle is, that a Court of law would
treat as assets every item of property come to the hands of the execu-
tor which he has recovered, or had a right to recover, merely virtute

SILK V. PRIME. 359

ficii, i. e. which he would have had a right to recover if the testator
,d merely appointed him executor, without saying anything about his
operty or the application thereof: " Cook v. Gregson, 3 Drew. 549.
Legal Assets. — Legal assets, then, are such parts of the property of a
iceased person as may be reached or made available by an executor,
mply virtute officii.

There is no doubt that personal estate, including leasehold property,
legal assets.

Since the question whether assets are legal or equitable, depends
)on this, not whether the property of which tliey consist is legal
)r equitable, but whether an executor can recover them virtute rjfTiqi
Hcii, it has been held that an equity of redemption of a sum
' money charged on land is legal assets : Cook v. Gregson, 3 Drew.
[1.

Upon the same principle, in the recent case of Shee v. French, (3
rew. 716,) where a reversionary annuity granted to the wife of the
stator in consideration of an assignment of his business and stock in
ade, had been determined by the Lord Chancellor to be assets for pay-
ent of his creditors, the transaction coming within the statute 13 Eliz.
5, (see French v. French, 6 De G. Mac. & G. 95,) it was held by Sir
.. T. Kindersley, V. C, that such annuity was legal assets in the hands
' the wife, who was executrix, for the payment of the creditors.
What," said his Honor, " was the effect on tlie deatli of the testator ?
o doubt the annuity was payable to the wife ; but if it was not paid,
ho could sue the grantor of the annuity at law ? If the wife had not
ien herself executrix, an action on the agreement must have been
rought in the name of the executor ; the legal right to recover was in
le executrix qua executrix. It appears then to me, that what the
ord Chancellor has decided has this effect, that though the grant of
le annuity is valid, it is to be regarded as a settlement by the testator
a. his wife, and to that extent it is absolutely void, and lier beneficial
iterest is gone, as if it had never been given ; then, after the death of
le testator, the legal right to recover it vested in his executrix qua
tecutrix ; and when it has been determined that the grant of the bene-
sial interest is avoided, it remained vested in the executrix for the
aneflt of the testator's creditors." See also Mutlow v. Mutlow, 4 De
. & Jo. 539.

By the common law, real estates descended (except copyholds) ; and
y 29 Car. 2, c. 3, s. 10, trust estates in the hands of the heir of cestui que
ust, were liable as legal assets to debts by specialty, but not to debts
y simple contract. Copyholds were not liable even to specialty debts,
nd with regard to other real estates, if the heir aliened before action
lought, or if they were devised, unless for payment of debts, they were
ot liable even to specialty debts. A person, therefore, however large

360 EQUITABLE ASSETS.

his landed possessions were, might have defrauded his creditors by de-
vising his property away from his heir.

The injustice wrought by this state of the law was at length, in the
year 1691, in part remedied by 3 Will. & M. c. 14, commonly called the
Statute of Fraudulent Devises, which enacted, that devises, unless for
payment of debts, should be treated as fraudulent and void as against
specialty creditors ; that the devisee should be liable jointly with the
r*i9nT '^®''- "'^ * specialty recoverable *by action of debt ; and that, if
descended real estate were aliened by the heir, he should be lia-
ble to the extent of its value.

To Sir Samuel Romilly the country is indebted for another Act,
tending further to improve the state of the law, viz. 47 Geo. 3, c. H,
which rendered the freehold estates of a person who, at the time of his
death was subject to the bankrupt laws, liable to simple contract debts ;
Hitchon v. Bennett, 4 Madd. 180. These Acts were repealed, and,
with some modifications, re-enacted by I Will. 4, c. 4T ; but it was not
until of late years that the Legislature, conceding the full measure of
justice sought by Sir Samuel Romilly, enacted by 3 & 4 Will. 4, c. 104
(commonly called Lord Romilly's Act, which received the Royal as-
sent the 29th of August, 1833), that from and after the passing of the
Act, when any person should die seised of or entitled to any estate or
interest in land, tenements, or hereditaments, corporeal or incorporeal,
or other real estate, whether freehold, customaryhold, or copyhold,
which he shall not by his last will have charged with or devised, subject
to the payment of his debts, the same shall be assets to be administered
in Courts of equity for the payment of the just debts of such persons,
as well debts due on simple contract as on specialty ; and that the heir
or heirs-at-law, customary heir or heirs, devisee or devisees of such
debtor, shall be liable to all the same suits in equity at the suit of any
of the creditors of such debtor, whether creditors by simple contract or
by specialty, as the heir or heirs-at-law, devisee or devisees of any per-
son or persons who died seized of freehold estates, was, or were before
the passing of the Act, liable to in respect of such freehold estates, at
the suit of creditors by specialty in which the heirs were bound : Pro-
vided always, that, in the administration of assets by Courts of equity
under and by virtue of the Act, all creditors by specialty, in which the
heirs are bound, shall be paid the full amount of the debts due to them
before any of the creditors by simple contract or by specialty in which
the heirs are not bound, shall be paid any part of their demands. And
see 11 & 12 Vict. c. 87.

It has been held that this Act of itself makes the equity of redemp-
tion of a mortgage in fee, both of freeholds and copyholds, legal assets ;
Foster v. Handley, 1 Sim. N. S. 200 ; 15 Jur. 73. In re Burrell, 9 L.
R. Eq. 443.

And real estate of a person who has died without heirs is, against the

SILK V. PRIME. 361

d claiming by escheat, assets for payment of his debts, although not

irged with debts by will ; See Evans v. Brown, 5 Beav. 114 ; Hughes

Wells, 9 Hare, 749.

[t will also be observed, that *the Act retains the priority r*ioi-|

ich creditors by specialty in which the heirs were bound, had

er those in which they were not bound ; Richardson v. Jenkins, I

ew. 477.

Ordinary course of Administrator of Legal Assets After the pay-

mt of funeral and testamentary expenses (Wms. Exors. 890, 5th
it.), and of a creditor's suit, if the assets are administered in equity
'lewett V. Jessop, Jac. 240), debts will be payable at law and in equity
the assets are legal, in the following order (see Wms. Exors. 893, et
l; 5th ed.) : —

1. Debts due to the Crown by record or specialty, which are entitled
precedence over debts of whatever nature, as well of a prior as a
bsequent date : Magna Charta, c. 18 ; 2 Inst. 32 ; Littleton v. Hihhins,
■0. Eliz. 793 ; Swimb. Pt. 6, s. 16 ; Com. Dig. " Admon." (C. 2.)

2. Debts to which particular statutes give priority, as money due to
parish by overseers of the poor (17 Geo. 2, c. 38, s. 3) ; or by the
leers of a friendly society to the society. See sect. 28 of 18 & 19
ct. c. 63, which repeals and consolidates amongst former friendly
3iety acts, 33 Geo. 3, c. 54, repealed by 10 Geo. 4, c. 56 ; 4 & 5 Will,
c. 40 ; certain expenses and debts incurred and owing by an officer
soldier dying on service, 26 & 27 Vict. c. 57, sect. 4, repealing 58
so. 3, c. 73, ss. 1 & 2. See also 2 & 3 Will. 4, c. 53 ; 27 & 28 Vict.
36, as to army prize money ; debts due from a deceased treasurer or
Hector of paving commissioners under 57 Geo. 3, c. 29, s. 51.

3. Judgments in Courts of record, and decrees in equity rateablj'',
cept judgments obtained against executors which are payable accord-
j to their priorities inter se (Dolland v. Johnson, 2 Sm. & G. 301 ;
well V. Revell, 5 Ir. Ch. Rep. 284 ; Burke v. Killikelly, 1 Ir. Ch.
ip. 1) ; and judgments against executors and administrators need
t be registered in the Common Pleas, under 23 & 24 Vict. c. 38, in
ier to retain their preference in the administration of estates ; Gaunt
Taylor, 3 Man. & Gr. 886 ; Jennings v. Righy, 33 Beav. 198.

4. Recognizances and statutes.

5. Debts by special contract, as on bonds, covenants, and other in-
■uments under seal, for valuable consideration : Pinchon^s case, 9 Co.

b. As to what amounts to a specialty debt under such instruments,
i Gifford V. Manley, Ca. t. Talb. 109 ; Turner v. Wardle, 7 Sim. 80 ;
imniins v. Cummins, 3 J. & L. 64 ; Richardson v. Jenkins, 1 Drew.
7 ; Wood V. Hardisty, 2 Coll. 542; Musson v. May, 3 V. & B. 194 ;
mas V. Wright, 2 My. & K.,769 ; In re Dickson, 12 L. R. Eq. 154 ;
mrtney v. Taylor, 7 Scott, N. R. 749; 6 Man. & G. 851 ; Adey v.

362 EQUITABLE ASSETS.

Arnold, 2 De G. M. & G. 432; *Marryat v. Marryat, 28 Beav.
L J 224 ; Wynch v. Grant, 2 Drew. 312 ; Saunders v. Milsome, 2 L.
R. Eq. 5'73 ; Tates v. Jstora, 4 Q. B. 182 ; Holland v. Holland, 4 L. R.
Ch. App. 449. A debt for rent ranks in the same degree as a debt by
obligation, or other instrument under seal (Com. Dig. " Admon." (C.
2.): see also Thompson v. Thompson, 9 Price, 464, 471; Clough v.
French, 2 Coll. 2'r7; and as to arrears of rent, see Kidd v. Boone, 12
L. R. Eq. 89), except where it is claimed for lands out of England :
Vincent v. Godson, 4 De G. Mac. & G. 546 ; Barker v. Darner, Car-
thew, 182 ; and tlxe liability of a contributory to pay calls made since
a winding up, has been held to be a debt by specialty having priority
over simple contract creditors : Buck v. Robson, 10 L. R. Eq. 629.

6. Debts by simple contract, as on bills or notes, and contracts not
under seal, on verbal promises, or on promises implied at law, and
unregistered judgments which only rank pari passu with debts by simple
contract : Re Turner, 12 W. R. (V. C. W.), 337 ; Kemp v. Waddincj-
ham, 14 W. R. (Q. B.) 390 ; 23 & 24 Viet. c. 38.

In the administration, however, of the estate of any person who
should die on or after the 1st day of January, 1870, specialty and
simple contract debts are payable pari passu out of legal assets : 32 &
33 Vict. c. 46, s. 1.

7. A claim by an incumbent against the representatives of his prede-
cessor for dilapidations : Bryan v. Glay, 1 Ell. & Bl. 38 ; and see
Grampton v. Marshall, 2 I. R. Eq. 316.

8. Voluntary bonds (Ramsden v. Jackson, 1 Atk. 294); but in the
administration of assets, a voluntary bond is to be preferred to interest
upon debts not by law carrying interest, payable under the 46th Order
of August, 1841 : Garrard v. Lord Dinorben, 5 Hare, 213; but if a
voluntary bond is assigned for value at any rate in the life of the
obligor, it will in the administration of assets stand upon the same
footing as a bond originally given for value : Payne v. Mortimer, 4 De
G. &,Jo. 447,452..

As to the arrangement of priorities between simple contract credi-
tors coming in within the time limited by the advertisements in an
administration suit, and bond creditors coming in subsequently, see
Brown v. Lake, 1 De G. & Sm. 144.

Liabilities and powers of executors or administrators in paying

debts If an executor or administrator having notice of a superior

debt voluntarily pays one of an inferior nature, he is liable on a
deficiency of assets to make it good out of his own estate (Toller on
Executors, 292) ; but if he has no notice of a superior debt, he will
not be liable for paying an inferior debt first {Hawkins v. Day, 1 Amh.
160; Harman v. Harman, 2 Show. 492 ; Nosotti v. * Jefferson,
[ 123J g pg ^^ j^^ ^ g^ g^Q^ unless he do so, so soon after the death
of the person whom he represents as would afford evidence of fraud

SILK V. PRIME. 363

oiler, 192 ; Nosotti v. Jefferson, 3 De G. Jo. & S. StO ; 11 W. R. (L.
I 842). He was at common law presumed to have notice of debts of
!ord as judgments entered up against the deceased (^Littleton v. Hib-
is, Cro. Eliz. 793). To remedy this injustice, 4 & 5 Will. & Mary,
20, was passed, which enacted that no judgment which was not
dieted and entered in books kept for that purpose should have any
jference against heirs, executors, or administrators in the administra-
m of assets. And it seems that where a judgment debt was not dock-
id pursuant to the statute, it would rank only as a simple contract
bt : Hall v. Tapper, 3 B. & Ad. 655. Then came the Act for the Abo-
ion of Imprisonment for Debt (1 & 2 Vict. c. 110), which enacts that no
Igment shall by virtue of that Act affect any lands " as to purchasers,
)rtgagees, or creditors," unless and until a memorandum, in the form
jre stated, shall have been left with the Senior Master of the Com-
m Pleas. But the Act does not use the words used in the statute of
ill. & Mary, or words to that effect, namely, that it shall not until
registered, have preference against an heir, executor, or administra-
: over any other debts in the administration of assets. In that state
the law the old law remained untouched. By 2 & 3 Vict. c. 11,
ckets being put an end to, the old common law was restored, and it
,s held accordingly that an administrator had committed a devastavit
paj'ing a simple contract debt before a judgment debt, even although
had no actual notice of the latter. Fuller v. Redman, 26 Beav. 600.
lis was thought a great hardship, and accordingly after the decision
Fuller v. Bedman, Lord St. Leonards procured 23 & 24 Vict. c. 38,
?, to be passed, in order to restore the law as it existed under the 4
5 Will. & Mary, c. 20, as regards judgments against testators or
,estates : Kemp v. Waddingham, 1 L. R. (Q. B.) 355 ; 14 W. R. (Q.
) 390.

[n like manner, executors and administrators were presumed to have
tice of decrees in equity ; an executor or administrator, therefore,
o paid simple contract debts in preference to a debt due upon a de-
se obtained against the deceased, of which he had no actual notice,
s liable to pay it out of his own estate: Searle v. Lane, Freem. Ch.
ip. 104; 2 Vern. 89; Sorrell v. Carpenter, 2 P. Wms. 483. How-
jr, 23 & 24 Vict. c. 38, applies to registered decrees and orders of
! Courts of equity and bankruptcy as well as to judgments.
With regard to other debts, an executor must have actual notice
f them, otherwise he will not be liable for paying debts of an
erior degree in priority to them : Brooking v. Jennings, 1 L -^
)d. 175; Oxenhamv. Glapp, 2 B. & Ad. 312.

4.mong creditors of equal degree, an executor or administrator may
■f one in preference to another {Lyttleton v. Cross, 3 B. & C. 322) ;
may clear his debt by a sale {Hepworlh v. Heslop, 6 Hare, 561 ;
rl Vane v. Bigden, 5 Lr. Ch. App. 668, per Lord Hatherley, 0.) ; or

364 EQUITABLE ASSETS.

mortgage {Earl Vane v. Bigden, 5 Lr. Cb. App. 663) of part of the
assets.

Equitable assets. — Equitable assets are of two kinds — ^the first are
created by the act of the testator by charging or devising his land for
payment of debts. The second are such as are not attainable by tlie
executor virtute officii, and are solely available in equity.

As to the first kind of Equitable Assets. — It was held by Lord Cam-
den, in the principal case, contrary to what was formerly supposed to
be the case, that lands, although devised to executors as trustees, in
payment of debts, were equitable, and not legal assets ; and see New-
ton V. Bennet, 1 Bro. C. C. 135, 138; Lowe v. Peskett, 16 C. B. 500.

And although at one time it appears to have been considered neces-
sary that tlie descent should be broken by a devise from the heir
■{Freemoult v. Dedire, 1 P. Wms. 430 ; Plunket v. Penson, 2 Atk. 293),
It has been clearly established, that whether lands are devised to the
heir (in which case he formerly took by descent) charged with debts,
or whether they descend to him so charged, in either case they are
equitable assets ; See Ilargrave v. Tindal, 1 Bro. C. C. 136, n. ; Batson
V. Lindegreen, 2 Bro. C. 0. 94 ; Bailey v. Ekins, 1 Ves. 319, 322 ; Ship-
h.ard v. Lutividge, 8 Ves. 26. Lord Camden, in the principal case,
seems to have thought that the 'assets would be legal, where the execu-
tor had a naked power to sell qua executor. It is, however, now clearly
settled, that they would be equitable. See note by Sanders, 1 Atk.
420, and cases there cited. Boss v. Barclay, 6 Harris, 1^9, 184.

There is, however, an important distinction between an express de-
vise or appropriation of lands for the payment of debts, and a mere
charge of debts ; for, in the first case, they will be applicable in pay-
ment of debts before lands descended ; but, in the second case, they are
applicable only after the assets arising from lands expressly devised
for payment of debts, and lands descended not charged with debts,
have been exhausted: Harmood v. Oglander, 8 Ves. 124, 125; Donne
V. Lewis, 2 Bro. C. C. 257.

Where moreover there is a mere charge for payment of debts,
*the operation of the Statute of Limitation (3 & 4 Will. 4, c.
L -I 27) will not be thereby prevented ; Dickinson v. Teasdale, 1 De
G. Jo. & Sm. 52 ; 31 Beav. 511) ; but it will where there is an express
trust for that purpose. Thus in Jacquet v. Jacquet, 27 Beav. 382, a
testator charged his real estates with his debts, and devised his C. plan-
tation in trust to pay his debts. He died in 1834, and the produce aris-
ing from the sale of the plantation being in Court, it was held by Sir
J. Romilly, M. R., in the year 1859, that the creditors were not barred
as to the fund in Court, a trust having been created in their favour,
but that they were barred as to the other real estate, they having a
mere charge thereon. See also Phillippo v. Munnings, 2 My. & Cr.
309 ; Toft V. Stephenson, 7 Hare, 1 ; Francis v. Graver, 5 Haie, 89 ;

SILKV- PRIME. , 365

dge, V. Churchward, 16 Sim. 11 ; Hughes v. Kelly, 3 Dru. & War.
I ; Harrisson v. Duignan, 2 Dru. & War. 295 ; Snow v. Booth, 2 K.
r. 132 ; 8 De G. Mac. & G. 69.

L devise of part of a testator's estate for payment of debts will be
bin the benefit of the proviso in the Statute of Fraudulent Devises,
;hat part prove sufficient for the purpose ; but it will be fraudulent
I void as against specialty creditors, if it be insufficient. See Hughes
Doulbin, 2 Cox, 170, where Lord Thurlow observed, that whenever
h a case came before him, he would refer it to the Master to state to
1 whether according to the mode prescribed by the testator, the
)ts could be paid ; and if the Master told him that the debts could
i be paid by that mode, he would consider that as a fraudulent devise
;il he was controlled by the House of Lords : S. C, 2 Bro. C. C. 614.
L devise will be fraudulent if it be not for payment of all debts,
us, where R. had devised a great part of his real estate in trust for
! payment of all his debts, except such as he had contracted by being
ind as surety for H., Lord Hardwicke held, that, as the devise was
; for the payment of all the testator's debts generally, the case was
; within the benefit of the proviso of the Statute of Fraudulent De-
es : Vernon v. Vaudrey, Barnard. Ch. Rep. 280, 304. See, however,
tt V. Atkinson, Willes R. 524 ; and Richardson v. Horton, T Beav. 123.
3o, if a person devises one estate to A.'B. in fee, charged with pay-
nt of one-fifth of his debts, and another to C. D. in fee, charged
;h tlie payment of the other four-fifths, such devises are not within
i proviso of the Statute of Fraudulent Devises ; that is to say, they
! not such a provision for the payment of debts as to make the
rised estates wholly or partially equitable assets: Lyon v. Colvile, 1
!oll. 473. But a direction in a will, to pay simple contract r,|cioe"|
fore specialtj' creditors, is within the proviso in the Statute

Fraudulent Devises, the words of the proviso being satisfied by the
•ection being for the payment of all debts: Millar v. Horton, G.
lop. 45.

The remedy given to specialty creditors by 3 Will. & M. c. 14, was
Id to be confined to cases in which an action of debt lay upon specials
s securing a sum certain, due in the testator's lifetime : Wilson v.
lubley, T East, 128; Farley v. Briant, 5 N. & M. 42 ; but see Jenkins

Briant, 6 Sim. 603. This deflciencjr was supplied by 1 Will. 4, c. 47 ;
t, independently of this Act, Courts of equity held, that a charge of
bts would comprise damages for a breach of a covenant after the tes-
;or's death : Lomas v. Wright, 2 My. & K. 775 ; Morse v. Tucker, 5
ire, 79 ; Eardley v. Owen, 10 Beav. 572 ; Goope v. Cresswell, 2 L. R.
1. App. 112.

A direction that the produce of real estate shall form part of the per-
ual estate, will not in cases within the exception of the statute, cou-
rt it into legal assets. This seems to have been the opinion of Lord

366 EQUITABLE ASSETS.

Camden, in the principal case, and in Soames v. Bobinson, 1 My. & K.
500, where a testator devised his real estate to trustees and their heirs,
upon trust to sell, and after declaring his ■will to be that the clear
money arising from such sale should sink into and become part of his
personal estate, he gave and bequeathed the same, and all his stock,
crops, goods, and eflects whatsoever, to the same trustees, their execu-
tors and administrators, upon trust, after converting the same into
money, and paying all his debts, funeral and testamentary expenses, to
pay legacies, and dispose of the residue. It was held by Sir John
Leach, M. E., that this was substantially a devise of the real estate for
the payment of all debts, and was, by the 4th section of the Statute of
Fraudulent Devises, good against the specialty creditors, and converted
the produce into equitable assets. See also Shakels v. Richardson^ 2
Coll. 31.

Where, however, the sale for payment of debts is directed not by the
testator, but by the Court, although the purchase-mojiey is paid into
Court, it will be legal assets. See Lovegrove v. Cooper, 2 Sm. & Giflf.
2Y1 ; but see the remarks in Bain v. Sadler, 12 L. R. Eq. 573.

It may be remarked, that the Act of 3 & 4 Will. 4, c. 104, applies
only to estates which the testator has not charged with, or devised sub-
ject to, the payment of his debts ; the distinction, therefore, between
estates subjected to the payVnent of debts by the will of the debtor,
r*it)i7-| and estates subject to debts by the operation of law, *remained
precisely as it was before the Act. Thus, although all the real
estates of a person were by law (the specialty debts being prior to 32
& 33 Vict. c. 46, entitled to priority) liable to his debts by specialty
and simple contract, yet, if he devised them for, or charged them with,
the payment of his debts, they would still be equitable assets, and, as
such, distributable among his creditors pari passu. See Ball v. Harris,
4 My. & Cr. 268, 269, where a typographical error in Mirehouse v.
Scaife, 2 My. & Cr. 708, is corrected.

In a former edition of this work it was said, " It seems difficult to
conceive upon what principle the order in which the specialty and
simple contract creditors are to be paid should in any case now depend
upon the will of the debtor. If specialty creditors ought in justice to
be paid before simple contract creditors, wliy should it be left in his
power to put them both upon a level ? If, on the other hand, they
ought to be paid pari passu, why was it not at once so enacted, and
their position rendered independent of accident or caprice ? Under the
old law, as observed by Lord Camden, in the principal case, no injury
was done by the Court to specialty creditors ; for though real estates
were assets at law to pay such debts, yet they might then be defeated
by the debtor's will, or the heir's alienation. So that where the will set
aside the law, equity would have forgotten its own principle of equality,
by giving a priority, which the testator had not done, all debts being

SILK V. PRIME. 867

lal in conscience. Tliis reasoning, however, is not applicable under

I new l^w, where real estates, although devised, are liable to debts
;h by specialty and simple contract." 2 L. C. Eq. 3rd ed., p. 110.
je Bull V. Bull, 8 B. Monroe, 352. In M'Gandlish v. Keene, 13
attan, 615, 634, the court held on the authority of Charlton v.
nght, 12 Simons, 274, that land charged with debts by will, is equit-
e assets, although it would be liable under the statute law, if no
!h charge had been imposed.)

Recently, by 32 & 33 Vict. c. 46 (which does not extend to Scotland,)
er reciting that it was expedient to abolish the distinction which
in existed between specialty and simple contract debts of deceased
•sons, it is enacted that, " in the administration of the estate of
sry person who shall die on or after the 1st day of January, 1810, no
3t or liability of such person shall be entitled to any priority or
iference by reason merely that the same is secured by or arises under
ond, deed, or other instrument under seal, or is otherwise made or
istituted a specialty debt ; but all the creditors of such person, as

II specialty as simple contract, shall be treated as standing in equal
;ree, and be paid accordingly out of the assets of such deceased
son ; whether such assets are legal or equitable, any statute or other
' to the contrary notwithstanding : Provided always, that this act
ill not prejudice or affect any *lien, chal-ge, or other security p^, „„-,
ich any creditor may hold or be entitled to for the paj'ment

his debt :" Sect. 1.

^eal estates in the West Indies cannot, since statute 6 Geo. 2, c. Y,
I (which made real estates in the West Indies legal assets), be de-
ed so as to make them equitable assets. See Turner v. Cox, 8 Moo.
C. C. 288, overruling Charlton v. Wright, 12 Sim. 214.
Right of Retainer. — The order in which assets are administered may
affected by the right of retainer, about which a few observations
y not be misplaced, showing in what cases and in what manner it
Y be exercised. An executor or administrator among creditors of
lal degree may pay one in preference to another, and he has a right
D out of legal assets to retain for his own debt due to him from
deceased, whether it be legal (2 Wms. Ex. 936, 8th ed., citing
odward v. Lord Darcy, Plowd. 184 ; Dyer, 2 a. in marg. ; Warner
Wainford, Hob. 127 ; Bond v. Green, 1 Brownl. 75 ; S. C, Godb.
, pi. 310) or equitable (Cockcroft v. Blank, 2 P. Wms. 298 ; Franks
Jooper, 4 Ves. 763; Loomes v. Stotherd, 1 Sim. & Stu. 461); and
right of retainer for an equitable debt is recognised even at law
)skelley v. Godolphin, 'Sir T. Raym. 583 ; S. C, nom. Boskellet v.
iolphin, Skinn. 214 ; S. C, nom. Roskelley v. Godolphin, 2 Show.
; Marriott v. Thompson, Willes, 186; Ldane v. Casey, 2 Wm.
ck, 965 ; Thompson v. Thompson, 9 Price, 464, 473), except in

568 EQUITABLE ASSETS.

3ases where an account of it cannot be taken by a jury {De Tastet v.
Shaw, 1 B. & Aid. 664 ; Loane v. Casey, 2 Wm. Black. 965, 961.)

The right of retainer cannot, however, be enforced as against credi-
tors of superior degree. Com. Dig. " Admon." (C. 2), 1 Saund. 333,
aote to Hancock v. Prowd. This right will not be lost by payment of
the assets into Court in a creditor's suit {Nunn v. Barlow, 1 S. & S.
588 ; Hall v. Macdonald, 14 Sim. 1 ; but see the remarks of Sir J.
Wickens, V. C, in Bain v. Sadler, 12 L. R. Eq. 573), and will prevail
even against the plaintiff 's costs of the suit : Chissum v. Dewes, 5
Russ. 29 ; Langton v. Higgs, 5 Sim. 228 ; Tipping v. Power, 1 Hare,
105.

An administrator durante minoritate (Boskelley v. Godolphin, T.
Raym. 483, Com. Dig. " Admon." (F.) ; Franks v. Cooper, 4 Ves. 764 ;
an administrator durante dementia (Franks v. Cooper, 4 Ves. 663), an
executor of an executor {Hopton v. Dryden, Free. Ch. 180 ; Thompson
V. Grant, 1 Russ. 540, n.), or administrator {Weeks v. Gore, 3 P. Wms.
184, n.) may retain not only for their own debts, but also for that of
the infant, or lunatic, executor or administrator. But an executor of
one of several executors, one or more of whom *is still living,

r*i29i

L -■ cannot retain ; Hopton v. Dryden, Free. Ch. 181 ; nor can an
executor or administrator retain his own debt against his co-execu-
tors or co-administrators, being also creditors of the deceased {Chap-
man V. Turner, 11 Vin. Ab. 72, tit. Exors (D). 2 ; 8. C, 9 Mod. 268) ;
but he may retain out of a balance found to be due from himself and
bis co-executor to the estate {Kent v. Pickering, 2 Keen, 1).

A creditor, to whom administration is granted, may retain as against
the rightful administrator, although the letters of administration be .
afterwards repealed at the suit of the next of kin {Blackhorough v.
Davis, 1 Salk. 38), unless on taking out the letters of administration he
entered into articles to paj' debts equal in degree to his own, in equal
proportions : 2 Wms. Ex. 943, 5th ed.; and see Spicer v. James, 2 My.
& K. 387 ; Thompson v. Cooper, 1 Coll. 81.

A husband may, if executor, retain for a debt due from the testator
to his wife dum sola {Atkinson v. Rawson, 1 Mod. 208 ; 2 Mod. 51,
nom. Prince v. Rowson), and if his wife be executrix, he may retain for
a debt due by the testator to himself or to his wife dum sola : Toll. 359.

A person being representative of the creditor and debtor, has a right
to retain for the debt of the one out of the assets of the other {Burnet
V. Dixe, 1 Roll. Abr. 922, Exors. (L.) ; 2 Burdet v. Pix, 2 Brownl. 50 ;
Fryer v. Gildridge, Hob. 10 ; Thompson v. Cooper, 1 Coll. 85), and in
a recent case where the same individual was administrator of the estates
of the debtor and creditor which were being administered in Court, it
was held not only that he was entitled, but that he was bound at the in-
stance of the parties interested in the creditor's estate, to retain the

SILK V. PRIME.

369

debt out of the debtor's estate in preference to his other creditors {Fox
V. Garrett, 28 Beav. 16).

An executor, to whom jointly with his partner a debt was due by the
testator, may retain it (Barge v. Brutton, 2 Hare, 373), but if tlie exe-
cutor dies, so that the interest in the debt wholly devolves on his survi-
ving partner, the right of retainer ceases and cannot be exercised by
the representative of the executor (Burge v. Brutton, 2 Hare, 373). As
to the right of an obligee made executor to one of two joint and several
obligors to retain, see Crosse v. Cocke, 3 Keb. 116 ; Cock v. Cross, 2
Lev. 73; S. C, 2 Freem. 44, 50; 3 Bac. Ab. 10, tit. Exors. A. 9. As
to how far a surety executor of principal can retain, see Anon., Grodb.
149, pi. 194; 4 Leon. 236, pi. 362; Bathursty. De la Zouch, 2 Dick.
460. See S. C, nom. Bathurst v. De la Touche, 34 Beav. 9, n., and
Boyd.v. Brooks, 34 Beav. 7.

* As an executor or administrator may pay a debt proved to
be justly due by his testator, although barred by the Statute of ^ -*
Limitations, so he may retain for his own just debt, although barred
by the statute ; Hopkinson v. Leach, Madd. Ch. I'r. 583, 2nd ed. ;
StaJilschmidt v. Lett, 1 Sta. & Giff. 415 ; and see Sharmam v. Eudd, 4
Jur. (N. S.) 527.

Where the assets are equitable, an executor cannot retain the whole
of the debt due to him from the testator, but only a proportionable part
with the other creditors. Anon., 2 Ch. Ca. 54 ; Hopton v. Dryden,
Prec. Ch. 181. "The rule of the Court in cases of retainer," said the
Hon. J. Verney, M. R., " is, unless the party can show a legal right to
retain, we never give it to him ; if he can show a legal right, we never
take it away from him " {Chapman v. Turner, Vin. Ab. Exors. (D. 2)
pi. 2).

Where there are legal as well as equitable assets, if the executor re-
tains the legal assets in part payment of his debt, he cannot claim to be
paid a proportionate part with the other creditors out of the equitable
assets, until they have received thereout as much as he has retained out
of the legal assets : Baily v. Ploughman, Mos. 95 ; Chambers v. Har-
vest, lb. 123 ; Hall v. Kendall, lb. 328.

What amounts to a Charge of Debts.] — In order to prevent the injus-
tice which, previously to the late enactments, would have resulted to
creditors, in consequence of a testator neglecting to charge his debts
upon his real estate, Courts of equity have, by straining the ordinary
mode of construction, laid it down as a rule, that a m.ere general direc-
tion by a testator, that his debts should be paid, effectually charges them
upon his real estate. A leading case upon this subject is Legh v. Earl
of Warrington, 1 Bro. P. C. 511, Toml. ed., in which a testator com-
menced his will thus : — '' As to my worldly estate which it hath pleased
God to bestow upon me, I give and dispose thereof in manner follow-
ing: (that is to say), Imprimis, I will that all my debts which I shall
VOL. II 24

870 EQUITABLE ASSETS.

owe at the time of my decease, be discharged and paid out of my
estate ;" and he then disposed of his real and personal estate, charging
the former Tfith an annuity. It was contended, that these were merely
introductory words, and did not indicate an intention to charge the
real estate. But the House of Lords, affirming a decree of Lord King,
held the real estate to be charged ; see also Uarl of Godolphin v. Pen-
neck^ 2 Ves. 211 ; Kentish v. Kentish, 3 Bro. C. C. 257; Kightley v.
Kightley, 2 Ves. jun. 328 ; Shallcross v. Finden, 3 Ves. 138 ; Williams
v. Chitty, 3 Ves. 545 ; Clifford v. Lewis, 6 Madd. 33 ; Ball v. Harris,
8 Sim. 485: S. C, 4 My. & Cr. 264: *Shaw v. Borrer, 1 Kee.
L ^^^^J 559; Parker v. Marchant, 1 Y. & C. C. C. 290; Harding v.
Orady, 1 D. & War. 430 ; Gosling v. Garter, 1 Coll. 644.

In Clifford v. Lewis, 6 Madd. 33, Sir John Leach considered it to be
of importance that the expression with which a testator commences his
will, should import a general and primary purpose that the payment of
his debts should precede the subsequent dispositions which he makes of
his propertj-, as in Finch v. Hattersley (cited 1 Ves. 211, stated 3 Russ.
345, n.'), where the will begins, "First, I direct my debts to be pwid ;''
and in Legh v. Earl of Warrington, 1 Bro. P. C. 511, Toml. ed., " Im-
primis, I direct my debts to be paid." And see Douce v. Lady Tor-
rington, 2 My. & K. 600, and Ronalds v. Feltham, 1 T. & R. 418 ; but
in Graves v. Graves, 8 Sim. 55, the correct view appears to be taken by
Sir L. Shadwell, V. C. "I do not think," observed his Honor, "that
the charge is made to rest on the mere circumstance, that the itestator
has used the words ' imprimis,' or ' in the first place ; ' for if a testator
directs his debts to be paid, is it not, in effect, a direction that his debts
shall be paid in the first instance ?" And see Irvin v. Ironmonger, 2
Russ. & My. 531.

And even where there is no devise or mention of realty, it will,
nevertheless, in the hands of the heir be converted into equitable
assets by a general charge of debts. " I am very clearly of opinion,"
says Lord Avanley, " that wherever a testator says his debts shall be
paid, that will ride over every disposition, either as against his heir-at-
law or devisee :" Shallcross v. Finden, 3 Ves. 139.

There appear, however, to be two exceptions to the rule : first, where
the testator, after a general direction for payment of his debts, has
specified a particular fund for the purpose; "because the general
charge by implication is controlled by the specific charge made in the
subsequent part of the will : " Thomas v. Britnell, 2 Ves. 313 ; Palmer
V. Gravies, 1 Kee. 545.

But the general charge will not bei affected by a subsequent charge
on the residuary personal estate, as the presumption in favour of
charges for the benefit of creditors cannot be repelled by anything
short of clear and manifest evidence of a contrary intention: Price v.
North, 1 Ph. 85 ; Graves v. Graves,''^ Sim. 43. See also Taylor v.

SILK V. PRIME. 371

Taylor, 6 Sim. 246 ; Forster v. Thompson, 4 D. & War. 303 ; Gross v.
Kennington, 9 Beav. 150 ; Dorniay v. Borradaile, 10 Beav. 263.

An express charge, however, will not be affected by the appropria-
tion of particular lands for the purpose of paying debts {Ellison v.
Airey, 2 Ves. 568 ; Coxe v. Bassett, 3 Ves. 155) ; or a qualified
*charge in the same will {Crallan v. Oulton, 3 Beav. 1 ; Jones r^teioo-i
V. Williams, 1 Coll. 166, 160).

The second exception seems to be, where the debts are directed to be
paid by executors ; for, in that case, it will be presumed, unless land
be devised to them, that the debts are to be paid exclusively out of the
assets which come to them as executors ; Brydges v. Landen, cited 3
Ves. 550 ; 3 Russ. 345, n. ; Keeling v. Brown, 5 Ves. 359 ; Powell v.
Robins, 7 Ves. 209; Willan v. Lancaster, 3 Russ. 108; Braithwaite v.
Britain, 1 Kee, 206 ; Wisden v. Wisden, 2 Sm. & Giff. 396 ; Cook v.
Dawson, 29 Beav. 123; 3 D. G. F. & Jo. 127. Gaw v. Hoffman, 12
Grattan, 628, 634.

Where, however, the executors are devisees of the real estate, that
resumption does not arise, and the lands devised to them will be equitable
assets (Finch v. Sattersley, 3 Russ. 345, n. ; Aubrey v. Middleton, 2 Eq.
Ca. ab. 497, pi. 16 ; Alcock v. Sparhawk, 2 Vern. 228 ; Barker v. Duke
of Devonshire, 3 Mer. 310 ; Henuell v. Whitaker, 3 Russ. 343 ; Dover v.
Gregory, 10 Sim. 396, 399 ; Dormayy. Borradaile, 10 Beav. 263 ; Cross
V. Kennington, 9 Beav. 150; Harris v. Watkins, Kay, 438; Gallimore
V. Gill, 2 Sm. & Giff. 158 ; Hartland v. Murrell, 27 Beav. 204 ; over-
ruling Parker v. Fearnley, 2 S. & S. 592). Secus, where after a general
direction that the debts should be paid to the executors there is a de-
vise of real estate to one of them only (Keeling v. Brown, 5 Ves. 359 ;
Warren v. Davies, 2 My. & K. 49; Wasse v. Heslington, 3 My. & K.
495), unless the testator otherwise shows his intention that the real
estate should be charged, as were the devise to one of the executors
after a general charge of debts is made " subject as aforesaid :" Dowling
V. Hudson, 17 Beav. 248.

Where the charge of debts is a mere matter of form, inserted with-
out any view to the regulation of the enjoyment or distribution of the
testator's property, and it is manifest from the whole will, that the
testator did not intend to subject the real estate given to his executors
to debts, it will not be equitable assets : Symons v. James, 2 Y. & C. C.
C. 301. See remarks on this case in Harris v. Watkins, Kay, 447.

As to whether the expressions which are sufficient to charge real
estate with debts will also charge legacies, see Davis v. Gardiner, 2 P.
Wms. 187 ; Kightley v. Kightley, 2 Ves. jun. 328 ; Williams v. Ghitty,
3 Ves. 551 ; Keeling v. Brown, 5 Ves. 361 ; Smith v. Butler, 1 J. & L.
692; Cole v. Turner, 4 Russ. 376 ; Mirehouse v. Scaife, 2 My. & Cr.
695 ; Nyssen v. Gretton, 2 Y. & C. Exch. Ca. 222; Francis v. Cleemou;

B72 EQUITABLE ASSETS.

Kay, 435 ; Harris v. Walking, lb. 438 ; Gallimore v. Gill, 2 Sm. & Giff.
158. Ante, 346, notes to Aldrich v. Cooper.

P5j;ioq-i -^ direction to raise money for *payment of debts out of
rents and profits of real estate, will be an effectual charge of
debts within the provision of the Statute of Fraudulent Devises, as it
will authorize the sale and mortgage of the estate for that purpose. " I
bave understood it," observed Lord Eldon, " to be a settled rule, that
where a term is created for the purpose of raising money out of the
rents and profits, if the trusts of the will require that a gross sum
should be raised, the expression ' rents and profits ' will not confine the
power to the mefe annual rents, but the trustees are to raise it out of the
2state itself, by sale or mortgage : " Bootle v. Blundell, 1 Mer. 232.

A charge by a testator of debts which he has contracted, will also in-
clude those which he owes at the time of his death : Bridgeman v. Dove,
B Atli. 201 ; Brudenell v. Boughton, 2 Atk. 2H.

Where a person has a direct lien upon the land, as mortgagee or
otherwise {Wolestoncroft v. Long, 1 Ch. Ca. 32; Anon., 2 Ch. Ca. 54;
Child V. Stephens, 1 Vern. 101, 103) ; or as judgment creditor (1 & 2
Vict. c. 110), his right of priority will not be atiected by a charge of
iebts.

Neither debts by specialty, in which the heirs are bound, nor simple
contract debts, even since the 3 & 4 Will. 4, c. 104, constitute a lien or
charge upon the land, either in the hands of the debtor or of his heir or
devisee. Notwithstanding the existence of such debts, the debtor him-
self ma}' alienate the land. By taking proper proceedings, the credi-
tors, both by specialty and simple contract, may obtain payment out of
the descended or devised real estates in the hands of the heir or devi-
see ; but if such proceedings are not taken, the heir or devisee may
alienate, and in the hands of the alienee, whether upon a common pur-
chase or on a settlement, even with notice that there are debts unpaid,
the land is not liable, though the heir or devisee remains personally
liable, to the extent of the value of the land alienated: Richardson v.
Eorton, 1 Beav. 112, 123; 4 My. & Cr. 268, 269; Spackman v. Tim-
brell, 8 Sim. 259, 260 ; Dilkes v. Broadmead, 2 Giff. 113 ; but a mere de-
posit of the deeds of an estate (Carter v. Sanders, 2 Drew. 248), or a
covenant to settle it by (Pimm v. Insall, 1 Hare, 481 ; 1 Hall & T.
487 ; 1 Mac. & G. 448), or a judgment entered up against the heir or
devisee (Kinderley v. Jeruis, 22 Beav. 1), will not amount to such an
alienation as will defeat the creditors of the ancestor or devisor. See
Morley v. Morley, 5 De G. Mac. & G. 610.

As to the second kind of Equitable Assets.'] — Where the property is
not recoverable by the executors virtute officii, it will be equitable as-
sets: Under tiie old law, the equity of redemption of an estate
r*i ^4.1 *''* ^^® simple, or of a trust estate in fee simple, would have been
equitable, and not legal assets (Solley v. Oower, 2 Vern. 61

SILK V. PRIME. 373

Plunket V. Pennon, 2 Atk. 290) ; but, even under the old law, if there
had been a mortgage for a term of years, and the reversion in fee was
left to the mortgagor, it would have been legal assets, because a bond
creditor might have had judgment against the heir of tlie obligor, and a
cesset executio till the reversion came into possession ; but where it was
a mortgage of the whole inheritance, a bond creditor could have had no
remedy to make it assets at law ; and if the specialty creditor had
brought an action against the heir, he might have pleaded riens per de-
scent: Plunket V. Penson, 2 Atk. 308. The equity of redemption, how-
ever, of a mortgage in fee, both of freeholds and copyholds, is made le-
gal assets by 3 & 4 Will. 4, c. 104. See Foster v. Handley, 1 Sim. N.
S. 200 ; 15 Jur. t3 ; In re Burrell, 9 L. R. Eq. 443.

The equity of redemption of a term of years, after forfeiture at law,
was, it seems, formerly considered equitable assets. In The cane of the
Creditors of Sir Charles Cox, 3 P. Wms. 342, Sir Joseph Jekyll, M.
R., held, that a mere right of redemption of a term being barely an
equitable interest, it was reasonable to construe it equitable assets, and
consequently distributable amongst all the creditors pro rata, without
having respect to the degree or quality of their debts ; all debts being in
a conscientious regard equal, and equality the highest equity ; and see
Hartwell v. Chitters, Amb. 308, decided upon the authority of that case.
However, Mr. Cox, in his note to The case of the Creditors of Sir
Charles Cox, 3 P. Wms. 344, says, that upon looking into the Master's
report, it appeared that the only two creditors being in equal degree, the
Master declined to distinguish which were legal and which were equitable
assets, so that the point was not in fact determined, and that Hartwell
V. Chitters rested upon the authority of that case. " On the other hand,"
Mr. Cox observes, " it has been decided that chattels, whether real or
personal, mortgaged or pledged by the testator, and redeemed by the
executor, shall be assets at law in the hands of the executor, for so much
as they are worth beyond the sum paid for their redemption, though
recoverable only in equity." And in proof of this he cites Hawkins v.
Lawes, 1 Leon. 155 ; Harcourt v. Wrenham, or Harivood v. Wrayman,
Moore, 858; 1 Roll. Rep. 56; 1 Brownl. 76; 1 Roll. Abr. 920; Alexan-
der V. Lady Graham, 1 Lean. 225 : but see tlie judgment of Bayley, J.,
in Clay v. Willis, 1 B. & C. 372, and that of Lord Tenterden, C. J., in
Barker v. May, 9 B. & C. 493, where the doctrine laid down in The
case *'f the Creditors of Sir Charles Ooa;, and Hartwell v. r;|:iqc-|
Chitters, viz., that the equitj' of redemption of a term of j'ears
is equitable assets, is recognised and approved of.

It has moreover been decided that trusts of a chattel, as a mere
equitable interest in a term, not being affected, as trusts of inheritance,
by 29 Car. 2, c. 3, s. 10, are equitable assets : Scott v. Scholey, 8
East, 467 ; Metcalf v. Scholey, 2 New. Rep. 461. See also In re Duke
of Newcastle, 8 L. R. Eq. 700.

374 EQUITABLE ASSETS.

In the case, however, of Gooh v. Gregson (3 Drew. 54t), it was held
by Sir R. T. Kindersley, V. C, that the equity of redemption of a sum
of money charged on land is legal assets in the hands of the execator.
" The general principle," said his Honor, " is that a court of law would
treat as assets everj' item of property come to the hands of the executor
which he has recovered, or had a right to recover, merely virtute officii,
i. e., which he would have had a right to recover if the testator had
merely appointed him executor, without saying anything about his
property or the application thereof. That I think is the test which,
upon principle, a Court of law would apply. Assuming that to be the
true principle, suppose first, that tlie testator was at his death entitled
to a sum of money equitably charged an land ; as the executor could
recover this merely virtute officii, as executor, I apprehend that, when
received by the executor, it would be legal assets in his hands. Next,
let the same principle be applied to an equity of redemption. When
the time fixed for payment of the mortgage-money has passed, what is
the right of the mortgagor ? It is suggested that it is merely a right
to re-purchase ; that certainly is not the view taken of the law in mod-
ern times ; the unvarying tendency of modern decisions is to treat a
mortgage merely as a security, and to treat the mortgagor as being still
the real owner. And I think the view which Wentworth takes in the
passage referred to by the learned counsel for the plaintiff, (lb. p. 186,)
must be considered as much effected by the different light in which the
position of the mortgagor was regarded in former times. An equity of
redemption is not now considered as a matter of indulgence; it is now
a matter of absolute right. And is itnot merely by virtue of his office
that the executor of a mortgagor who has mortgaged a chattel, comes
to this Court to redeem ? I think it clearly is. If .there were nothing
in the will but the appointment of executor, would not the executor be
entitled simply virtute officii to ask for redemption ? Clearly he would.
A mere administrator might demand it. If so, I confess it appears to
me that the general principle, as I have stated it, applies to an equity
*of redemption of a chattel interest, whether real or personal ;
L -I and that such an equity of redemption would be legal assets.
N^ow whether those c.ises which have been cited with respect to the
aquity of redemption of a mortgaged term of years are to be considered
in exception, it is not absolutely necessary for me to determine. If I
were called upon to do so, I should say that, in my opinion, those cases
ire not sustainable, and ought not at this day to be followed. In this
3ase, it is an equity of redemption of an equitable charge of a sum of
aioney on real estate, which the executor has clearly in my opinion a
right, in his mere character of executor, first to redeem, and then to
mforce payment of. It is said it is a sort of double-distilled equity ;
irst, there is a mere equity on a charge, and then there is a mortgage
)f that, and the testator's interest consists of the equity of redemption

SILK V. PRIME. 375

of that mortgaged equity. That does not, as it appears to me, at all
prevent the executor being entitled, virtute officii, to redeem and re-
cover the sum charged ; and I am therefore of opinion that the assets
here recovered are legal." See also Mutlow v. Mutlow, 4 De G. & Jo.
539.

So in Christy v. Gourtenay, 26 Beav. 140, the surplus produce of
the sale, under the Court, of leaseholds for lives mortgaged by the tes-
tator, were held to be legal and not equitable assets.

But a judgment-creditor will be paid out of an equity of redemption
before simple contract creditors, because he has a right to redeem :
Sharpe v. The Earl of Scarborough, 4 Ves. 538.

The creditors of a married woman dying possessed of separate prop-
erty, will be paid out of it pari passu, because they can only affect her
property in a Court of equity, and their debts, having no existence at
law, are considered equal in equity. See Bruere v. Pemberton, cited as
Anon., 18 Ves. 258 ; where in a contest between the specialty and sim-
ple contract creditors. Sir Wm. Grant, M. R., held that the circum-
stance of a debt contracted by a mairied woman having separate es-
tate, being secured by a bond, did not give the creditor any priority,
the bond, considered merely as a bond, being void, and therefbre all
the debts must be paid equally ; see Y Jur. N. S. 280 : Murray v. Bar-
lee, 8 My. & K. 209, and Owens v. Dickinson, Cr. & Ph. 48, 53, where
a married woman by will charged her debts upon her separate prop-
erty; and see ante. Vol. 1, p. 511 ; Johnson v. Gallagher, 30 L. J. (N.
S.) Ch. 298 ; Gregory v. Lockyer, 6 Madd. 90. But see Shattock v.
Shattock, 2 L. B. Eq. 182. For decrees for the administration of the
separate personal and real estate of a feme covert, see Seton on De-
crees, 151, 152, 232, 233, 3rd edit.

Order in which Equitable Assets *are administered.l Where

r*13'7l
there are only equitable assets, debts by specialty and simple '- -^

contract are payable thereout pari passu (see Lord Camden's judgment
in the principal case, ante, p. 113), and the law remains unaltered by
32 & 33 Vict. c. 46 ; and a claim of an incumbent against the represen-
tatives of his predecessor for dilapidations, will be paid out of equita-
ble assets pari passu with other creditors (Bisset v. Burgess, 23 Beav.
278, 281), though at law it would be postponed to simple contract credi-
tors : Bryan v. Clay, 1 Ell. & Bl. 38.

And where a debt is contracted by an Englishman in a foreign
country, the provisions of the lex loci contractus do not avail to entitle
the creditor to payment of his debt out of equitable assets adminis-
tered in this country in priority to other creditors : Pardo v. Bingham,
6 L. R. Eq. 485.

The maxim, that Equality is equity, applies only to those persons
whose equities are equal as creditors among themselves, and it will not
be extended to legatees jointly with creditors. Thus, although land

376 EQUITABLE ASSETS.

may be devised in trust for or cliarged with the payment of debts and
legacies, the debts will have the precedence of the legacies, upon the
ground that a man ought to be just before he is generous ; " for a man
may not give but what is his own, but what he hath ultra ees alienum : "
Hixon V. Wytham, 1 Ch. Ca. 248 ; S. C, 1 Freem. Ch. Rep. 305 ; Sir
John Bowles' case, cited by Hutchins, Lord Commissioner, in Greaves
V. Powell, 2 Vern. 248 ; Walker v. Meager, 2 P. Wms. 551 ; and Petre
V. Bruen, there cited ; Kidney v. Coussmaker, 12 Ves. 154 ; overruling
some of the old decisions and dicta, in which it was considered, that, as
in such cases neither tlie creditor nor legatees could make any claim of
strict right, but merely from the bounty of the testator, they ought,
therefore, to be paid pari passu, without any distinction.

Order in which Assets, partly Legal and partly Equitable, are ad-
ministered.']— 1st. The personal estate not specifically bequeathed
(Davies v. Topp, 1 Bro. C. C. 526), unless exempted by declaration
plain, or inference as plain {Manning v. Spooner, 3 Ves. lit ; Milnes
V. Slater, 8 Ves. 305 ; and see Ancaster v. Mayer, Vol. 1, p. 630 and
note) ; and this being legal assets, will be applied in a coarse of ad-
ministration in payment of debts, according to their legal priorities.

In the case of persons who died before the 1st of January, 1870,
specialty debts will be paid in priority to simple contract delits ; in the
case of persons dying on or after the 1st of January, 1810, specialty
debts and simple contract debts will be paid pari passu out of such per-
sonal estate.

2nd. Real estates, devised or ^ordered to be sold for payment
L -I of debts, not merely charged with payment of debts ; Davies v.
Topp, 1 Bro C. C. 52T ; Harviood v. Oglander, 8 Ves. 125 ; Manning
V. Spooner, 3 Ves. IIT ; Phillips v. Parry, 22 Beav. 279.

These, however, will be equitable assets, and in cases both before and
coming within the operation of 32 & 33 Vict. c. 46, applicable in pay-
ment of debts by specialty and simple contract pari passu. Newhy v.
Skinner, 1 Dev. & Bat. Eq. 488 ; Nagle's Appeal, 1 Harris, 260, 264 ;
Hoover v. Hoover, 5 Barr. 356.

3rd. Real estates descended, but not charged with debts (Davies v.
Topp ; Harmood v. Oglander ; Manning v. Spooner ; and see Bow v.
Bow, 7 L. R. Eq. 414, as to costs of administration suit), whether in
the possession of the devisor at the date of his will or subsequently ac-
quired (Milnes v. Slater, 8 Ves. 304). These are legal assets liable to
debts by specialty, but not before 47 Geo. 3, c. 74, and 3 & 4 Will. 4 c.
1 04, to debts by simple contract. If, however, in the course of admin-
istration, the specialty creditors had been paid out of the personal es-
tate, these assets, as remarked in a former note, even before the statutes
just referred to, have been marshalled in favour of simple contract
creditors ; but in cases coming under the operation of 32 & 33 Vict. c.

SILK V. PRIME. 377

46, debts by specialty and by simple contract will be payable pari passu
out of real estate descended.

4th. Real estate devised, charged with payment of debts (Davies v.
Topp, Harmood v. Oglander, Manning v. Spooner, Barnewell v.
Lord Cawdor, 3 Madd. 453) ; and these being equitable assets, specialty
and simple contract debts, in cases both before and coming within the
operation of 32 & 33 Viet. c. 46, are payable out of them pari passu.
5th. General pecuniary legacies pro rata.

6th. Real estate devised not charged with debts {Davies v. Topp,
Manning v. Spooner), including real estate comprised in a residuary
devise: Pearmain v. Twiss, 2 Griff. 130 ; Hensman v. Fryer, 3 L. R.
Ch. App. 420 ; Gibbins v. Eyden, 1 L. R. Eq. SU ; Collins v. Lewis,
8 L. R. Eq. Y08, overruling Dady v. Hartridge, 1 Dr. & Sm. 236 ; Cogs-
well V. Armstrong, 2 K. & J. 221 ; Dyer v. Bessonett, 4 Ir. Ch. R. 382 ;
Barnwell v. Iremonger, 1 Dr. & Sm. 242 ; Rodhouse v. Mold, 13 W. R.
(V. C. K.) 854 ; 35 L. J. (Ch.) 61 ; Rotheram v. Rotheram, 26 Beav.
465 ; Bethell v. Oreen, 34 Beav. 302 ; Hensman v. Fryer, 2 L. R. Eq.
62t ; West v. Lawday, 1 I. R. Eq. 478; and personal estate specifically
bequeathed, each contributing rateably {Long v. Short, 1 P. Wms. 403 ;
Tombs V. Roch, 2 Colt. 490 ; Weir v. Chamley, 1 Ir. Ch. Rep. 295 ;
Gervis v. Gervis, 14 Sim. 654, overruling Gornewall v. Cornewall, 12
Sim. 298; and see Young v. Eassard, 1 J. & L. 472 ; JacksonY. Hamil-
ton, 3 J. & L. 711 ; *and Bateman v. Hotchkin, 10 Beav. 426 ;
Fielding v. Preston, 1 De G. & Jo. 438 ; Evans v. Wyatt, 31 \-*^^^i
Beav. 217) ; unless one is made primarily liable {Bateman v. Hotchkin,
10 Beav. 426) ; the former species of property, previous to the statutes
rendering real estates liable to debts by simple contract, would only be
liable to debts by specialty ; but if the specialty creditors had been paid
out of the personal assets, the simple contract credi.ors by marshalling,
would be entitled to satisfaction out of the real estates devised pro
tanto. Ante, 326.

Where a sum given by will and charged on real estate specifically de-
vised is a primary charge upon it, specific legacies, and the specifically
devised estate, must contribute rateably towards payment of debts, be-
fore recourse is had to the sum so charged. See Raikes v. Boulton, 29
Beav. 41 : there the testator devised real estate to one for life, with re-
mainder to trustees for a term to raise the clear sum of 10,000Z. for his
younger son ; and subject thereto he devised the estate in strict settle-
ment. The personal estate not specifically bequeathed, was insuflflcient
to pay the debts, and thereupon the devised estates and specific legacies
became liable to contribute rateably towards the deficiency. It was held
bj' Sir John Romilly, M. R., that, as between the j^oungest son and the
persons taking the estate subject to the term, the whole amount of con-
tribution of the real estate must be borne by the latter.

7th. Where a person has a general power of appointment over per-

378 EQUITABLE ASSETS.

sonal estate, and he actually exercises his power in favour of volunteers
by deed or will, the property appointed will in equity form part of his
assets, so as to be subject to the demands of his creditors in preference
to the claims of his legatees or appointees ( Thompson v. Towne, 2 Vern.
319; Lassels v. Lord Cornwallis, lb. 465; Prec. Ch. 232; Hinton v.
Toye, 1 Atk. 465 ; Shirley v. Ferrars, 2 Atk. 1'72 ; 2 Ves. 2, 8, 9 ; Bain-
ton V. Ward, 2 Atk. 173 ; Townshend v. Windham, 2 Ves, 1 ; Pack v.
Balhurst, 3 Atk. 269 ; Troughton v. Troughton, 3 Atk. 656 ; Jenney v.
Andrews, 6 Madd. 264; Fetre v. Petre, 14 Beav. 197 ; Williams v. Lo-
mas, 16 Beav. 1 ; Brewer v. Swirles, 2 Sm. & Giff. 219 ; In re Daoies'
Trusts, 13 L. R. Eq. 163). But as a Court of equity never aids the
non-execution of a power, the power must be actually executed in order
that equity may thus interpose in favour of creditors ; Holmes v. Cog-
hill, 7 Ves. 499 ; 12 Ves. 206 ; Talmadge v. Sill, 21 Barb. 34 ; Johnson
V. Gushing, 15 New Hamp. 313.

And since Lord Bomilly's Act (3 & 4 Will. 4, c. 104), it has been
held that freehold estates, over which a testator has a general power of
appointment, and which he appoints by his will, are assets for the pay-
|-^, .„-, ment of his *debts even by simple contract: Fleming v. Bu-
chanan, 3 De G. Mac. & Gr. 976 ; Talmadge v. Sill ; Johnson v.
Gushing.

(The soundness of this doctrine was denied in The Commonwealth v.
Buffield, 2 Jones (Penn.) 246. Gibson, C. J., said that the appointee's
title is derived from the donor of the power and not from the donee,
and that the donee is a mere instrument for determining who shall profit
by the donor's bounty. It followed that the donee's creditors had no
equity to require that the benefit which he destined for another, should
be appropriated to the payment of his debts.)

But whether it be real or personal estate which has been appointed so
as to become assets for payment of the appointor's creditors, it will be
only applicable in aid of the assets which are really his property. See
Sainton v. Ward, 2 Atk. 172, and the decree in that case set dut in the
note to Holmes v. Coghill, 7 Ves. 502 ; Dauhenny v. Gockburn, 1 Mer.
639. And see Fleming v. Buchanan, 3 De G. Mae. & G. 976, where it
was held that the personal and real estates of the appointor, including
property specifically devised and bequeathed, were applicable in pay-
ment of his debts, before the appointed estate.

But if an appointee under a general power of appointment, were to
sell the pi'operty to a bona fide purchaser for valuable consideration,
the purchaser having a better equity would be preferred to the creditors
of the appointor, since they have no specific charge upon the property :
Hart V. Middlehurst, 3 Atk. 377 ; George v. Milhanke, 9 Ves. 190 ; and
it has been said by Sir W. Grant, M. R., that where a person has exe-
cuted an appointment of property over which he has a power unlimited
as to objects, he who pays a consideration to the voluntary appointee

SILK V. PRIME. 379

may constructively be held to be in the same situation as if he had in
the first instance paid it to him by whom the estate has been granted :
in Dauhenny v. Gockburn, 1 Mer. 638.

Where however a feme covert has a general power to appoint prop-
erty by deed or will, and executes it by will in favour of a legatee, the
appointed property does not, as in the case of a similar appointment
made by a man, become assets for the payment of her debts (Hobday v.
Peters (No. 2), 28 Beav. 354) ; but the case is otherwise where the feme
covert has practised a fraud in her contracts, for in such case the ap-
pointed property is liable : Hobday v. Peters, 28 Beav. 354 ; Vaughan
V. Vanderstegen, 2'Drew. 165, ante, Vol. 1, p. 495 ; and see and consider
Laing v. Cowan, 24 Beav. 112.

A lapsed share of real and personal estate, as between the heir-at-law,
the next of kin, and the residuar}'^ devisees and legatees, ought to be
applied in the same order as if the person entitled to such share under
the will had survived, and the heir-at-law and next of kin become re-
spectively entitled to what remains after such application : Fisher v.
Fisher, 2 Keen. 610 ; see, also. Peacock v. Peacock, 13 W. R. 516.

Where real estate was devised, subject to debts to one for life with
remainder to three persons as tenants in common, and one of the shares
lapsed, it was held by Sir John Stuart, V. C, that the *lapsed r;(:i ii-i
share was applicable for payment of debts in the same order as
the devised estates, and not till after the real estates which had de-
scended: Wood V. Ordish, 3 Sm. & Giff. 125 ; and see Byues v. Ryves,
11 L. R. Eq. 539.

Where assets are partly legal, and partlj' equitable, though equity
cannot take away the legal preference on legal assets, yet, if one creditor
has been partly paid out of such legal assets, when satisfaction comes
to be made out of equitable assets the Court will postpone him till
there is an equality in satisfaction to all the other creditors, out of the
equitable assets, proportionable to so much as the legal creditor has
been satisfied out of the legal assets ; Morrice v. Bank of England, Ca.
t. Talb. 220 ; Sheppard v. Kent, 2 Vern. 435 ; Deg v. Beg, 2 P. Wms.
416 ; Haslewood v. Pope, 3 P. Wms. 323; Wride v. Clark, 1 Dick. 382;
■Baily v. Ploughman, Mos. 95 ; Soames v. Bobinson, 1 My. & K. 500 ;
Chapman v. Esgar, 1 Sm. & Giff. 5^5 ; and see the decree in Plunket v.
Penson, 2 Atk. 294.

Upon the same principle, where a trustee of land for the payment of
debts, whether he be executor or not, retains out of legal assets a sum
of money in payment of a debt due to Iiim from the testator, he will not
be allowed to-sliare with the other creditors the equitable assets, until
they have received thereout payments proportionable to that which he
has already retained. See Bain v. Sadler, 12 L. R. Eq. 5T0 ; there, an
executor, who was also trustee for sale of an estate for payment of debts,
was a creditor of his testator, and had received personal estate which

380 EQUITABLE ASSETS.

he retained as part satisfaction of his debt. The real estate was sold, a
portion before the time, when a creditor's suit was instituted, and the
remainder under the decree, and the proceeds, as to part, were in the
executor's hands and the remainder in Court. It was held by Sir J.
Wickens, V. C, that the money arising from the sale of the real prop-
erty being equitable assets, the other creditors must be paid thereout
to an equality with the executor, and that then there must be a rateable
distribution of the rest.

This doctrine is founded upon the well-known maxim, that he who
seeks equity shall do equity, the Court refusing its aid to a creditor wlio
has taken advantage of his legal rights, to the exclusion of other credi-
tors, who, in the eyes of equity, are equally meritorious, until they
were placed upon an equal footing with him.

In cases, however, where the person whose estate is in the course of
administration, died on or after the 1st of January, 1870, this interpo-
sition of equity is rendered less necessary, as specialty and simple con-
P^. .„-, tract creditors are ^payable pari passu, both out of legal and
equitable assets, 32 & 33 Yict. c. 46.

It may be here mentioned that whatever may be the order which the
Court observes in distributing the assets of a testator, it does not alter
the legal rights of the creditor. Hence the mere circumstance that the
personal estate was more tlian sufficient to pay all his debts, funeral
and testamentary expenses, and discharge all his liabilities, is not, even
with the additional fact that the personalty specifically bequeathed has
been assigned and delivered by the executors to the specific legatee,
sufficient to discharge the specifically bequeathed property from the de-
mands of the testator's creditors. See Dames v. Nicholson, 2 De G. &
Jo. 693 ; there an executor assigned a leasehold to a person to whom
it was specifically bequeathed, and allowed the residuary legatee to take
possession of the rest of the property, including another leasehold.
After this, the rent of the second leasehold fell into arrear, and the
landlord, being unable to obtain payment from the residuary legatee,
filed a bill for the administration of the testator's estate. It was held
bj- the Lords Justices of the Court of Appeal, that he was entitled to
have the arrears paid in full out of the specifically bequeathed leasehold,
whatever the rights of the specific legatee might be as against the ex-
ecutor or the residuary legatee.

But where a creditor is in default for not having come in under a
decree, and the Court has distributed the assets, the creditor will only
be allowed to impugn what has been done, by coming to the Court and
submitting to such equitable terms as the Court may think fit to impose,
as, for instance, that the creditor shall recover from each party that
sum only which, as between himself and the other persons interested in
.the estate, that party was liable to pay ; Gillespie v. Alexander, 3 Russ.
130 ; Greig v. Homerville, 1 Russ. & My. 338.

SILK V. PRIME. 331

Administration of the Assets of a deceased Partner.] — With re-
gard to the administration of assets in the case of partnership as between
joint and separate creditors, the following rules have been laid down.

In the administration of the assets of a deceased partner, where both
partners are solvent, tliere is no distinction between joint and separate
creditors ; they are all paid pari passu. And in taking the partnership
accounts, the joint debts thus paid will be allowed in account as so
much paid on behalf of the firm {Ridgway v. Clare, 19 Beav. 116). If
the estate of the deceased partner is insolvent, but the estate of the sur-
viving partner is solvent, it is clear that the joint creditors would
*then proceed against the solvent partner, who would then r:(siio-i
become a creditor against the separate estate of the deceased
partner, in respect of what has been paid by him beyond his propor-
tion {lb.).

In case the surviving partner is insolvent or bankrupt, in the ad-
ministration of the estate of the deceased partner the joint creditors in
the first instance must resort to the joint fund, and can only come
against so much of the separate estate as will remain after paying the
separate creditors; Oray v. Ghiswell, 3 Ves. 566.

The same rule applies to the case where both the partners have died
before the administration takes place ; Ridgway v. Glare, 19 Beav. Ill,
117.

Where, in the administration of the separate assets of a deceased part-
ner, it appears that both his estate and the estate of his surviving part-
ner are insolvent, the separate creditors of the deceased partner have a
priority over the joint creditors ; Wittingstall v. Grover, 10 W. R.
(M. R.) 53. And the fact that the deceased partner has by his will de-
vised his estates, subject to the payment of all his debts in respect of
the partnership concern, or otherwise, is not sufficient to place the two
classes of creditors on an equal footing ; Wittingstall v. Grover, 10 W.
R. (M. R.) 53.

Equitable assetsare those which, the order of distribution. Inadmin-
from their own nature, or the char- istering legal assets equity follows
acter which has been impressed the law and respects legal priori-
upon them by the testator, cannot ties ; Tenant v. Stoney, 1 Richard-
be reached or administered in the son's Eq. 221, 261 ; Purdy v. Boyle,
ordinary course of law, and which 1 Paige, 558 ; Wilder v. Keeler,
consequently fall within the exclu- 3 Id. 161 ; ante, 358. But where
sivejurisdiction of chancery, ante, assets are the growth of equitable
364; Garnish Y.Wilson, & Gill. 299. jurisdiction, or can onljr be reached
The mere change of the forum in through the aid of a chancellor,
which assets are administered will they will be so distributed that if
not vary their character or affect there is not enough to satisfy all

882

EQUITABLE ASSETS.

demands, each shall be paid rata-
bly ; Gibb8 v. Finlay, 4 Maryland
Ch. 75 ; Codivise v. Gehtone, 10
Johnson, 522 ; The Atlas Bank v.
The Nahant Bank, 3 Metcalf, 581 ;
Robinson v. The Bank, 18 Geor-
gia, 65. Hence, although a bond
creditor was entitled to a prefer-
ence over a debtor by simple con-
tract in the distribution of legal
assets, which would be respected
aud enforced by a court of chan-
cery, yet when he sought to sub-
ject property which was beyond
the reach of an execution, he was
obliged to take equally with sim-
ple contract creditors. So when
equitable assets, as, for instance,
the proceeds of an equity of re-
demption in real estate or chattels,
or of land devised for the payment
of debts were in question, an exe-
cutor could not retain for his own
debt, nor could specialty creditors
claim a preference over debts due
by simple contract, but the whole
was distributable ratably among
all the claimants ; Jones v. Lack-
land, 2 Grattan, 81 ; Lowe v. Pes-
kett, 16 C. B. 500. In like manner,
where land was devised, although
for the payment of debts, there
was no remedy at common law for
the specialty creditors against the
devisee, and their sole redress lay
in equity, which only afforded it
on the terms of placing all the de-
mands against the estate on the
same footing ; Ross v. Barclay, 6
Harris, 119, 184. For although
the Stat. 3 & 4 Will. & Mary, c. 14,
rendered lands devised liable for
the specialty debts of the devisor,
yet as it excepted devises for the
payment of debts, these were held

to remain equitable assets as they
had been before the statute ; Ben-
son V. Le Roy, 4 Johns. Ch. 651.
In like manner, the appointment
of a creditor as the executor of
a will which imposes a charge of
debts on the land, followed by
a sale of the land and a receipt of
the proceeds, will not extinguish
his demand or sustain a tra-
verse of a plea of plene admin-
stravit, because a court of law
cannot take jurisdiction of a fund
which is exclusively cognizable by
chancery, and it must be dis-
tributed ratably among all tlie
persons having demands on the
estate. See Lowe v. Pesket, 16
C. B. 500 ; ante, 369.

The principle that debts have the
same moral obligation, and should,
therefore, be paid pari passu, is
recognized in American, as well as
English jurisprudence ; and it is
not less well established that all
the property that one has should
be appropriated to the discharge
of his liabilities. But these prin-
ciples have lost much of their im-
portance as distinct heads of equi-
table jurisdiction, by their incor-
poration with the body of the law.
It is no longer requisite to go into
chancery to subject real estate to
the payment of debts, or to secure
equality of distribution among
specialty and simple contract
creditors. The whole estate of a
decedent is now answerable for the
fulfilment of his obligations. Jt
is, consequently, legal assets, and
to be distributed as the law pre-
scribes; Bully. Bull, 8 B.Mon-
roe, 352. And in manj^ of the
states all debts except those due

SILK V. PRIME.

383

for rent or medical attendence
during the last illness, and for
menial services, have been placed
by statute on the same footing,
and are to be paid alike. See
Sperry's Estate, 1 Ashmead, 344 ;
Nagle's Appeal, 1 Harris, 260, 264.
These enactments enlarge and ap-
pl}' rather than supercede the
principles on which a court of
equity proceeds in the distribution
of equitable assets ; Torr's Estate,
2 Rawle, 250. Agreeablj' to that
doctrine as administered under the
statute 3 & 4 W. & M. c. 14 ; ante,
363; a chancellor could not deviate
from a provision in a devise for
the payment of debts that a par-
ticular debt, or a class of debts,
should b^preferred, ante, 365. Mil-
ler y. Horton, Or. Cooper, 45 ; Hen-
derson v. Barton, 3 Ir. Eq. 25t.
But where all debts are by the
statute law to be paid ratably in
proportion to their amount, a will
providing that certain debts shall
be paid in the first instance is in-
valid, because the legislature will
be presumed to have intended to
give the principle that equality is
equity, the force of a positive rule ;
Bull V. Bull, 8 B.Monroe, 352.

The doctrine that land devised
to be sold for the payment of
debts or charged with debts by
will is equitable assets, and to be
administered as such, still prevails
in Virginia, North Carolina and
Kentucky, and is an importajit
feature in the jurisprudence in
those States ; Speed v. Morris, 8
B. Monroe, 499, 504 ; Bull v. Bull,
lb. 352 ; M'Candlish v. Keene, 13
Gratten, 615, 634; Oaw v. Huff-
man, 12 Id. 620 ; Morris v. Mor-

ris, 4 Id. 293 ; Henderson v. Ben-
ton, 3 Iredell's Eq. 257 ; Backhouse
V. Fatton, 5 Peters, 160.

A similar view is taken in Ken-
tucky, although the devisor will
not be allowed to create a prefer-
ence contrary to the manifest in-
tention of the legislature, that all
debts shall be paid ratably ; Bull
V. Bull, 8 B. Monroe. The doc-
trine of equitable assets has been
superceded in Pennsylvania by the
statutes regulating the administra-
tion of estates after death ; Sperry's
Estate, 1 Ashmead, 34"?. A trust
for the paj^ment -of debts may,
nevertheless, be created by will in
that state, and a sale by the de-
visee will confer a valid title,
although the personal estate in
the hands of the executor is not
exhausted, and ought to have been
applied to exonerate the land ;
Gadbury v. Duval, 10 Barr, 261 ;
see vol. 1. In Alexander v. Jf' -
Murray, 8 Watts, 303 ; and Baldy
V. Brady, 3 Harris, 103, the court
held that such a devise will stop
the running of statute of limita-
tions, and prevent the lien of
debts from expiring through the
lapse of time ; but it seems that
this result will not ensue from a
charge of debts, or power to sell,
nor unless the debts are specified
or enumerated in the will. See
Agnew v. Fetterman, I Harris, 56,
62 ; Trinity Church v. Watson, 14
Wright, 518.

It is well settled that a bequest
of personal property for the pay-
ment of debts is invalid, and will
not prevent the bar of the statute ;
Lewis V. Bacon, 3 Henning &'
Mumford, 89, 106; Haines v.

384

EQUITABLE ASSETS.

Spinell, 2 Dev. & Bat. Eq. 93;
Garrington v. Manning^ 13 Ala-
bama, 611 ; Jones v. Scott, 1 Rus-
sell & Mylne, 255; 4 CI. & F.
898 ; and it has been held in some
instances, that since real estate
is now assets and ma3' be adminis-
tered by the executor, land can no
more be devised for such a pur-
pose than goods or chattels ; Gar-
rington V. Manning ; Hall v. Bun-
stead, 20 Pickering 2. See Trinity
Church V. Watson ; Garnish v.
Wilson, 6 Gill, 315. In Cornish
V. Wilson, the court said that a
charge of debts on real estate was
inoperative in Maryland under the
acts of Assembly, rendering the
real estate answerable for debts in
aid of the personal.

Another occasion for applying
the doctrine of equitable assets
may grow out of the dissolution
of a partnership by death. It
is well settled that on the decease
of a member of a firm, his liability
for the joint debts becomes ex-
tinct, and the law oasts the obli-
gation exclusively on the surviv-
ing partners. Not only, therefore,
must the assets of the deceased
partner be applied to the discharge
of his individual liabilities, but
the joint creditors can have no
recourse to any surplus that may
remain in the hands of the admin-
istrator, except through the inter-
vention of a chancellor. It is con-
sequently equitable assets as it
regards them, whether it did or
did not possess that character in
the first instance, and a joint
creditor who has received part of
his debt from the firm property,
will not be allowed to touch such

a fund until the creditors who
have received nothing have been
paid enough to put all on an
equal footing; Wilder -v. Keeler, 3
Paige U1.

The case is essentially different
where the assets in the hands of
the administrator are equitable in
their origin as proceeding from a
charge imposed by will, or the
sale of property, which could not
be reached in the ordinary course
of process. Under these circum-
stances there is no legal rule pro-
hibiting the application of the
cardinal principle that equality
is equity. Hence, it is generally
conceded that if there'are no joint
assets, the partnership creditors
may come in pari passu, with the
separate creditors ; Wilder v.
Keeler, 3 Paige, 16T. And the
more logical conclusion seems to
be that the existence of a joint
fund makes no difference, except
that the separate assets should be
so distributed among the partner-
ship and several creditors, that
each may receive a ratable pro-
portion of his demand ; Morris v.
Morris, i Grattan, 293 ; Tor7-'s
Estate, 2 Rawle, 250, 253.

It results from the same princi-
ple, that a joint attaching creditor
who asks the aid of a court of equity
to set aside an attachment which
has been laid by a separate creditor
on the property of the firm, must
do equity by waiving the lien
which he has himself acquired,
and suffering the assets to be dis-
tributed ratably among all the
partnership creditors ; Washburn
V. The Bank of Bellow's Fall, 19
Vermont. 2Y8.

SILK V. PRIME.

885

The doctrine of equitable assets
was considered in Benton v. Le
Boy, 4 Johnson, Ch. 651. The
testator there devised all his es-
tate, real and personal, in trust to
pay his debts, and then distribute
the residue. After his death,
judgments were obtained against
his estate, on various demands,
which had been assigned to his
widow. A creditor's bill having
been filed to enforce the trust and
stay proceedings on the judg-
ments, it was contended that
these were entitled to priority,
notwithstanding the devise, under
the provisions of the New York
statute, which declared all devises
of land void, as against creditors,
without excepting those for the
payment of debts. The court was
of opinion that this exception was
implied, and held that the devise
rendered the land equitable assets,
and placed all the creditors of the
testator on a level whicli could
not be disturbed by judgments
obtained after his death.

The chancellor said: " The tes-
tator in this case devised all his
estate, real and personal, to four
trustees (of whom three were made
executors), in fee, and in trust, to
pay his debts, and then to dis-
tribute the residue. Such a de-
vise in trust places the assets
under the jurisdiction of this
court. A court of law does not
take cognizance of a trust, but
the notice of it belongs peculiarly
and exclusively to this court.

" Before the statute of 3 W. &

M., if the testator devised his

lands for the payment of his

debts, all the creditors were to

VOL. II 25

be paid pari passu, or in ratable
portions ; for it was to be pre-
sumed that the testator meant to
do equal justice to all. Thus, in
a case before Lord Nottingham,
in 1681, (Anon., 2 Ch. Ca. 54), the
testator devised his lands to trus-
tees to pay debts, and the trustees
being themselves creditors, paid
themselves in full, and left other
creditors unsatisfied, who then
filed their bill for ratable pay-
ment. The chancellor held, that
under that devise, all creditors
were to be paid equally, and that
the trustees could not give them-
selves a preference.

" The statute of W. & M. did
not interfere with this doctrine of
equitable assets, but rather gave
it, as it has been said, a parliamen-
tarj' sanction. That statute (3 W.
& M. c. 14), was made /or a relief
of creditors against fraudulent de-
vises ; and so the preamble to it,
as well as the title, expressly de-
clares. It does not apply to the
case of a devise to trustees for the
paj'ment of debts, for such a devise
is in furtherance of justice, and
of the avowed policy and purpose
of the statute. To mark that
policy the more distinctly, the 4th
section of the statute expressly
excepted from its operation de-
vises of lands for the payment of
debts or children's portions. The
omission of this proviso in our
statute cannot make the least al-
teration in its construction. It
must have been omitted, because it
was unnecessary, and was doubt-
less inserted in the English statute
for greater caution. It is impos-
sible to suppose that an honest

386

EQUITABLE ASSETS.

devise for payment of debts could
be affected by a statute made on
purpose to protect creditors aginst
fraudulent devises. The devisees
intended by the statute were those
■who took a beneficial interest un-
der the will, to the injury of credi-
tors. The statute does not apply
to cases of trusts created by will to
pay debts. This we cannot, for a
moment, suppose. The general
provisions in the English, and in
our statute (which are the same),
apply onl}' to suits at law against
heirs and devisees claiming the en-
tire interest for themselves, and
against whom judgment and exe-
cution may be awarded, for the
lands which have ccfme to their
hands ; but a judgment and execu-
tion at law against a naked trus-
tee holding lands in trust for
others, could not affect the rights
of the cestui que trust.

" It is observed in Fonblanque
(b. 1, c. 4, sec. 14, note), in a pas-
sage referred to by the counsel,
that bond creditors are liable to
be ' prejudiced ' by the power to
devise for the payment of debts
reserved by the statute of 3 W. &
M., because that under such a de-
vise, simple contract creditors are
to be paid pari passu, and bond
creditors will thus lose their legal
priority. But that is a prejudice, if
it can be so called, that the statute
never intended to remove, because,
as I observed before, the whole
object of it was to defeat fraudu-
lent dexises; and the payment of
debts by a j ust and equal distribu-
tion of the debtor's fund, is not a
hardship, and much less a fraudu-
lent provision towards any person.

It is an act of such justice and
pure equity, that the legislature
has always been solicitous to en-
courage it. Thus the statute pro-
vides (1 K R. L. 452), that when
real estate is sold by order of the
Court of Probates, or of a surro-
gate, for the payment of debts, the
proceeds are to be distributed
among the creditors, in proportion
to their debts, without giving pref-
erence to specialties. The as-
signees of insolvent debtors are
also directed, by another statute
(1 N. R. L. 469), to make a distri-
bution equally among creditors,
without giving preference to spe-
cialties. The same rule is also di-
rected, by another statute, to be
observed (1 N. R. L. 161) by trus-
tees of absent or absconding
debtors. And we may safely con-
clude, that though the fourth sec-
tion or proviso in the English
statute of W. & M. was omitted
in our statute, the omission could
not have been intended to perpet-
uate the common law doctrine of
preferences between creditors, in
case such a trust should be created
by will. Such a devise in trust
must be a valid devise, and subject
to equity distribution. That will
not be disputed. It must follow,
then, of course, without some ex-
press statute provision to the con-
trary, that the fund is to be re-
garded as equitable assets.

" In Freemoult v. Dedire (IP.
Wms. 429), it was admitted, that if
lands be devised for the payment
of debts, they were to be consid-
ered as equitable assets, and bonds
and simple contract debts were to
be paid equally. In Deg v. Beg

SILK V. PKIMB

887

(2 P. Wms. 412), a distinction
seemed to be made between a de-
vise to executors, and a devise to
strangers to pay debts ; but in that
case, it was admitted, that if the
devise was to executors, and to a
third person, (as was the case in
the present instance,) the same
conclusion followed. But this dis-
tinction has been since exploded,
and the law of the court on the
subject was fully discussed and
settled by Lord Camden, in Silk
V. Prime (1 Bro. 138, note ; Dick-
ens), 384. The testator, in that
case, charged all his real estate
with the payment of his debts, and
directed his executors, and their
heirs, to sell it if wanted for that
purpose. The master of the rolls
decreed that the assets arising
from the sale were to be considered
equitable assets, on the ground,
that, the devise was to the execu-
tors and their heirs, by which
means the descent to the heir was
broken. This decree was affirmed
on appeal, in 1T68, by Lord Cam-
den, and he observed, that the as-
sets did not come to the executors
in their character as executors, and
the rule was settled, that the assets
were not legal, unless the execu-
tors took them qua executors. A
devise to executors, and their heirs,
made them trustees ; and though
the real and personal estate were
made one fund by the will, yet
Lord Camden did not regard that
objection, but said that chancery
marshalled the assets. The charge
in that case, was considered as
amounting to a trust, and being a
trust, equity directed the execu-
tion of it upon equitable principles.

"In Newton v. Bennet (I Bro.
185), Lord Tliurlow referred to
the former case, and said, that an
estate devised to an executor to
sell, was equitable assets ; and
from some correct notes of this
case (T Vesey, 321, 322 ; 8 Id. 30),
it appears, that he did not con-
sider it to be requisite that the
descent should even be broken by
the devise, to render the assets
equitable. It has since been re-
peatedly held (Bailey v. Ekins, 7
Yesej'',319 ; Shepherd v. Lutwidge,
8 Id. 26,) that a mere charge of
the debts upon the real estate by
will, makes it equitable assets, even
though the descent be not broken.
It is sufficient that the estate be
devised upon trust to pay debts ;
and a charge of the debts upon the
real estate, is, in substance and
effect, a devise pro tanto. This
was the doctrine of Lord Eldon in
those cases ; and he made this
clear and pertinent observation,
that a provision by will, effectual
in law or equity for payment of
creditors, was not a fraudulent de-
vise within the statute. And I
may add, that such a devise is
equally valid and innocent, and
commendable with us, as it would
be under the protection of the pro-
viso in the English statute.

" The case now before me steers
clear of every difficulty. It comes
within all the cases, ancient and
modern. Here the descent is
broken, and here is a devise in fee,
and to a stranger, as well as to the
executors.

" Seeing, then, that here has
been a trust created by will,
for the payment of debts, this

388

EQUITABLE ASSETS.

court is bound to take care that
the trust is executed ; and to in-
terpose, if necessary, against a
proceeding at law intended to de-
feat it. Lord Eldon admitted this
consequence in Shepherd v. Lut-
widge. The widow of the testator
has been purchasing in debts due
from the estate, and suing them at
law, with the avowed purpose of
gaining, by her diligence, a legal
preference over other creditors.
This has been done with knowledge
of the provisions in the will, in
which she had a personal interest,
and with full notice of the trust.
Her acts have tended to defeat
the trust, and to prevent this
court from causing it to be exe-
cuted by a fair and equal distribu-
tion of the fund ratably among the
creditors. In such a case a race
of legal diligence cannot be per-
mitted, nor can such a creditor,
and more especially a voluntary
purchaser of debts, who was a
party under the will, and had due
notice of its provision, be suffered
to change the character of the
assets, and turn them from equita-
ble into legal. This would be to
wrest the trust from the jurisdic-
tion of this court, and destroj' the
rights of the cestui que trusts, who
are the creditors at large."

The principle that land charged
with debts bj' will is equitable as-
sets prevails in the United States
where it has not been superceded
by local enactments ; Henderson v.
Barton, 3 Iredell, Ch.25'7 ; Morris
V. Morris, 4 Grattan, 396 ; M'Cand-
lish V. Keene, 13 Id. 615 ; Helm v.
Darby's Adm'r, 3 Dana, 186;
Gloudas's Executrix v. Adams, 4

Dana, 603 ; Speed's Ex'or v. Nel-
son's Ex'or, 8 B. Monroe, 499 ;
Backhouse v. Fatten, 5 Peters,
160 ; and in M'Candless v. Keene,
the court held that it is not less
applicable because a remedy has
been conferred on the creditor by
statute, through which the land
may be converted into money
and applied to the payment of
his demand. Lee, J., said : " Wher-
ever real estate is by statute made
liable for paj^ment of debts it
would appear to constitute legal
assets as held in Goodchild v. Fer-
rett, 5 Beavan's Reports, 398 ; 2
Spenee's Eq. Jur. 319 ; yet where
a testator by his will charges his
real estate with his debts, the real
estate so charged will be equita-
ble assets, notwithstanding the
statute would have rendered it lia-
ble if there had been no such
charge; Charlton v. Wright, 12
Sinron's Reports, 274 ; 2 Spenee's
Eq. Jur. 312."

In administering legal assets, a
court of equity follows the law,
and respects legal priorities. It
will not, therefore, postpone credi-
tors of higher rank to those of
inferior degree, although creditors
of the same class will be paid
ratably. It was indeed held by
Chancellor Kent, that a decree for
the complainant in a creditor's
bill will put all the creditors who
come in under the decree on the
same level, whatever may be the
dignity of their claims, or the na-
ture of the fund, and the same
rule was applied in Moses v. Mur-
(/a<ro2/d, 1 Johnson's Ch. 119. But
this doctrine was pointedly ques-
tioned in Wilder v. Keeller, and

SILK

PKTMB.

389

the true principle seems to have
been laid down in Purdy v. Doyle,
1 Paige, 558, where the point arose
in the distribution of a fund aris-
ing from the sale of real estate
under a decree in a creditor's
bill, and it was held, that as the
decree did not render the as-
sets equitable, judgment creditors
were entitled to a preference so
far as the legal title to the es-
tate sold was in the debtor, but
that the proceeds of the residue of
the land in which he had a mere
equity, should be appropriated to
the creditors at large, until they
stood at the same level with the
judgment creditors, and the sur-
plus then distributed ratably
among all the claimants. " The
first question," said the chancel-
lor, " presented in this case, is
whether the fund in court is legal
or equitable assets. If it is such
property as the judgment creditors
could obtain a specific or general
lien on at law, they are entitled to
the fruits of their superior vigi-
lance, so far as they have suc-
ceeded in getting such lien. But
if the property was in such a situ-
ation that it could not be reached
by a judgment at law, and the
fund is raised by a decree of this
court, and the creditors are obliged
to come here to avail tl^emselves
of it, they will be paid upon the
footing of equity only (Godwisev.
Gelston, 10 Johnsoji Rep. 50T). It
clearly appears by the affidavits
before me in this case, that as to
one-half of the property out of
which the fund in court was raised,
the legal title never was in the an-
cestor, and of course did not at

law descend to the heirs. The
first section of the act for the re-
lief of creditors against heirs and
devisees, gives an action against
the heirs of a debtor, who dies
seized of land, &c. At law, a
contract to purchase, and payment
of the purchase-money does not
give the purchaser a legal seisin
of the land. In this court it is
otherwise ; and on the equity of
that statute, this court would give
to the creditors, satisfaction out of
the equitable interest in the land
descended to the heirs. But when
the creditors come here for the
purpose of reaching the equitable
right of the heirs, they must sub-
mit to the equitable rule of this
court. In Morris v. The Bank
of Englajid (Cases, temp. Talb.
218), that rule is stated thus : The
rule of this court, with regard to
equitable assets, is to put all the
creditors on an equal footing ;
so where the assets are parti}'
legal and partly equitable; and
though equity cannot take away
the legal preference on legal
assets, yet if one creditor has been
partly paid out of such legal
assets, when satisfaction comes to
be made out of the equitable
assets, the court will defer him
until there is an equality in satis-
faction to all the other creditors,
out of the equitable assets, pro-
portionable to so much as the
legal creditor has been satisfied
out of the legal assets."

Whatever may be thought on
this head, it is well settled, that iu
the administration of equitable as-
sets, debts must be paid ratably
without regard to class. But in

890

EQUITABLE ASSETS,

applying this principle, the court
will not lose sight of others of
equal moment. Equality is equity,
but it is not less well settled, that
qui prior est in tempore, potior
est in jure. A creditor will not,
therefore, be denied any advantage
which he has obtained through
greater foresight or diligence ;
The Atlas Bank v. The Nahant
Bank, 3 Metcalf,581, 584 ; M'Der-
viiitt T. Strong, 4 Johnson Ch.
68Y ; nor will he be compelled to
relinquish his lien on another
fund as the price of coming in on
that which is in the hands of the
court for distribution. Full effect
will consequently be given to a
mortgage, although unrecorded ;
M'Gandlish v. Keene, 13 Grattan,
615, 634, or to an equitable as-
signment or appropriation, not-
withstanding a want of the forms
that are requisite to pass the legal
title. See M'Dermutt v. Strong,
4 Johnson Ch. 68'! ; Averell v.
Loucks, 6 Barb. 410 ; Rutledge v.
Hazlehurst, 1 M'Cord Ch. 466.
The principle is the same whether
the prior lien be legal or equitable,
and whether it arises from a prefer-
ence shown by the debtor, or from
the superior diligence of the credi-
tor ; and hence the levy of an execu-
tion on property lying beyond the
reach of legal process, followed by
a bill praying for relief in equity,
will give the complainant a pri-
ority over other claimants who
have been more remiss in their
efforts to obtain satisfaction ;
M'Dermutt v. Strong, 4 Johnson
Ch. 681 ; Tenant v. Strong, 1 Rich-
ardson Eq. 221, 225 ; Freemoult v.
Dedire, \ P. Wms. 429 ; while a

covenant to settle au estate may
be specifically enforced, although
the result is to frustrate a devise
by which the land is charged with
the debts of the covenantor, and
thereby rendered equitable assets ;
Freemoult v. Dedire.

" In the administration of the
assets of a decedent," said Lee, J.,
in If' Candlish v. Keene, " whether
legal or equitable, the courts of
equity recognize and enforce all
antecedent liens, claims and
charges " in rem, " resting upon
the property, according to their
priorities, whether they are legal
or equitable ; 2 Lorn. Dig. 119
Freem.oult v. Dedire, 1 P. Wms
429 ; Finch v. Winchelsea, 1 P
Wms. 218; 1 Story's Eq. Jur,
§ 553, and cases cited in the note
And as the mortgage, though un
recorded, is valid against the
grantor and his heirs, it consti-
tutes such a lien as will be re-
spected by the court of equity in
administering the assets of the de-
cedent."

A similar view was taken by the
Supreme Court of Massachusetts,
in The Atlas Bank v. The Na-
tional Bank. " In distributing the
assets of an insolvent debtor be-
tween his creditors, the general
principle is, that all the creditors
are to stand on a footing of equality.
But if any one of them, by his su-
perior legal diligence, has acquired
a legal right or preference, a court
of equity will not divest him of it.
The rule is thus laid down in Cod-
wise v. Gelston, 10 Johns. 522.
" If a fund for the payment of
debts be created under an award
or decree in chancery, and credi-

SILK V. PRIME.

391

tors come in to avail themselves of
it, they will be paid in pari passu,
or upon a footing of equality. But
where the'law gives priority, equity
will not destroy it, and especially
where legal assets are created by
statute (as in case of judgment
liens), they remain so, though the
creditors be obliged to go unto
equity for assistance. The legal
priority will be protected and pre-
served in chancery."

A different rule prevailsin bank-
ruptcy, where a creditor must sur-
render or deduct his collateral
securities on proving the debt, ante,
322. This rule is irrespective of the
nature of the assets, and is applied
in Massachusetts, in the adminis-
tration of insolvent estates, before
and after death. It runs counter to
the general principle, that a credi-
tor may prosecute all his remedies
until he succeeds in obtaining sat-
isfaction, and should, agreeably to
the weight of authority, be con-
fined to the statutory jurisdiction
where it originated, ante, 258 ;
Gamp V. Grant, 21 Conn. 41, 63.

It is well settled that the joint
and separate creditors of a partner
have an equal claim on his sepa-
rate property during his life, and
while his estate remains in his own
keeping. There is no legal or
logical ground for setting aside a
levy for a joint debt on the goods
and chattels of a member of a firm,
to make way for the demands of
his separate creditors. Meech v.
Allen, 17 New York, 300; The
National Bank v. Sprague, 5 C.
E. Green, 13, 31 ; Mason v. Tif.
/any, 45 Illinois, 302 ; O'Bannon
V Miller, 4 Bush, 25. This results

from the obvious consideration
that the debts of the firm are also his. .
The inability of the partner, whose
effects are taken in execution, to
meet his separate engagements,
does not alter the rule, or author-
ize a chancellor to require tlie
joint creditor to proceed in the
first instance against the partner-
ship assets unless these are ade-
quate to pay the debt.

The death of a debtor partner
varies the case by exonerating his
estate from all legal liability for the
partnership debts. At law these
are as it regards him as if they
had never been, and the only re-
course of the joint creditors is in
chancery, which will not deprive
the separate creditors of their legal
prioritjr, although it will apply any
surplus that remains in the hands
of the administrator to the dis-
charge of the joint liabilities, un-
less there is some countervailing
equity; Ex parte Kendall, IT Ve-
sey, 514-519. In Ex parte Ken-
dall, Lord Eldon expressed his
surprise that courts of equity
should have thought themselves
entitled to enforce a joint contract,
against the representatives of a
deceased co-contractor at the in-
stance of one who had omitted to
make the obligation joint and
several, but the objection is merely
teclmical, and it is now thoroughly
well settled that the obligation of
the decedent survives in the con-
templation of a court of equity,
although it will not be enforced
to the prejudice of the legal rights
of the separate creditors. When,
therefore, the separate estate of a
deceased partner is brought into

392

EQUITABLE ASSETS.

chancery for distribution, his pri-
vate debts will be first paid, and
the residue distributed among the
joint creditors as equitable assets ;
Hosack V. Rogers, 8 Paige, 229.
The prioritj' of the separate credi-
tors arises not from the nature of
the debt as founded on a con-
sideration moving to the firm, but
from the form of the contract ;
and a joint creditor who has taken
the precaution to obtain the several
obligation of the deceased partner,
will stand on the same footing as
the separate creditors ; Wilder v.
Eeeler, 3 Paige, 161, 116.

The decease of a partner works
another change in the relation of
the joint and several creditors.
As the joint debts cease to be ob-
ligatory as it regards him on his
decease, so they devolve on the
surviving members of the firm.

If A. and B. are partners, and A.
dies, the partnership assets and
liabilities are cast on B., who is
thenceforth as much the sole debtor
as if there had been no other ;
Egbert v. Woods, 3 Paige, 511,
526. Hence, while the partnership
creditors have no recourse to A.'s
separate estate, B.'s separate credi-
tors have now an equal claim with
the creditors of the firm on the
joint assets which are vested ex-
clusively in him. Such, at least,
would be the result on merely legal
grounds. But inasmuch as A.'s
separate property is equitably
liable for the debts of the firm, his
administrator and those claiming
under him may insist that tlie
partnership creditors shall be
paid before any portion of the
joint assets is appropriated by B.

to his own use, or to meet his
private engagements; Egbert v.
Woods; Tillinghasty. Champlin,
A Rhode Island, 113, 189; French
V. Lovejoy, 12 New Hampshire,
458. It was accordingly held iu
French v. Lovejoy, that an assign-
ment by a surviving partner of the
partnership property, for the bene-
fit of his separate creditors, is
invalid as against an execution
issued on a judgment rendered in
favor of the creditors of the firm.

The claim of the joint and
separate creditors of a firm to
the partnership assets depends
on different considerations from
those which apply where the sepa-
rate property of the partners is
in question. Agreeably to the
letter of the common law, a part-
ner is a tenant in common, and may
as such dispose absolutely of his
share. If a suit against him for
his individual debt goes to judg-
ment and execution, the sheriff
may not only sell his right, title
and interest in the partnership
chattels but deliver them to the
purchaser. See Washburn v. The
Bank of Bellows Falls, 19 Ver-
mont, 218 ; Witter v. Bichards, 10
Conn. 31 ; Jarvis v. Brooks, 3
Foster, 136 ; 1 American Lead.
Cases, 582, 5 ed. A court of equity
regards the matter in a different
aspect. A partner is not in the
full sense of the word an owner,
and is simply entitled to so much
of the effects of the firm as may
appear to be due to him on a settle-
ment of the partnership accounts.
He cannot therefore appropriate
the partnership property to his
own purposes or to the discharge

SILK V. PRIME.

393

of a private debt without the con-
sent of the other members of tlie
fii'm ; Horfon's Appeal, 1 Harris,
6t ; Menagh v. Wh.itwell, 52 New
York, 146 ; French v. Lovejoy, 12
New Hamp. 458. The partners
are individually and collectively
entitled to require that the part-
nership assets shall be applied
to the payment of the joint debts,
and have an equitable lien on
the residue to the extent of their
respective interests in the firm.
And as the claim of a creditor does
not rise higher than that of the
debtor, so the separate creditors
of the partners must be postponed
to the partnership creditors in the
distribution of the partnership
assets ; see Goover's Appeal, 5
Casey, 9 ; Menagh v. Whitwell, 52
New Yorlc, 146; Benton v. Chap-
lain, 1 Stockton, Ch. 62 ; Thompson
V. First, 15 Mar3dand, 22 ; In the
matter of Smith, 16 Johnson, 102 ;
Duncan v. Fowler, 2 Paige, 400 :
Egbert V. Wood,Sld. 51S ; Hutchin-
son V. Smith, "7 Id. 26 ; The United
States V. Hack, 8 Peters, 271
Fierce v. Jackson, 6 Mass. 242
Christian v. Ellis, 1 Grattan, ii96
Washburn v. The Bank of Bel-
lows Falls, 19 Vt. 279 ; Tappan v.
Blaisdale, 5 New Hampshire, 190
Jarvis v. Brooks, t Foster, 57
Shedd V. Wilson, 1 Williams, 478
Wilson V. Soper, 13 B. Monroe,
411 ; Benson v. Fla, 4 Fogg, 402
White V. The Union Ins. Co., 1
Nott & McCord, 556 ; Tillinghast
V. Champlin, 4 Rhode Island, 173,
190 ; 1 American Lead. Cases, 585,
5ed.

It results from what has been
said that the paramount right of

the partnership creditors depends
on the equities of the partners
Hoxie V. Gaer, 1 Sumner, 172
Wakeman\.Hunt,'i Rhode Island
298 ; Glen v. Gill, 2 Maryland, 16
Ladd V. Griswold, 4 Gilman, 25
Doner v. Stauffer, 1 Penna. 198.
Hence an argument that the part-
ners may renounce a right given
for their benefit, and appropriate
the joint assets to the payment of
their private debts ; Givin v. Selhy,
5 Ohio, N. S. 96. The contention
is just if the firm are not indebted,
and as it regards a transfer which is
not calculated to hinder and delay
their creditors ; Smith v. Howard
2 New York; Day v. Wetherby,
29 Wisconsin, 363, 375. This re-
sults from the^MS disponendi inci-
dent to ownership, which may be
exercised with the same effect by
a firm as by an individual ; Jones
V. Lusk, 2 Metcalf, Ky. 356. If
the members of a solvent firm
agree for a sufficient considera-
tion to appropriate part of the
assets to a separate debt, there
is no legal policy which forbids
the contract ; Snodgrass' Appeal,
4 Harris, 471. But although the
partners collectively have all the
powers of a sole owner, they have
no more, and are not free from any
restraint that would be binding on
him. The law will not tolerate any
act on the part of a debtor having
a direct or necessary tendency to
preclude the fulfilment of his
obligations ; and it is no answer
that the object is to pay the debt
of another. This is equally true
whether he is a joint owner, or has
a several right of property. If A.
and B. are pecuniarily embarrassed

394

EQUIT ABLE ASSETS.

ai)d convey goods -which they hold
in common, in payment of a debt
due by B., the transfer is not
less voluntary and fraudulent on
the part of A. than if he had settled
his share on a wife or child. And
it is more true of partners than
of other joint owners, because a
partner has an equitable lien to
the full extent of the amount due
by the firm. If in the case just
supposed, A. and B. are partners,
A. is entitled to require that the
whole value of the goods shall be
appropriated to the discharge of
the joint debts, and cannot forego
this right in favor of B., or of his
. separate creditors without a mani-
fest wrong to the creditors of the
firm ; Random v. Van Deventer,
41 Barb. 307 ; Wilson v. Robertson,
21 New York, 587 ; Menagh v.
Whitwell, 52 Id. 146.

An assignment bji- an insolvent
firm, which puts the separate credi-
tors of the partners on the same level
with the partnership creditors, will
accordingly be invalid as against
the latter ; Wilson v. Robertson ;
although the partner whose debts
are thus preferred, has contributed
the greater part of the partnership
stock, and is largely in advance to
the firm. In like manner, a levy
and sale for a joint debt will pass
the right of property in the part-
nership chattels as against a prior
transfer or appropriation for a pri-
vate debt, which includes so large
a proportion of the assets of the
firm as to disable them from paying
the joint debts ; Menagh v. Whit-
well,supra. See Frenchv. Lovejoy.
It results from these decisions,
that an appropriation of partner-

ship assets to the private debts of a
partner, is no less voluntary as it re-
gards the firm, because it is founded
on a valuable consideration moving
to the person whose debts are paid.
The validity of it is, therefore, like
that of other gifts, a question of
circumstances, depending not so
much on the amount bestowed, as
on whether enough is left, beyond
peradventure, to satisfy the do-
nor's liabilities. A firm worth
half a million may obviously de-
vote $20,000 to a charitable or
public use, although owing twice
that amount. But a gift which
strips a firm of the greater part of
their available assets, or leaves
them barely enough to pay their
debts, is fraudulent and may be
set aside by a chancellor at the in-
stance of the partnership creditors.
The principle is the same where
the money of a firm is bestowed
gratuitously on a partner, or ap-
propriated to the payment of his
debts ; Ransom v. Van Deventer
41 Barb. 307 ; French v. Lovejoy,
12 New Hampshire, 458 ; Wilson
V. Robertson, 21 New York, 587.

It is a necessary consequence of
these principles that, as the right
of a creditor does not rise higher
than that of the debtor, a levy for
a separate debt will yield to a
subsequent levy for a debt due
by the firm ; Pierce v. Jackson, 6
Mass. 242; Rice v. Austin, 17 Id.
197 ; Matlack v. Matlack, 5 Indi-
ana, 403 ; Holland v. Fuller, 13
Id. 195 ; Morrison v. Blodgett, 8
New Hampshire, 250 ; Coover's
Appeal, 5 Casey, 9 ; Jarvis v.
Brooks, 3 Foster, 136, 146 ; Ben-
son V. Ela, 4 Foster, 402 ; Tappan

SILK V. PRIME.

395

V. Blaisdell, 5 New Hampshire,
190 ; Hoskins v. Johnson, 24 Geor-
gia, 625 ; Crane v. French, 1
Wend. 3] 1 ; Dunham v. Murdoch,
2 Id. 553 ; The Commercial Bank
V. Wilkins, 9 Greenleaf, 28 ; Doug-
lass V. Winslow, 20 Maine, 89 ;
Trowbridge v. Cushman, 24 Pick.
310 ; EousealVs Estate, 9 Wright,
484; Lovejoy v. Bowers, 11 New
Hampshire, 409 ; Rainey v. Nance,
54 Illinois, 29. This results from
the well settled rule that an execu-
tion creditor is not a purchaser,
and takes subject to every equity
that could be enforced against the
debtor. Such a levy neither au-
thorizes the sheriff to take the
goods into his keeping from that
of the members of the firm, nor
to deliver them to the purchaser,
who simply acquires the right,
title, and interest of the defend-
ant in the execution, subject to
a settlement of the partnership
accounts. It does not vary the
case that the partnership property
is taken in execution for the
separate debts of the partners
before the joint writ came into the
sheriff's hands, because each of the
separate levies is subject to the
equities of the firm, which conse-
quently remain untouched. Or,
to state the principle differently,
as the partners cannot severally
appropriate the joint assets to the
payment of their private debts, so
such an appropriation will not be
made by the law. The doctrine is
equitable in its origin, though now
recognized throughout the greater
part of the United States by the
courts of common law, and was
formerly enforced through an in-

junction issued at the instance of
the firm, or of the joint creditors ;
Witter V. Witter, 10 Conn. 37 ; 1
American Leading Cases, 5 ed. It
still remains on this footing in
Vermont, where relief against a
levy for a sepai'ate debt, on part-
nership property, can only be ob-
tained in chancery, and the assets
will then be distributed ratably
among the joint creditors ; Read
V. Sheppardson, 2 Vermont, 126 ;
Washburn v. The Bank, 19 Id.
2T8 ; Sheddv. Wilson, 1 Williams,
278; Russv. Fay, 3 Id. 191.

The rule that a lien for a part-
nership debt takes precedence
without regard to the order of
time, applies whether the property
is real or personal; Jarvis v.
Brooks, 7 Foster, 37 ; Peck v.
Fisher, 7 Gushing, 886 ; Crooker
v» Crooker, 49 Maine, 250 ; T.il-
linghast v. Champlin, 4 R. I. 173 ;
Matlack v. James, 2 Beasely, 26 ;
and hence a mortgage of land be-
longing to a firm may be valid,
notwithstanding a prior judgment
for a separate debt of a partner ;
The Lancaster Bank v. Miley, 1
Harris, 544. See notes to Lake v.
Graddock, vol. 1.

What has been said may serve
to show that if the jus dispo-
nendi of a firm does not go fur-
ther than that of an individual, it
is not confined within narrower
limits. They may squander the
partnership assets, or give them
away, or appropriate them to the
debts of a third person, or of a
member of the firm ; Reeves v.
Ayres,38 Illinois, 418,423; Rob-
erts V. Baker, 11 Florida, 192;
Eoxie V. Carr, 1 Sumner, 169,

396

EQUITABLE ASSETS.

182; Jones v. Lusk, 2 Metcalfe,
Ky. 356 ; The National Bank v.
Sprague, 5 C. E. Greene, 13, 31.
It is immaterial in this regard
that the iirm are indebted, or how
much is aliened, if enough be re-
tained to meet their engagements ;
Beese v. Bradford, 13 Alabama,
837. The equity of the joint credi-
tors depends on the equities of the
partners, and may be defeated by
any act on their part which is not
fraudulent, as it regards the part-
nership creditors : Wilson v. Soper,
13 B. Monroe, 411 ; Jones v. Lusk ;
Baker's Appeal, 9 Harris, T6. The
creditors have not a jus in re or ad
rem, nor have they a legal or equi-
table lien ; they have but a right
to be paid, attended by a corres-
ponding obligation on the part of
the debtors to take no step by
which that right may be im-
paired: Sigler v. The Knox
County Bank, 8 Ohio, N. S. 511
Allen V. The Center Valley Co..
21 Conn. 130; Bullitt v. The
Methodist Church, 2 Casey, 108
Wilson V. Soper, 13 B. Monroe
411; Miller v. Estell, 5 Ohio, N
S. 508 ; Boss v. Fuay, 3 Williams
381 ; Hoskins v. Everett, 4 Sneed
531 ; Doner v. Stauffer, 1 Penna,
198 ; Snodgrass Appeal, 1 Harris
4'70.

The creditors cannot therefore
follow the assets into the hands of
one claiming in good faith under
the partnership : Jones v. Lusk ;
National Bank v. Sprague, 5 C.
E. Greene, 13, 31 ; Sigler v. The
Knox County Bank, 8 Ohio N. S.
511; Allen v. The Center Valley
Co., 21 Conn. 130; Bullitt v. The
Methodist Church, 2 Casey, 108 ;

Kimball v. Thompson, 13 Met-
calf, 283 ; Wilson v. Soper, 13 B.
Monroe, 411, although they are as
clearly entitled to avoid any act
or transfer by which they are
wrongfully hindered or delayed ;
Sanderson v. Stockdale, 11 Mary-
land, 565 ; Flack v. Charon, 29
Id. 313 ; Ferson v. Monroe, 1
Foster, 462.

In Jojiesv. Lusk, 2 Metcalfe, Ky.
356, the court held that the part-
ners may, like an individual, make
any disposition of what belongs
to them short of fraud. They may
consequently convert the joint
property into separate, or apply it
to the payment of their private
debts, and proof that the firm was
insolvent will not invalidate the
transfer, or compel the separate
creditors to refund, unless it ap-
pears that they had notice, and
that the payment was made with
partnership funds.

The doctrine that the equity of
the joint creditors depends on the
equities of the partners, and may
consequently be defeated by bona
fide contract or appropriation, was
established in Ex parte Buffin, 6
Vesey, 119, and has been repeat-
edly applied in England and in
the United States ; The National
Bank v. Sprague, 5 C. E. Greene,
13, 31 ; Ex parte Williams, 11
Vesey, 3 ; Baker's Appeal, 9
Harris, 66 ; Schaeffer v. Fithian,
IT Indiana, 463 ; Sage v. Chollar^
21 Barb. 596; Boberts v. Baker,
11 Florida, 192; Allen v. The
Center Valley Co., 21 Conn. 130 ;
Miller v. Estell, 5 Ohio, N. S. 508 ;
Siegler v. The Knox Co. Bank, 8
Id. 511. In Siegler v. Chidsey, 4

SILK V. PRIME.

397

Casey, 279, a levy under a judg-
ment which had been 'confessed by
the firm for a separate debt, was
preferred to a subsequent levy for
a debt of the partnership. In Snod-
grass' Appeal, 4 Harris, 4'?1, a
promise by one of two partners,
to pay the amount of an execution
which had been levied on the part-
nership effects under a judgment
against the other partner, if the
sheriff would forbear, was held to
give the separate debt a preference
over a subsequent levy for an obli-
gation contracted by the firm. The
promise was treated as an agree-
ment to devote the joint property
to the separate debt, which pre-
cluded the partners and conse-
quently the joint creditors.

In like manner where it appeared
that the plaintiff had purchased one-
half of the effects of the firm of
Ashcroft & Odiorne, from Ash-
croft with the consent of Odiorne,
and afterwards purchased the other
half from Odiorne, it was held
that he might maintain replevin
against the officer by whom they
were subsequent attached for a debt
due by the firm: Kimball v. Thomp-
son, 13 Metcalf, 283. The trans-
action here took an unusual form,
but it is universally conceded that
a sale of the stock in trade and
good will of a partnership, does
not impose a greater accounta-
bility on the purchaser, than if he
bought from an individual.

The principle is the same when
a partner makes a bona fide sale
of his interest in the firm to his
co-partners ; Beese v. Bradford,
13 Alabama 38T ; Bankin v. Jones,
2 Jones Eq. 169 Lad,d v. Gris-

wold, 4 Gilman, 25 ; Hubbs v. Ban-
croft, 4 Indiana, 388 ; Frank y.
Peters, 9 Id. 343; M'Donald v.
Beach, 2 Blackford, 55 ; Dunham,
v. Hanna, 18 Indiana, 270 ; Wil-
son V. Soper, 13 B. Monroe, 411;
Waterman v. Huiit, 2 Rhode Is-
land, 298 ; Hickerson v. M'Fad-
den, 1 Swan, 258 ; Kimball v.
Thompson, 13 Metcalf, 283 ; Bul-
litt V. The Methodist Episcopal
Church, 2 Casey, 108; Ketchum
V. Durkee, 1 Barbour Ch. 480 ;
and it does not necessarily afi'ord
a conclusive presumption against
the validity of such a transaction,
that the parties who accept the
transfer are insolvent at the time,
or that a commission of bank-
ruptcy issues against them soon
afterwards, under which the assets
are appropriated to their separate
debts ; M'Donald v. Beach ; Frank
V. Peters ; Ex parte Williams, 11
Vesey, 5 ; Wilson v. Sopier, 13 B.
Monroe, 411 ; Waterman v. Hunt,
2 Rhode Island, 298 ; Hickerson v.
M'Faddin, 1 Swain, 258 ; Ketchum
v. Durkee, 1 Barb. Ch. . 480 ;
Baker's Appeal, 9 Harris, 76. In
Bullitt V. The Methodist Episcopal
Church, 2 Casey, 108, Boswell
took all the effects of Boswell,
Treadwell & Co., and agreed to
pay the debts. He subsequently
formed a limited partnership with
two other persons, in which he was
the general partner. He then
transferred certain demands of
Boswell, Treadwell & Co., to the
plaintiffs as security for a private
debt, and finally made a general
assignment for the benefit of his
creditors. The court held the ap-
propriation to the plaintiffs valid.

398

EQUITABLE ASSETS.

as it regarded the creditors of Bos-
well & Treadwell, although it
might have been set aside by the
limited partners and those to whom
they were indebted. It was in
like manner declared iu Mayer v.
Clark, 40 Alabama, 259, that part-
ners may lawfully agree on the
dissolution of the firm, that the
joint property shall belong to one
or more of them, and that such a
contract made and executed in
good faith determines the para-
mount right of the partnership
creditors as it regards the assets
so converted. " It is well settled,
said Lewis, C. J., in Baker's Ap-
peal, " that the right to confine
each partner, or those who claim
title under him, to his interest in
the surplus after the payment of
the partnership debts, is an equity
which rests in the other partners
alone, and not in the creditors of
the firm. The latter have no lien
on the property, and must work
out their preference in the distri-
bution of tlie piartnership funds,
entirely through the medium of
the partners whose interest remain
undisposed of; Story's Equity',
sec. 1263. If they consent to sub-
mit to a disposition of the assets,
the preference of the creditors is
at an end, and they must rely upon
the personal responsibility of, the
partners who contracted the debts.
Where one partner sells his interest
to another, in consideration of an
engagement by the latter to pay
the partnership debts, the rule is
the same. The engagement to pay
them is but a personal contract.
It creates no lien on the property.
It follows as a necessary conse-

quence, that if the partner who
has acquired the interests of his
former associates, and in whom
resides the right to appropriate
the partnership assets to the pay-
ment of partnership liabilities,
thinks proper to exercise his
dominion, and to make a difierent
disposition of them, he has a right
to do so ; and the preference of
the partnership creditors engrafted
upon, and deriving its support
from his equity, ceases to exist.
The scion dies with the stock.
These principles are announced in
Story on Partnership, sects. 358,
359 ; Gow on Partnership, ch. 5,
sect. 1, and CoUyer on Partner-
ship, b. 4, ch. 2, sect. 1 ; and ap-
pear to be fully sustained bj' Ex
parte Ruffin, 6 Vesej', Jun. 126 ;
Taylor v. Fields, 4 Id. 396 ; Kel-
ly's Appeal, 4 Harris, 59; 11
Vesey, Jun. 3 ; 10 Id. 347 ; Doner
V. Stauffer, 1 Penn.R. 198 ; Gamp-
bell V. Mullett, 2 Swanst, 552, and
other authorities. Lord Eldon, in
Ex parte Ruffin, seemed to think
that if the right to dispose of the
assets did not exist in the part-
ners, " no partnership could ever
arrange its afiairs."

The rule that a sale by a part-
ner of his interest in the common
stock to his co-partners, defeats the
equity of the joint creditors, is not
less applicable because the con-
sideration is whoUjr or in part of
an agreement by the remaining
members of the firm to pay the
partnership debts ; Griffith v.
Burk, 14 Maryland, 102. Such a
stipulation cannot be enforced
specifically without impairing the
control of the assets which the

SILK V. PRIME.

399

transaction is intended to confer ;
Bullitt Y. The Methodist Episcopal
Church, 2 Casey, 108 ; Baker's
Appeal, 9 Harris, T6; Reese v.
Bradford, 13 Alabama, SS"? ; Ran-
kin V. Jones, 2 Jones' Equity, 169 ;
Sage v. Chollar, 21 Barb. ; Miller
V. Estell. " One partner " said
Dargan, J., in Reese v. Bradford,
" may sell to his co-partner, and if
the sale is fair, it will vest the ex-
clusive title in his co-partner. See
Story on Part. 510 ; Ex parte Ruf-
fin, 6 Vesey, 119, 126 ; 11 Vesej^,
3, 5, 8. If the consideration of the
transfer be, that the partner buy-
ing, shall pay the debts, this will
not, by force of the contract, raise
a trust in favor of the creditors,
because they (the creditors) derive
their lien from, or through the
partners ; and if the retiring part-
ner parts with his lien, by the terms
of the contract, and takes the per-
sonal security of the other to pay the
debts, it would be difficult to main-
tain the proposition, that a creditor
could assert a lien through the re-
tiring partner, by virtue of an act
that extinguished the lien of the
partner himself." In Rohb v.
Mudge, 14 Gray, 334, the part-
nership creditors contended that
they were entitled to enforce an
agreement by the remaining part-
ners to take the partnership assets
and pay the joint debts, as one
made for their benefit ; but the
court overruled this argument on
the ground that they were not par-
ties to the contract, and had not
ratified it, except by bringing suit.
The interest of an outgoing
partner may, nevertheless, be trans-
ferred in a way that will give rise

to a trust ; as where the remaining
partners agree to apply the assets
specifically, or the proceeds of
them, to the joint debt ; and the
partnership creditors may, under
these circumstances, compel a spe-
cific performance by a bill in equity
without first going to judgment;
see Ex parte Fell, 10 Vesey, 348 •
Wildes V. Chapman, 4 Edwards
Ch. 669; Sedam v. Williams, 4
M'Lean, 51 ; Miller v. Estell, 5
Ohio, N. S. 508, 511 ; Ex parte
Rowlandson, 1 Eose, 416; Ex
parte Barrow, 2 Id. 252 ; Deveau
V. Fowler, 2 Paige, 400.

It has been held to follow for
like reasons, that where the con-
tract or co-partnership is of such
a nature that the partners have no
lien on the partnership effects for
the payment of the partoership
liabilities, no such preference can
be claimed by the creditors. See
The York County Bank's Appeal,
8 Casey, 446. In Rice v. Bar-
nard, 20 Vermont, 479, this re-
sult was deduced from a lono- con-
tinued course of dealing, which
showed that the partners regarded
the stock in trade as several,
and not as joint jn-operty. But
in Elliott V. Stevens, 38 New
Hamp. 311, the court was clearly
of opinion that a contract between
partners, that the assets shall not
be partnership property or prima-
rily liable for the joint debts, is in-
valid as against the creditors of
the firm. A mortgage by one of
two such partners to ihe other, of
his share as security for an indi-
vidual debt, was accordingly set
aside in favor of an attachment
issued by a joint creditor. But

400

EQUITABLE ASSETS.

there is no doubt that two or more
persons may agree to unite in a
common enterprise, and sliare the
proceeds without becoming part-
ners, if there be no joint agency
or ownership ; see 1 Smith's Lead-
ing Cases, 1308, 1 Am. ed. ; Holmes
V. The Old Colony Bailroad, 5
Gray, 58 ; Berthold v. Goldsmith,
24 Howard, 536, and as under these
circumstances the parties have no
equitable lien among themselves,
so none will exist in favor of their
joint creditors. See Glen v. Gill,
2 Maryland, 16; Ex parte Ham-
per, It Vesey, 403.

Another exception to the para-
mount equity of the joint creditors
exists in the case of a dormant
partner, and the separate creditors
of the acting partner then stand
on tha same footing as the part-
nership creditors, and may in the
event of bankruptcy elect in which
capacity they will prove. The
equity of the dormant partner is
secret, and will not be enforced
against one who had no notice of
its existence. See Ex parte Nor-
folk, 12 Vesey, 458; Baldwin v.
Lord, 6 Pick. 348 ; Cammack v.
Johnson, 1 Green. Ch. 163; Van
Valen y. Russel, 13 Barb. 590;
Brown's Appeal, 5 Harris, 480.

It is said in Snodgrass' Appeal,
1 Harris Penn. Reports, 411, " that
to entitle a joint debt, arising from
the joint undertaking of the mem-
bers of a firm, to a preference over
a separate debt of one of them, it
must appear afHrmatively that the
contract was made on the part-
nership account." This inference
is questionable, because all that a
partner can appropriate to his in-

dividual debts is the proportion
which would result to him on a
settlement of the partnership ac-
counts, and an attempt on his part,
or of one holding under him as a
separate creditor, to do more, is a
fraud which equity should enjoin.
When, therefore, the corpus of the
partnership property is taken in
execution for a joint debt, though
not contracted in the course of
the business of the firm, a credi-
tor who has levied for a separate
debt, can have no greater right
than that of the defendant in whose
shoes he stands.

The conversion of the property
of the firm into the separate prop-
erty of one or more of the part-
ners, does not necessarily hinder
or delay the partnership creditors ;
Mayer v. Clark, 40 Alabama, 259.
They may still take the property
in execution, or it may be sold by
the party who has acquired the
title, and the proceeds appropriated
to the joint debts. But the part-
nership creditors may be prejudiced
by such a change, because the pur-
chasers may apply the property to
the payment of their separate
debts, and because such an appro-
priation will be made b}' the law if
a commission of bankrujDtcj' issues
against them ; Ex parte Ruffin, 6
Vesey, 119; Miller v. Estell, 5
Ohio, N. S. 508. The transfer will
consequently be invalid unless
characterized by good faith ; Ex
parte Williams, W Vesey, 3.

Good faith is in this, as in most
other cases, a question of intention
as deduced from circumstances
which do not readily admit of
classification ; see Ex parte Wil-

SILK V. PRIME.

401

Hams ; Ex parte Mayou^ 11 Jurist,
N. S. 433 ; Ex parte Feake, 1 Had-
dock, 346. The presumption in
favor of a sale for value, and in the
course of business is not rebutted
by the insolvency of the vendors,
whether they act individually or as
a Arm. Such a sale may afford the
means of paying the partnership
debts, or retrieving the fortunes of
the concern ; W Donald v. Beach, 2
Blackford, 55 ; Frank v. Peters, 9
Indiana, 343. In WDonaldv. Beach
and Frank v. Peters, such consid-
erations were, with less reason,
hel4 to justify a member of an in-
solvent firm in transferring his in-
terest to the others. Whatever
may be thought on this head, it is
clear that a transfer tending by a
natural consequence, to divert
partnership effects to the separate
creditors, without leaving enough
to ])a.j the joint debts, is construc-
tively fraudulent as it regards the
partnership creditors, and may be
set aside by them, unless the assets
are received in satisfaction with-
out notice, or have passed into the
hands of a bona fide purchaser ;
Sanderson v. Stockdale, 11 Mary-
land, 563; Flack v. Charron, 29
Id. 34 ; Collins v. Hood, 4 M'Lean,
186; Ferson v. Monroe, 1 Foster,
462; Burtus v. Tisdell, 4 Barb.
5tl ; Anderson v. Mallhy, 4 Brown
Ch. ; 2 Vesey, Id. 244 ; Ex parte
Mayou, 11 Jurist, N. S. 463. As
the members of an insolvent firm
cannot apply the partnership assets
to their private debts consistently
with the faith due to the partner-
ship creditors, so they cannot effect
such a purpose indirectly by dis-
tributing the assets among them-
TOL. II. — 26

selves, and then making the appro-
priation ; Ransom v. Van Deven-
ter, 21 Barb.; Burtus v. Tisdell.
Such indirection is an additional
badge of fraud.

It should nevertheless be ob-
served that a distribution of the
partnership assets among the part-
ners, or a sale by one of the part-
ners to the others of his interest in
the firm, passes the right of prop-
erty as between the parties, and
against all the world except the
partnership creditors, and can only
be impeached by them by obtain-
ing judgment and proceeding to
execution, or filing a bill in equity ;
Jones V. Lusk, 2 Metcalfe, Ky.
356; Sage v. Gholler, 21 Barb.
496. A creditor at large has no
standing in either jurisdiction, be-
cause his right is not ascertained,
and because he has not exhausted
his legal remedy. The objection
is technical and may be removed
bj' the legislature, and a partner-
ship or other creditor may come at
once into chancery, under the stat-
ute law of Maryland, for relief
against a transaction by which he
is prejudiced ; Sanderson v. Stock-
dale ; Flack V. Charron.

In the determination of such
questions, regard must be had to
the actual, rather than the nomi-
nal resources of the firm. It is im-
material that the accounts show a
balance in their favor, if it is made
up of demands that are stale, or
cannot be collected within a rea-
sonable time; see Flack v. Char-
ron, 29 Maryland, 311. So a
transaction which hinders the firm
from meeting their engagements,
may be fraudulent, although they

402

EQUITABLE ASSET

are not actually insolvent ; Deveau
V. Fowler, 2 Paige, 400 ; Grooker
V. Grooker, 46 Maine, 250. Oil the
other hand, it -will not readily be
presumed tliat a partner whose
private means are incontestibly
adequate to pay all his debts, is
guilty of a fraud in disposing of his
joint property to the other mem-
bers of the firm, and such an ar-
rangement maj- consequently be
sustained, notwithstanding their
insolvency and that of the firm ;
see JSx parte Feake, 1 Maddox,
34t ; see Ex parte Baffin, 6 Vesej"-,
119 ; Fx parte Williavis, 11 Id. 3 ;
Baker's Appeal, 9 Harris, 66.

It is proper to observe that a
sale of the interest of a partner to
the other members of the firm, is
more open to exception in Eng-
land than in the states which fol-
low the original doctrine of chan-
ceiy, that the conversion of joint
into separate property determines
the paramount equity of the part-
nership creditors, without post-
poning them to the separate credi-
tors of the partners.

The principle is clearly stated
in Wilson v. Robertson, 21 New
York, 592. " It is conceded
that the creditors of the firm are,
legally and equitably, first entitled
to the partnership effects. Such
creditors have a claim upon the
joint effects prior to every other
person, which the court will en-
force and protect alike against the
individual partners and their credi-
tors. Indeed, the partnership prop-
erty must be exhausted in satis-
fying partnership demands before
resort can be had to the individual
property of the members of the

firm. The firm is not liable for
the private debts of one of its mem-
bers, nor is there any liability rest-
ing upon the other members in
respect to those debts. An appro-
priation of the firm property to
pay the individual debt of one of
the partners is, in efiect, a gift
from the firm to the partner — a
reservation for the benefit of such
partner, or his creditors, to the
direct injury of the firm creditors.
Can it be reasonably doubted that
when an insolvent firm assign their
effects for the payment of the pri-
vate debts of a member, for which
neither the firm nor the other
members, nor the firm assets, nor
the interest of the other members
therein, are liable, such an assign-
ment and appropriation are a direct
fraud upon the joint creditors of
the assignors ? An insolvent co-
partner, says the late chancellor,
who was unable to pay the debts
which the firm owed, would be
guilty of a fraud upon the joint
creditors, if he autliorized his
share of the property of the firm, to
be applied to the payment of a
debt for which neither he nor his
property was liable at law or in
equity ; Kirhy v. ScJwonmaker, 3
Barb. Ch. R. 48 ; Buchan v. Sum-
ner, 2 Id. 201."

The rule that one who is unable
to pay his debts, cannot justly al-
low property belonging to him, or
on which he has a lien, to be appro-
priated to the payment of a debt,
which is not his {ante, 394), has
sometimes been overlooked by the
courts from the desire to uphold
transactions which though tending
to postpone the joint creditors

SILE V. PRIME.

403

were yet free from actual fraud.
In Sigler v. The Knox County
Bank, 8 Ohio, N. S., a transfer by
an insolvent firm was sustained
against a levy for a partnership
debt, although the consideration
was for the greater part the indi-
vidual debt of a partner, and the
insolvency of the firm was known
to all concerned. In Allen v. The
Garter Valley Railroad Co., 21
Conn. 130, sundry articles belong-
ing to an insolvent firm were sold
by them, and paid for in the stock
of a manufacturing company,
which was transferred to the part-
ners individually, and soon after-
wards attached by their separate
creditors. The court held the
attachments and the whole trans-
action valid against the creditors
of the firm. It was said that while
the business of a partnership was
carried on, insolvency did not pre-
clude the right to convert joint
property into separate, or to distri-
bute the partnership funds among
the members of the firm.

From the right of the firm to
the partnership assets, results the
duty to see that they are appro-
priated to the payment of the
joint debts. For this purpose,
each member of the firm has an
equitable lien extending to the
whole of the common stock, to
which the partnership creditors
may be subrogated as against the
partners individually and their
separate creditors ; Ilatlack v.
James, 2 Beaseley, 126; M'Nutt
V. Slrayhorn, 3 Wright, 269 ;
Backus V. Murphy, lb. 397 ; Bean
v. Phillips, lY Indiana, 406 ; Dmw-
Aam V. iTawjia, 18 Id. 270; Talbot

V. Pierce, 14 B. Monroe, 195;
Barron v. Miller, 4 Bush. 25 ;
Black V. Black, 7 B. Monroe, 210 ;
Washburnv. The Bank of Belows^
Falls, 19 Vermont, 278. This
equity is ordinarily subject to the
control of the firm, but may be-
come indefeasible, through the
lien of a judgment or execution,
or on the conversion of the assets
into a fund, by an assignment
in bankruptcy or insolvency, or
by the death of the last surviv-
ing partner; see Tillinghast v.
Champlin, 4 Rhode Island, 173 ;
JSoskins v. Everett, 4 Sneed. 531 ;
Thompson v. Frist, 15 Maryland,
24 ; Hawkeye Mills v. Gonklin,
26 Iowa, 422; Gwin v. Selby, 5
Ohio, N. S. 96 ; Miller v. Estell,
Id. 508, 517 ; Wilson v. Soper, 13
B. Monroe, 411 ; Baker's Appeal,
9 Harris, 76 ; Pherrman v. Koch,
1 Cincinnati, 460.

It is not essential to the vindi-
cation of the equity of the part-
nership creditors, that the assets
should have passed from the hands
of the firm into those of an adminis-
trator or assignee, and a chancel-
lor may on proof of insolvency,
and that there is good reason for
believing that the partnership
property has been, or will be mis-
appropriated, award an injunction
at the instance of a judgment
creditor, and appoint a receiver to
wind up the business of the firm ;
see Gollins v. Hood, 4 M'Lean,
186 ; Jones v. Lusk, 23 Metealf,
Ky. 356 ; Allen v. The Center
Valley Co., 21 Conn. 130 ; Bard-
well V. Perry, 19 Vermont, 202;
Washburn v. The Bank of Bel-
lows' Falls, lb. 278 ; Burtus v.

404

EQUITABLE ASSETS.

TisdeU, 4 Barb. 5T2 ; Tillinghasi
V. Ghamplin, 4 Rhode Island, 174,
189. But such relief will not be
granted at the suit of a creditor at
large, whose right has not been
ascertained by a judgment ; see
Jones V. Lusk ; Sage v. Chollar,
21 Barb. 496 ; Hoxie v. Carr ;
Sanderson v. Stockdale, 17 Mary-
land ; Black v. Bush, 7 B. Mon-
roe, 211 ; ante, 401.

In Jones v. Lusk, 2 Metcalf, Ky.
356, 361, the court held, that " the
only insolvency that will author-
ize a chancellor " to decree priority
of paj'ment in favor of partnership
debts, is that which is ascertained
and established by a judgment,
execution and return of no prop-
erty against one or more of the
partners." " An allegation that
the firm or the partners composing
it are unable to pay their debts,
does not constitute a ground of
equitable jurisdiction." Such is
no doubt the rule where the right
to come before a chancellor for a
remedy is in question, ante, 401,
but it may be thought, that the
eouit went too far in holding that
an appropriation of the assets to
a separate partner is valid although
the creditor has notice of the in-
solvency of the firm, unless this
has been established by a return
of nulla bona.

The authorities in Vermont and
Iowa take the more reasonable
ground, that a prima facie case
of insolvency alleged in pleading,
and substantiated by any sufficient
means of proof, will authorize the
court to enjoin a levy on the joint
assets for a separate debt ; and it
may be inferred that an injunction

will also be awarded when there is
just cause to apprehend such
a misappropriation by the firm.
See Washburn v. The Bank of
Bellows, 19 Vermont, 278 ; Hub-
bard v. Curtis, 8 Iowa, 13.

In Thompson v. Frist, 15 Mary-
land, 24, a levy for a separate debt
on the partnership property, was
held to be a sufficient ground for
a bill by the co-partners praying
for an injunction and the appoint-
ment of a receiver to wind up the
business of the firm and distribute
the assets among the joint credi-
tors ; and such, also, seems to be
the rule in Mississippi ; Sanders
V. Young, 31 Mississippi, 111.

The dissolution of a firm does
not extinguish the equities of the
partners, or preclude the right to
require that the assets shall be ap-
plied to the joint liabilities;
Menagh v. Whitivell, 52 New York,
146, 166 ; Benson v. Ela, 4 Fogg,
402 ; Bearcroft v. Beaver, 1 Cold-
well, 430 ; Smith v. Haviland,
cited 2 Paige, Ch. 400 ; Wilson v.
Soper, 13 B. Monroe, 411, 418.
And as such a result does not en-
sue where all retire, so it will not
follow from the death or with-
drawal of one ; Benson v. Ula. It
is well settled, that on the decease
of a member of a firm, his adminis-
trator may insist that his estate
shall be exonerated at the expense
of the assets in the hands of the
surviving partners. A release or
assignment by the administrator,
will not vary the case unless it is
so worded as to pass the corpus
of the partnership property, as dis-
tinguished from the interest of the
decedent in the surplus after the

SILK V. PKIMB.

405

payment of the partnership debts ;
Smith V. Haviland. The princi-
ple is the same where a partner
withdraws, and the remaining
partners agree to take charge of
the stock and effects, and pay the
debts; Deveau v. Fowler^ 2 Paige,
400. Such a stipulation is im-
plied wherever a partner under-
takes to liquidate or wind up
the business of the concern, and
fortifies, rather than extinguishes
the interest of the outgoing part-
ner in the due administration of
the assets ; Deveau v. Fowler, 2
Paige, 400.

But an absolute assignment by
a retiring partner not only defeats
the equity of the joint creditors,
but may, in the course of events,
postpone them to the obligations
incurred by the remaining mem-
bers of the firm. That A. has
parted with his share in the con-
cern to B. and C. is no reason why
an execution should not be levied
on the assets in their hands for an
antecedent obligation of the three ;
see Menagh v. Whitwell, 52 New
York, 150, 156, 161; but as A.'s
equity is at an end, neither he nor a
creditor claiming through him, can
insist that the execution shall pre-
vail over a prior levy for a debt
incurred by B. and C, or an as-
signment for the benefit of their
separate creditors ; Dimon v. Haz-
ard, 32 New York, 65. The con-
trol of the partnership property
now belongs to the remaining
members of the firm, and they may
say whether it shall be appropri-
ated to the obligations of the former
firm, or of the new ; Frow, Jacob
& Oo.'s Estate, 23 P. F. Smith, 45 ;

Howey. Lawrence, 9 Gushing, 553 ;
Bobb V. Mudge, 14 Grey, 534.
A suggestion to the contrary in
Menagh v. Whitwell, 52 New York,
is not in accordance with the au-
thorities, and is at variance with
the letter and spirit of such trans-
fers, which are that the remaining
partners shall have the absolute
power of disposition which results
from ownership. It is the equity
of the remaining partners, and not
of the partner who has sold out,
which gives the debts for which
they are jointly liable with him,
priority over the private debts of
the members of the firm. The
principle is the same where the
administrator of a deceased part-
ner sells his share of the partner-
ship stock absolutely to the sur-
viving members of the firm ; Wil-
son V. Soper, 13 B. Monroe, 411.

The difference between such a
sale and that of the interest of a
partner in the residuum after the
payment of the firm debts, was
clearly pointed out in Wilson v.
Soper. Simpson, J., said : " There
is a marked distinction between
this and the case of Smith v. Havi-
land, referred to by Chancellor
Walworth, in the decision of the
case of Deveau v. Fowler, 2 Paige
Chancery Reports, 400. There the
administrator of a deceased part-
ner assigned all his interest in the
partnership effects to the survivor,
under an agreement that the latter
should pay and discharge all the
debts of the firm, and it was de-
cided, that the agreement only
transferred the interest of the ad-
ministrator in the surplus, after
the payment of debts, and conSe-

406

EQUITABLE ASSETS.

quently did not destroy his lien or
equity to have so mucli of tlie part-
nership property applied to the
paj'ment of the debts as was neces-
sary for that purpose. The ground
of that decision was evident. The
interest of the administrator in the
partnership effects was all that was
sold. It was the same interest
which his intestate had, and which,
if assigned by him in his lifetime,
would only have invested the pur-
chaser with the assignor's share of
the surplus, if any there should be,
after the partnership affairs were
fully wound up. But in this case
the administrator sold to the sur-
vivor one-half of the goods specifi-
cally, not subject to the payment
of debts, but for their full value
and without any I'eservation. By
the purchase, the goods became the
sole propert}' of the purchaser, and
the proceeds of the sale were assets
in the hands of the administrator.
It does not appear that the par-
ties made any arrangement for the
payment of the debts, but it may
be inferred from their conduct,
that they regarded the debts due
to the firm as sufficient to dis-
charge all its liabilities, and that
the administrator relied upon that
portion of the assets of the firm as
sufficient for the payment of its
debts."

It results from what is here
said that a release by an outgoing
partner does not necessarily ex-
tinguish his equity or that of the
joint creditors. The question is
not so much what he transfers, as
the effect on the obligation of the
remaining partners, which depends
on the contract with them as a

whole. If they are to wind up the
business of the firm and apply the
assets to the partnership debts,
it is immaterial as it regards the
creditors, that no part of what re-
mains will belong to the retiring
partner ; see Beveau v. Fowler, 2
Paige, 400. But an express or
implied agreement that the re-
maining partners shall employ the
partnership capital or stock in
trade, in business on their own
account, divests the lien of the
retiring partner by giving birth to
new rights and liabilities.

The withdrawal of a member of
a firm attended with an absolute
release or transfer of his interest
in the partnership effects, does not
vary the equities of the remaining
partners to insist that the assets
shall not be appropriated to the
private debts of any one or more
of them, to the prejudice of their
joint obligations, whether con-
tracted before or since the dissolu-
tion of the pre-existing firm; and as
this equity belongs to them, so it
may be enforced for the protec-
tion of the joint creditors. See
Menagh v. Whitwell, 52 New
York, 146. The right of prop-
erty and disposition devolves on
the newly constituted firm, who
may prefer the joint debts which
are exclusively their own, or post-
pone them to the debts which they
owe in common with the retiring
partner. See Frow, Jacobs &
Go.'s Estate, 23 P. P. Smith, 45 ;
Howe V. Lawrence, 9 Gushing,
553; Robb v. Mudge, 14 Gray,
534.

The principle is the same where
one of two co-partners sells his

SILK V. PRIME.

407

share of the common stock to the
other, although the application of
it is so far different that all the
debts of the remaining partner
now stand at the same level, and
he may prefer his private credi-
tors, or postpone them to the
creditors of the firm. See Dimon
V. Hazard, 32 New York, 65. In
Dimon v. Hazard, the court held
that where one of two partners
retires from the firm, relinquishing
all his title to the partnership
property to the other, the latter
acquires the same dominion over
it, as if he had always been the
sole owner, and may consequently
appropriate it to the payment of
his separate debts. Converselj'' the
separate creditors cannot object
to an appropriation of his assets
to the debts of the firm.

The insolvency or bankruptcy
of the remaining partner, followed
by the appointment of an assignee,
may, however, vary the case by
bringing the fund within the
operation of the arbitrary rule
that the separate estate of a bank-
rupt is to be applied in the first
instance to the payment of his
separate debts, and that the joint
creditors have no claim until
tliese are satisfied. Ex parte
Buffin, 6 Vesey, 119 ; Ladd v.
Oriswold, 4 Gilman, 25 ; Bebb v.
Mudge, 14 Gray, 534 ; Howe v.
Lawrence, 9 Gushing, 553,posi.

The doctrine that the equities
of the partners, and consequently
of the joint creditors are not af-
fected by a dissolution of the firm
was applied in Benson v. Ela, 4
Fogg, 402, under the following cir-
cumstances. The machinery of a

cotton mill, belonged to the firm of
Briggs & Brothers, consisting of
Joshua, John and James Briggs,
and John Andrews. Joshua Biiggs,
died on the first day of October,
1846, and John Briggs in February,
1848. In both cases the surviving
members of the firm continued the
business as co-partners — the three
survivors under the firm name of
James Briggs & Brothers, and the
two under that of James Briggs <fe
Brother. The machinery was used
by the successive co-partnerships
in their business as manufacturers,
until October, 1851, when the firm
of James Briggs & Brother became
insolvent. Attachments were then
laid on the machinery by tlie
creditors of that firm, by the credi-
tors of James Briggs & Brotliers,
and by the creditors of the origi-
nal firm of Briggs & Brothers. It
was held that on the death of
Joshua Briggs, his administrators
succeeded to his right to have the
partnership assets applied to the
payment of the joint debts. A
similar equity accrued on the
death of John Briggs to his
personal representatives, which,
though inferior to that of the
creditors of the original firm, was
yet good relatively to the debts
incurred by the survivors. It fol-
lowed that the proceeds of the
machinery were to be applied in
ttie first instance to tlie payment
of the debts of the first firm, then
to tliose contracted by the second,
and the surplus would finally
go to the creditors of the survi-
ving partners. Such at least
would be the result as it re-
garded the attaching creditors who

408

EQUITABLE ASSETS.

had alleged the cause of action
as originating in the contract of
the iirm as originally consti-
tuted, and then deduced the obli-
gation regularly to the survivors.
But the creditors who had de-
clared against the defendants, not
as survivors of the antecedent part-
nership, but on a contract to which
they were set forth as being the
onljr parties, were estopped by the
record, and could not go benind
the judgment for the purpose of
showing that the deceased part-
ners were also bound by the obli-
gation.

If we now turn from the power
of the firm to that of the partners
individuallj', it will appear that a
sale by a partner or under an exe-
cution against him for his separate
debt, can confer no greater interest
than he has himself, to wit, his
share of the assets after the paj'-
ment of the partnership debts :
Menagh v. Whitwell, 52 New
York, 146 ; Nicoll v. Mumford, i
Johnson Ch. 522. The purchaser
does not acquire a right of pos-
session ; Horton's Appeal, 1 Har-
ris, 61 ; and is merely entitled to
what may prove to be due to him
on a settlement of the partnership
accounts, which will be nothing un-
less the partnership effects exceed
the liabilities. See Christian v.
Ellis, 1 Grattan, 396 ; Renton v.
Chaplin, 1 Stockton Ch. 62 ; In
the matter of Smith, 16 Johnson,
162 ; Neall v. Mumford, 528
Holmes v. Murtze, 4 A. & E. 12T
Garrett v. Veale, 5 Q. B. 408
Johnson v. Evans, T M. & Q. 240
Deal V. Bogue, 8 Harris, 228
Pech V. Fisher, 'I Gushing, 586

Booh V. Mclntyre, 31 Ala. 532 ;
Barnwell v. Springfield, 15 Id.
273 ; Sanders v. Young, 31 Mis-
souri, 111; Smith V. Barker, 10
Maine, 458; Crooker v. Crooker,
46 Id. 250, 265; Thompson v.
First, 15 Marj'land, 24; Newman
V. Bean, 21 New Hamp. 93 ; Mor-
rison V. Blodgett, 8 Id. 250 ; Gib-
son V. Stevens, 7 Id. 352. The
right of custody and control re-
mains in the partnership, and the
assignee maj^ be enjoined from
withdrawing the effects or any
part of them ; Horton's Appeal.

The equities of the members of
the firm including the assignor
stand as thej^ did before, and may
be enforced at the instance of the
joint creditors. A levy and sale
for a partnership debt will conse-
quently pass the title as against a
mortgage or transfer by a member
of the firm, for his individual
debt, or out of the course of the
partnership business : Menagh v.
Whitivell ; Smith v. Anderson, 49
Illinois, 48. The principle is the
same whether the transfer is the
act of the partj', or the act of the
law ; Taylor v. M'Donald, 4 Vesey,
396 ; Menagh v. Whitwell, 52 New
York, 146, 166; and is not less
applicable to an assignment in
bankruptcy, or a sale under an
execntion for a separate debt, than
it is to a voluntary assignment for
the benefit of the creditors, or to
a sale made by the partner indi-
vidually in the ordinary course of
business. The doctrine was clearly
enunciated in Taylor v. Fields, 4
Yesey, 396. " The corpus of the
partnership effects is joint prop-
erty, and neither partner has sepa-

SILK V. PRIME.

409

rately anything in that corpus,
but the interest of each is only his
share of what remains after the
)iartnership accounts are taken.
In law there are three relations:
first, if a person chooses for valua-
ble consideration to sell his inter-
est in the partnership trade ; for it
comes to that ; or if his next of
kin or executors take it upon his
death ; or if a creditor takes it in
execution, or the assignees under
a commission of bankruptcy. The
mode makes no difference ; but in
all those cases the application
takes place of the rule, that the
party coming in the right of the
partner comes into Nothing more
than an interest in the partner-
ship, which cannot be tangible,
cannot be made available, or be
delivered, but under an account
between the partnership and the
partner; and it is an item in the
account, that enough must be left
for the partnership debts."

It is an equitable consequence
of these principles that a levy for
a separate debt on the assets of
the firm, must be confined to the
right, title and interest of the
defendant. The sheriflT cannot
take the goods into his posses-
sion to the exclusion of the firm,
or even of the debtor partner, nor
can he deliver the goods to the
purchaser without becoming liable
as a trespasser; Reinheimer v.
Hemingway, 11 Casey, 4.32 ; Gib-
son V. Stevens, 1 New Hamp. 352 ;
Morrison v. Blodgett, 8 Id. 238 ;
Newman v. Bean, 21 Id. 93; Hill
V. Wiggin, 31 Id. 292 ; Treadwell
V. Broion, 43 Id. 290; Jarvis V.
Brooks, 23 Id. 136; Crockett v.

Crane, 33 Id. 548. In the matter
of Smith, 16 Johnson, 432.

In like manner, trover or re-
plevin will lie against the pur-
chaser if he receives the goods,
although from the hands of the
sheriff, and carries them away or
converts them to his own use ;
Newman v. Bea,n ; Garvin v. Paul,
47 New Hamp. 158 ; Deal v. Bogus,
8 Harris, 228. His remedy, like
that of the defendant, in whose
place he stands, is through a bill
in equity against the firm ; Rainey
V. Nance, 54 Illinois, 29. In
Deal V. Bogue the court said that
such a levy and sale confers no
more right to the chattels and
effects of the firm, than does a levy
on the stock of a bank or railway
company to the property of the
corporation.

The right of the separate credi-
tors to proceed to execution against
the joint assets is indubitable;
Douglass V. Winslow, 20 Maine, 89;
Brewster v. Hewitt, 4 Conn. 541;
Barber v. The Bank, 9 Id. 401 ;
Reed v. Sheppardson, 2 Vermont,
126 ; and may be exercised,
although the firm is insolvent
and a sale under the writ will
not confer a beneficial interest on
the purchaser ; See Snodgrass' Ap-
peal, 1 Harris, 471, 475; Moody v.
Pa?/)ie, 2 Johnson, Ch. 548; Backus
V. Murpihy, 3 Wright, 397 ; Doner
V. Stauffer, 1 Penn. 198; Kelly'' s
Appeal, 4 Harris, 59 ; Cooper's
Appeal, 2 Casey, 262 ; because the
ends of justice are attained by
suffering the sheriff to dispose of
the right, title and interest of the
debtor partner, and then leaving
the purchaser to go into equity for

410

EQUITABLE ASSETS.

an account ; see Waters v. Taylor,
2 Vesey & Beames, 301 ; The
Bank V. Wilkins, 9 Greenleaf, 28 ;
Thompson v. Lewis, 34 Maine,
169 ; Siller v. Walker, 1 Freeman
Ch. 11, 1 American Lead. Cases,
5t9, 5 ed.

The authorities above cited de-
note two different views of the opera-
tion of a levy for a separate debt
on the partnership assets. In some
of the States the sheriff talses the
property into his own keeping, and
delivers it to the purchaser, al-
though the latter receives it sub-
ject to the equity of the firm, and
must account to them or to the
joint creditors, if the balance of
the partnership accounts proves to
be against the partner who is the
defendant in the execution ; see
Witter V. Bichards, 10 Conn. 8t;
White V. Woodward, 8 B. Monroe,
484; Newhall v. Buckingham, 14
Illinois, 405 ; Sanders y. Young, ol
Mississippi, 111. In other States
the sheriff levies on the right of the
partner, which is to have whatever
may be owing to him when the
partnership is wound up. The
levy is consequently of a demand
or chose in action, and not of the
chattels of the firm ; see Deal v.
Bogue, 8 Harris, 228, 234; and
the sheriff cannot remove them
from the keeping of the partners ;
In the matter of Smith, 16 John-
son, 432; Deal v. Bogue, ante;
Eeinheimer v. Hemingway, 11
Casey, 432 ; or deliver them to a
purchaser without exceeding his
authority. Where the former view
prevails the court will stay the levy
on due proof of the insolvency of
the firm; Hubbard v. Curtis, 8

Iowa, 1 ; Suss v. Fay, 3 Williams,
384 ; Shedd v. Wilson, 1 Id. 278 ;
Washburn v. The Bank of jBeZ-
lows' Falls,19Yermont,21S; Con-
verse V. M'Kee, 14 Texas, 20 ;
Place V. Sweitzer, 16 Ohio, 143 ;
Cropper v. Cohurn, 2 Curtis, 413 ;
Thompson v. Frist, 15 Maryland,
24 ; Sanders v. Young. Agree-
ably to the latter view there is
no need for such an intervention ;
see Cammack v. Johnson, 1 Green
Ch. 163 ; Moody v. Payne, 2 John-
son Ch. 548 ; and the joint credi-
tors may have an effectual remedy
by issuing an execution which will
supersede the levy of the separate
creditor ; Coovers' Appeal, 5 Casey,
9 ; ante, 394 ; Rainey v. Nance, 54
Illinois, 29. In Rainey v. Nance
the court said that a separate
creditor could acquire no lien
through his own act or the act of
the debtor, that would prevail
against a levy for a joint debt.
The only effect of a levy for a
separate debt, was to give the
plaintiff in the execution, a right
to what might be due to the debtor
under whom he claimed, on a set-
tlement of the partnership ac-
counts.

It may, nevertheless, be observed
that under the law of Pennsyl-
vania, the field is open to the joint
and separate creditors, and the
latter may be first by management
and diligence. For if the separate
creditors succeed in selling the
partnership property under execu-
tions against each of the partners,
before it is levied on by the joint
creditors, the corpus of the part-
nership property will pass to the
purchasers, and the proceeds of

SILK V. PRIME,

411

the sale be distributable among
the separate creditors, to the ex-
clusion of the joint creditors ; see
Vandyke's Appeal, 1 P. F. Smith,
9; Doner v. Staufer, 1 Penna.
198 ; Backus v. Murphy, 3 Wright,
39^. This is the more remarkable,
because what each pureha,ser ac-
quires is the right of the defendant
in the execution, which, if the firm
be insolvent, is naught ; Bice v.
Austin, 17 Mass. 19T; and it is
not easy to understand how their
interests can when aggregated
make up the sum total of the
partnership stock.

An execution for a separate
debt does not become a nullity
when brought into conflict with a
levy for a debt due by the firm,
because the separate creditor is
still entitled to the interest that
may result to the defendant in the
execution on the winding up of
the partnership. A sale under
both writs will pass the corpus
of the property, which has been
taken in execution, and the firm
will consequently have an equit-
able lien on so much of the pro-
ceeds, as is not required to pay
the joint debt. The proper course
therefore is to make a separate sale
of the right, title and interest of the
debtor partner in the partnership
stock as a whole, which will entitle
the purchaser to file a bill to ascer-
tain the quantum of the interest
which he has acquired ; see The
Commercial Bank v. Wilkins, 9
Greenleaf, 28 ; Douglass v. Wins-
low, 28 Maine, 89 ; Dunham v.
Murdock, 2 Wend. 553 ; Trow-
bridge V. Cuihman, 24 Pick. 310.
A different course is pursued in

Pennsylvania where the sheriff
sells under both writs, and if the
goods bring more than enough to
satisfy the joint debt, the surplus
is awarded to the separate creditor ;
see Backus v. Murphy, 3 Wright,
397 ; Coover's Appeal, 5 Casey, 9.

The foregoing principles are not
less well established under the au-
thorities in Pennsylvania than else-
where ; Deal v. Bogue, 8 Harris,
228. In the language of Chief
Justice Gibson, a separate execu-
tion creditor of the firm sells not
the chattels, but the interest of the
partner incumbered with the joint
debts ; " and such is also the effect
of a sale by a partner of his inter-
est in the firm. Yet it has been
held in that State that a sheriff's
sale to the same, or to different
persons, under writs issued against
each of the members of the firm for
debts due by them individually,
passes the corpus of the partnership
property, and not merelj^ the right
of the partners individually to
what will remain after the part-
nership is wound up. In like
manner, although, a sale by a
member of an insolvent firm con-
fers no interest on the purchaser,
a series of such sales may pass
the title as effectually as if the
property were conveyed by the
firm.

This doctrine dates from Doner
V. Stouffer, 1 Penna. 198. There
Daniel Howry and Benj. Eshelman,
entered into partnership as manu-
facturers. The firm became in-
solvent, and the members of it
were severally indebted in a con-
siderable amount. An execution
issued on the ninth of August,

412

EQUITABLE ASSETS.

aganist Howry for a separate debt,
and was levied on the property of
the firm, and a similar levy was
made on the eleventh of the month,
under an execution against Eshel-
man. The sheritf sold under both
writs, and the purchase-money was
paid into court. The plaintiff in
the writ against Eshelman claimed
one-half the fund, but bis applica-
tion was opposed by Howry, who
insisted that as the partners indi-
vidually had no beneficial interest
in the property, which was the
subject of the sale, so no right
could accrue under it to their sepa-
rate creditors, and that the pro-
ceeds should be applied as the
propertj' ought to have been, to the
joint debts. This argument was
overruled by the court, who direc-
ted the fund to be distributed pro
rata between the execution credi-
tors.

It does not appear that the
award could have been different
consistently with established prin-
ciples ; Vandike's Appeal, 1 P. F.
Smith, 9; Fenton v. Folger^ 21
Wend. 616. What the sheriff' sold
was not the goods of the firm, but
the individual interests of the
partners. That both executions
met in his hands, did not enlarge
the effect of either writ, or author-
ize him to convey a greater right
than would have passed by a sepa-
rate sale under each. The corpus
of the property consequently still
belonged to the partners, and might
have been taken in execution by
the joint creditors, and the separate
creditors were entitled to the pur-
chase-money as the proceeds of the
real or supposed interest of the part-

ners. That the purchaser bought
under a mistaken impression that
this had a value which it did not
possess, could not afiect the dis-
tribution of the fund.

The decision is therefore in an
entire accordance with the main
current of authority. This can
hardly be said of the reasons
given by the chief justice. He
asked, " what would have been
the effect had the sales been made
consecutively. The first in the
order of time would have passed
the interest of the partner, sub-
ject to the equity of his co-part-
ner, and the execution creditor
would have been entitled to the
price. But this equity together
with the remaining interest of the
other partner would have passed
bj^ the succeeding sale, the execu-
tion creditor in that instance also
taking the proceeds. It made no
difference that the sales were simul-
taneous, instead of consecutive.
When the shares of tlie partners
united in the same purchaser,
every semblance of partnership
equity was at an end."

The incongruity of such a result
may be illustrated by an example :
A. and B. are in partnership, and the
liabilities equal or exceed the as-
sets. A. has no beneficial interest
in the joint property, nor has B.,
and both are subject to the rule
that one cannot confer a greater in-
terest than he has. A purchaser
from either of them is simply en-
titled to what would have been
due to the vendor on the settle-
ment of the partnership accounts.
Yet if A. and B. agree severally to
transfer their respective interests,

SILK V. PRIME.

413

although each is ignorant of what
the other does, the purchasers
will acquire a title to the part-
nership stock, in what proportions
is not clearly apparent. See
Menagh v. Whihuell, 52 New
York, ] 46, 156. It may be inferred
from the language held in Doner
V. Siauffer, that each will take an
equal share, and yet it is obvious
from the premises, that if two such
sales are made successively, the
first is virtually inoperative, or
becomes effectual only through the
second.

The doctrine of Doner v. Stauf-
fer, was reiterated in Kelly's Ap-
peal, 4 Harris, 62 ; and Baker's
Appeal, 9 Harris, 16 ; where
Lewis, C. J., said, "the right of
the partners to insist on the appli-
cation of the joint assets to part-
nership claims may be waived, and
is waived when each partner dis-
poses of all his interest in the
partnership, and sales on separate
executions against the several
partners, have the same efi'ect as
sales by the individual partners
themselves." But the doctrine
was not requisite in any of these
instances to the decision of the
cause, which depended on other
and well established principles.

In M'Nutt V. Strayhorn, 3
Wright, 269, the doctrine of
Doner v. Stauffer, was applied.
There Smith and Taylor were en-
gaged in business as partners, and
on the 29th of September, 1858,
Smith made an assignment of his
interest in the firm, as also of his
private property, to Strayhorn and
Hobson, for the benefit of all his
creditors, which was accepted by

them. On the next day, Taylor
made a similar assignment to the
same assignees, which was also ac-
cepted. Thompson, J., said : "If
it were necessary to put the case ex-
clusively on the doctrine implied
by the remarks of Justice Kennedy,
in Deckert v. Filbert, 3 W. & S.
454, no doubt could exist but that
Smith assented to the assignment
of the stock by Taj^lor to the as-
signees named by Smith. The in-
ference necessarily exists in the
absence of testimony to the con-
trary. The partners acting to-
gether, cognizant of the aflairs
of the firm, select the same as-
signees, and make several assign-
ments within one day of each
other, and the inference is irresis-
tible that it was assented to as
a partnership assignment. But
the doctrine of Doner v. Stauffer,
1 Penna. Rep. 198, and the same
thing, in substance, in Kelly's
Appeal, 4 Harris, 59; Baker's
Appeal, 9 Id. 77; Goover's Ap-
peal, 5 Casey, 9, establish clearly
that the equities of creditors
are to be worked out through
the equities of the partners, and
that sales on separate executions
of the firm property, which de-
stroy the dominion of the partners
over it, destroy also the equity of
creditors whose liens have not
actually attached ; and the effect
by private sales cannot be less.
It cannot well be doubted, but
that this is a corollary of the first
position. If the property be
parted with by sales severally
made, and neither partner has do-
minion or possession, there is
nothing through which the equi-

414

EQUITABLE ASSET!

ties of the creditors can work, and
hence the rule will not apply. But
all we have to do with here, is the
question of the right of the sheriff
to levy after assignment made and
accepted. As we are of the opinion
that the firm property did vest, we
think he had no right to levy, and
the judgment must be afflrmd."

In Backus v. Murphy^ 3 Wright,
397, it was held to follow appa-
rently on the same ground, that
where partnership property is sold
under an execution for a joint
debt, and also under another exe-
cution for the individual debt of a
partner, and the proceeds paid into
court, the other partners and the
joint creditors have no claim, legal
or equitable on the fund, which,
after satisfying the joint execu-
tion, will be awarded to the sepa-
rate execution.

It cannot be said of this case, as
it may of Doner v. Stauffer, that
the firm, as such, were strangers
to the fund, 'ihe corpus of the
partnership property was sold, and
not the several interests of the
partners. The fundamental error
seems to have been the sheriff's, in
executing two different and incon-
sistent writs together. If the sales
had been separate, the partnership
would manifestly have been en-
titled to the surplus of the joint
execution ; and no prudent buyer
would have given anything for the
individual interest of a partner in
an insolvent firm. But the inciden-
tal association of the writs did not
enlarge the right of the separate
creditor, or entitle him to more
than he would have received if his
had been the only execution.

It seems to have been taken for
granted in Doner v. Stauffer, that
a transfer of a partner's interest
in the firm, frees the other par-
tners from all responsibility to
him, and therefore entitles them to
dispose of the assets as they deem
fit. It was only on this ground
that the second sale, which would
confessedly have been invalid as
against the firm had it been the
first, could be held to bind their
right. Such an assumption is
hardly reconcilable with the prin-
ciple enunciated by the chief
justice, that " a separate execu-
tion creditor sells not the chat-
tels of the partnership, but the
interest of the partner incum-
bered with the partnership debts."
So much, therefore, as may be
requisite for the discharge of the
encumbrance is impliedly excepted
from the sale. To this extent the
partner is still interested in the due
application of the property as a
ineans of discharging obligations
for which he is not less answerable
than he was originally. He has
consequently a clear equitable
right to require that the partner-
ship assets shall not be misappro-
priated, which cannot be defeated
by any act or transfer in which he
does not concur.

The case is essentially different
where a partner conveys the chat-
tels of the firm as such with the
consent of his co-partners, and they
make a simultaneous or subsequent
conveyance of a like kind. Under
these circumstances the assignee
acquires the things which consti-
tute the common stock, as distin-
guished from the right of the part-

SILK V. PRIME.

415

ner to an account ; The National
Bank v. Sprague, 5 C. E. Green,
13 ; Menagh v. Whitwell, 52 New
York, 500 ; Kimball v. Thompson,
13 Metcalf, 283 ; Flack v. Charon,
29 Maryland, 311, ante, 405. What
two or more persons can do jointly,
they may effect severally, ia obe-
dience to a common design. So a
grant by a partner of the assets of
the firm may be valid, if ratified by
them. But such a result will not
ensue from the several transfers of
the partners, imless it appears that
each intended to convey his undi-
vided share as a tenant in common,
and that all concurred. Still less
will it be produced by a court act-
ing on the partners individually
through executions issued for their
private debts. For as a partner
cannot legally appropriate the
whole or any part of the partner-
ship property to his private pur-
poses, such a design will not be im-
puted to him by the law ; nor will
the knowledge and assent of his co-
partners be presumed in the ab-
sence of proof. See Todd v.
Lorah, 25 P. F. Smith, 155;
Noble V. MGlintoclc, 2 W. & S.
152; Purdy v. Powers, 6 Barr,
494. This argument applies with
peculiar force where the pecuniary
condition of the firm is such that
appropriating the assets to a debt
which is not common to all the
partners, will impair the ability of
the partnership to fulfil the obli-
gation which it is under to the
joint creditors. See Menagh v.
Whitwell, 52 New York, 146.

It results from these considera-
tions that the same words may
have a different operation when

the interest of a partner is assigned
to a stranger, and when it is as-
signed to the other members of tiie
firm. In the latter case, the as-
sent of the co-partners is apparent,
in the former it must be proved.
In the one, all will pass that is not
expressly reserved, in the other,
nothing that the assignor may not
lawfully convey. See Menagh v.
Whitwell ; Wilson v. Soper, 13 B.
Monroe, 411, 415; ante, 4:05.

The question was carefully con-
sidered in Menagh v. Whitwell, 52
New York, 156. There two out
five members of a firm assigned
their shares to a third, who subse-
quently gave the plaintiff a chat-
tel mortgage of his interest in
the partnership effects, which
amounted to three-fifths ; the object
being to secure a private debt.
There could be little doubt, under
the evidence, that the mortgagor
intended to pass the corpus of the
partnership effects, and not merely
his right, title, and interest, sub-
ject to the payment of the partner-
ship debts ; and the assignee found
that the mortgage was executed
■with the assent of all the partners,
and that the partnership was
largely indebted, though not insol-
vent. The mortgagee went into
possession, and soon afterwards
proceeded to a foreclosure and
sale, and became the purchasers.
The remaining partners then con-
veyed all their interest in the part-
nership property to a third person.
Finally the sheriff levied on, and
sold the mortgaged property, by
virtue of an execution, which had
been issued for a joint debt, and
trover was brought against him by

416

EQUITABLE ASSETS,

the mortgagee. The court said
that if the mortgage was intended
to be a lien on the body of the
property, and not merely a lien on
the surplus which might result to
the mortgagor on a settlement of
the partnership accounts, it was
fraudulent as to the partnership
creditors, as tending to divert the
larger part of the partnership
assets from the discharge of the
joint liabilities. If, however, the
mortgage was merely designed to
bind the individual interest of the
mortgagor in the common stock,
it did not affect the right of the
joint creditors, which it was the in-
tention of the mortgagor to pre-
serve. In either aspect, the sheriff
was justified in taking the property
in execution under the judgment
which had been rendered for a
partnership debt. It had been
contended, on the authority of
Doner v. Siauffer, that if the mort-
gage was thus limited in its opera-
tion when originally made, still
when the remaining partner trans-
ferred his iiiterest in the property
of the firm, all the estate of the
partners passed from them, and
there was consequently nothing
left from which an equity could be
deduced in favor of the joint credi-
tors. The fallacy of this argu-
ment lay in not considering that a
a partner could not, by an assign-
ment of his interest, deprive the
other partners of their right to
have the demands against the
partnership satisfied out of its as-
sets. This was equally true,
whetlier each of the partners made
such a transfer, or only some of
them. In either case, a purchaser

would acquire the right of the
vendor as the latter held it, sub-
ject to the equities of his co-
partners.

Such are the principles as modi-
fled by equity which regulate the
distribution of the joint and sev-
eral effects of the members of a
firm. The partnership creditors
have a paramount right to the
joint assets, and the separate credi-
tors no priority as it regards the
private property of the partners,
except that which the}' may ac-
quire through greater diligence.
A difierent rule has finally obtained
in England, agreeably to which
" the debts of a partnership are first
paid out of the partnership effects,
and afterwards the joint creditors,
when the separate creditors are
satisfied, may come in upon the
separate effects, but not before ;
and so vice versa the separate ■
creditors are to come in first on
the separate effects of the part-
ners, and if these are not sufficient,
then on the joint effects after the
partnership creditors are paid."
Ux parte Bowlandson, 3 Peere
Williams, 405 ; 2 Eq. Abr. 110, pi.
2 ; Fall Biver Go. v. Borden, 10
Gushing, 458. This doctrine seems
to have been adopted in bankruptcy
from convenience, and is now fol-
lowed analogically when the ques-
tion arises in the distribution of
the estate of a deceased partner
by his personal representatives ;
Wilder v. Eeeler, 5 Paige, 167 ;
Bidgway y. Glare, 19 Beavan,
111. It has a wider scope in this
country, and applies in some of
the States whenever a levy for
a joint debt is brought in conflict

SILK V. PRIME.

417

with a levy for the separate debt
of a partner. The nice considera-
tions which govern a court of
equity are disregarded, and the
question is not who has the better
right or was first in point of time,
but whether credit was given to
the partner individually or to the
firm. Such a method is confessedly
without foundation in principle,
but has the merit of saving time
and costs by cutting short a num-
ber of questions which it might
be tedious to unloose. It did not
obtain a foothold even in bank-
ruptcy until half a century after
it was introduced, having been re-
jected by Lord Thurlow, re-estab-
lished by Lord Roslyn, aud acqui-
esced in by Lord Eldon from
deference to his predecessor, and
that the separate creditors of a
partner might not be compelled
to await a settlement of the ac-
counts of the firm. See Bell v.
Newman^ 5 S. & R. '78.

It is easier to state the rule than
to ascertain the exact foundation
on which it rests ; see Lmdley on
Partnership^ 1098. On one side
this may be traced without much
difficulty. The paramount right
of the joint creditors is generally
conceded as resulting from the
equitable lieu of the firm, and it
has been said that this branch of
the rule leads by a necessary
sequence to the other. As the
separate creditors are excluded
from the partnership assets, it is
only just that they should have a
first claim on the separate estates
of the partners. So much is due
to the theory of equality, which
requires that all debts shall be paid
VOL. II. — 27

ratably. Where a partner dies in
the lifetime of another member of
the firm, the joint creditors have
no legal claim on his estate, and
should not be admitted by a Chan-
cellor to the prejudice of the separ-
ate creditors. Although this argu-
ment does not apply where the
security for the debt is joint and
several, nor where the joint and
several assets devolve on the ad-
ministrator of a surviving partner,
reason and analogy require that
insolvent estates should be admin-
istered according to a uniform rule,
not varying with the accident of
death or the issuing of a commis-
sion of bankruptcy; Murrill v.
Neil^ 8 Howard, 414; Rogers v.
Meranda, 1 Ohio, N. S. 1T9.

It has been said with as much
force in other instances, that
the superior right of the joint
creditors to the partnership assets,
is no reason for excluding them
from another fund on which
they have an equal claim; The
Bank of Kentucky v. JReizer, 2
Duvall, 169; Whiteheads. Chad-
well, lb. 432. Their priority grows
out of the lien of the firm upon the
partnership property ; but there is
no such ground for preferring the
separate creditors in the distribu-
tion of the private property of the
partners. It is conceded that dur-
ing the lifetime of a partner, the
obligations of the firm are also
his, and a chancellor cannot re-
gard this as ceasing to be true at
his death, because in equity part-
nership debts are joint and several ;
Wisham v. Lippincott, 1 Stockton
Ch. 353 ; Williams v. Henderson,
1 Mylne & Keen, 582. The rule

418

EQUITABLE ASSETS.

in bankruptcy is one of positive
law, and peculiar to the statutory
jurisdiction in which it originated.
It should not, therefore, be ajiplied
when assets are brought into a
Court of Chancery for distribution
on equitable principles. Still less
does it afford a precedent for post-
poning a levy on the separate
estate of a partner for a joint debt,
to a subsequent levy by a separate
creditor. The firm creditors may
be required under the doctrine of
marshalling to look to the joint
fund until that is exhausted ; see
Murray v. Murray^ 5 Johnson
Ch. 60, 72; Meech v. Allen, lY
New York, 300 ; but there is noth-
ing in this to justify their exclu-
sion from the separate property
of the partners, or that should de-
bar them from resorting to it as a
means of supplying any deficiency
that may exist in the joint fund ;
Allen Y. Wells, 22 Pick. 450, 456;
Bardwell v. Perry, 19 Vermont,
202; Gamp v. Grant, 21 Conn. 25.
The former view is now adopted
by the Supreme Court of the
United States, and by a majority
of the State tribunals ; Morrison
V. Kurtz, 15 Illinois, 193 ; Adams
V. Sturgis, 55 Id. 468; M'Gullogh
V. Dashiell, 1 Harris & Gill, 96 ;
Glen V. Gill, 2 Maryland, 1 ;
Ridgely v. Carey, 4 Har. &
M'Henry, 16f; Murrill v. Neill,
8 Howard, 414 ; Egberts v. Wood,
3 Paige, 518; Payne v. Matthews,
6 Id. 20 ; Robb v. Stevens, 1 Clarke,
192 ; Ladd v. Griswold, 4 Oilman,
25 ; Hall v. Hall, 2 M'Cord, Ch.
269, 302 ; Rodgers v. Meranda, 7
Ohio, N. S. 1Y9 ; Smith v. Mallory,
24 Alabama, 628 ; Bridge v. M Gul-

lough, 21 Id. 661; Damon v. Phil-
lips, 11 Indiana, 405, 409 ; Oakey
v. Gasey, 1 Freeman, 536 ; Irby v.
Graham,, 46 Mississippi, 425, 431 ;
White V. Thornhurgh, 15 Indiana,
1 24 ; The Moline Man. Go. v. Web-
ster, 26 Illinois, 233. It is also
established by the existing Bank-
rupt Law as that which must pre-
vail, where a commission issues
against a firm and the partners.

The only ground on which this
course of decision can be vindica-
ted is that the joint debts are con-
tracted exclusively on the credit
of the partnership assets, and the
separate debts on that of the pri-
vate estate of the members of the
firm. If this be conceded, the en-
tire failure of the joint assets is
no reason for allowing the partner-
ship creditors to come in on the
separate assets. It has, neverthe-
less, been held that where there is
no joint estate, and no living sol-
vent partner, the joint creditors
may prove against the separate
estate of a deceased or bankrupt
partner; Ladd v. Griswold, i
Gilman, 25 ; Sperry's Estate, 1
Ashtnead, 347 ; Wilder v. Keeler, 3
Paige, 167 ; Emanuel v. Byrd, 19
Alabama, 596 ; Rogers v. Miranda,
7 Ohio, N. S. 179, 190; Glaghorn
V. The Bank, 9 Georgia, 319. This
exception has been rejected in
some of the States as contrary to
the principle of the rule ; If Gul-
logh V. Dashiell, 1 Harris & Gill,
96; Murrill v. Neil., 8 Howard,
414; White v. Thornburgh, 15 In-
diana, 124.

It is, nevertheless, essential to
the due administration of a rule
which might otherwise lead to

SILK V. PRIME.

419

harsh and inequitable results. If
it did not exist, a sale by an in-
solvent partner to his co-partners,
followed by the insolvency of the
firm, would be equivalent to an
entire exclusion of the partnership
creditors, ante, 402. The reason
for it appears from the case of
Ladd V. Griswold. There an out-
going partner sold his interest in
the concern to his co-partner and
died insolvent, and it was held
that although the joint property
had thereby become separate, the
joint creditors might by force of
exception come iu pari passu with
the separate creditors of the re-
maining partner.

The exception will not be made
where there is a joint fund however
small, and although arising from
the act of the separate creditors
in purchasing worthless assets for
the sake of excluding the joint
creditors ; Smith v. Mallory, 24
Alabama, 628.

A creditor who holds a joint
and several security for the debt of
a bankrupt firm, may elect against
which estate he will proceed, but
is not entitled to a dividend from
both ; see Ex parte Bowlandson,
3 Per. Wms. 405 ; Ex parte Bond,
1 Atkyns, 98 ; but the rule against
double proof does not apply, unless
the separate estate is brought into
bankruptcy for administration, nor
where it is in the hands of an ad-
ministrator, or has been assigned
voluntarily for the benefit of credi-
tors ; see Morris v. Morris, 4
Grattan, 293 ; Wilder v. Keeler, 8
Paige, 167 ; Bouser v. Cox, 6
Beavan, 84 ; 1 Tudor's Leading
Cases, 586. It was notwithstand-

ing held in Oanson v. Lathrop,25
Barb. 445, that a partnership credi-
tor is not entitled to a dividend
from the estate of a deceased part-
ner, although the contract is in form
joint and several, or secured by the
partner's guaranty or endorsement.
The grounds on which the rule
was originally applied in the ad-
ministration of the estate of a de-
ceased partner, were clearly stated
in Arnold v. Hamer, 1 Freeman,
Ch. 509. "It is well settled that
upon the death of one of several
partners, a joint creditor has no
claim for the payment of his debt
out of the separate estate of the
deceased partner, until the claims
of the separate creditors have been
first satisfied. It is true that joint
creditors may come into equity to
enforce their claim against the es-
tate of a deceased partner, and
equity will then consider the claim
as it is considered at law, both joint
and several ; but this can only be
done where the claims of the joint
creditors do not come in conflict
with those of the separate credi-
tors. In such case, the priority
of the separate creditors is always
preserved. Upon the death? of one
partner, the claim of the joint credi-
tors survives against the surviving
partner, and is extinguished at law
against the estate of th& deceased
partner, to which they can only re-
sort through the aid of a court of
equity, where the advantage thus
thrown by accident upon the sepa-
rate creditors, will be preserved.
And in such case it makes no dif-
ference, that the surviving partner
is insolvent, if the assets to be ad-
ministered are purely legal ; the

420

EQUITABLE ASSETS.

separate creditors having acquired
a priority at law, aud having equal
equity, that priority will be pre-
served. For where the equities
are equal, the legal right must pre-
vail. A different rule obtains
where the assets are purely equit-
able, and where, therefore, both
joint and separate creditors would
have to seek the aid of a court of
equity. In such case, neither party
having a legal preference, and the
surviving partner being insolvent,
the claimants would be decreed to
take pari passu. It may, I think,
be hence laid down, that in ad-
ministering upon the legal assets
of an insolvent partner, his prop-
erty sliould be applied to the pay-
ment of his private debts, and
partnership claims should not be
reported for a pro rata dividend."
It is noticeable that this reasoning
does not warrant the exclusion of
the joint creditors in the adminis-
tration of the assets of a surviving
partner, because the obligation is
then legal and may be enforced
without the aid of a chancellor.
It is also inapplicable where the
form of the contract is joint and
several', or where partnership debts
have been made several as well as
joint by stiitute ; see Morris v.
Morris, 4 Grattan, 293 ; Wilder v.
Ke.eler, 3 Paige, 161.

The separate creditors of a part-
ner have agreeably to this view a
prior claim on his private property
which it is incumbent on the debtor
to regard, and he can do no act
tending to defeat their right in-
consistentlj' with good faith. A
general assignment by a partner
will therefore take effect in the first

instance for the benefit of his
separate creditors ; Murrell v.
Neil, 8 Howard, 414 ; Badgers v.
Meranda, 8 Ohio, N. S. 179 ; Penn-
ington V. Bell, 4 Sneed. 200 ; and
if a clause preferring the joint
debts cannot be stricken out, it will
invalidate the deed ; Jackson v.
Cornell, 1 Sandford, Ch. 348 ; see
Wakeman v. Grover, 4 Paiga, 23 ;
Payne v. Matthews, G Id. 19; 11
Wend. 181. The right of the
separate creditors is nevertheless
an imperfect one, which does not
preclude the conversion of separate
property into joint, or the appro-
priation of it to the payment of
the partnership debts, if there is no
reason to suppose that the assets
of the party are inadequate to meet
his engagements. So a partner-
ship creditor may take the assets
of a solvent partner in execution,
and a court of equity will not en-
join the writ at the instance of the
debtor or of his separate creditors ;
Dunham v. Hanna, 18 Indiana,
210 ; Martin v. Tiffany, 45 Illi-
nois, 302. And it has never been
pretended that a creditor may not
receive payment from a partner
without inquiring whether the
money is drawn from his assets or
from those of the firm. According,
moreover, to the English authorities
which are followed in New York
and Mai'yland, the priority of the
separate creditors is merelj' equit-
able, and will not avail against any
legal advantage that has been ob-
tained in good faith through the
act of the partners or of the firm.
It is not until the estate of an in-
solvent partner passes from his
own keeping into that of an ad-

SILK V. PRIME.

421

ministrator or assignee, that the
equitj'^ of his separate creditors at-
taches or can be effectually admin-
stered; see Thompson v. Frist, 15
Marj'land, 24 ; McCullough v.
Bashiell, 1 Harris & Gill, 96. A
mortgage by an insolvent partner
for a firm etebt, may wrong his
separate creditors, but will not be
set aside ab their instance, unless
the mortgagee was cognizant of the
circumstances which invalidate an
act that is prima facie good ; and
such is clearly the rule where an
advance is made in good faith on
such a security. So a lien acquired
by a judgment or levy for a joint
debt, will not be displaced by a
chancellor in order to leave the
way open for the demand of a sepa-
rate creditor ; McCullough v.
Dashiell, 1 Harris & Gill, 96 ;
Wisham v. Lippincott, 1 Stock-
ton Ch. 353; Kuhn v. Lair, 14
Richardson, 20 ; Toomba v. Hill,
28 Georgia, 3T1 ; Glaghorn v. The
Bank, 9 Id. 319 ; Baker v. Wim-
pel, 19 Id. 87 ; see Allen v. Wells,
22 Pick. 450 ; Gumming's Ap-
peal, 1 Casey, 269. In Glag-
horn V. The Bank,t]ie court treated
the priority of the separate credi-
tors as indubitable where the ques-
tion arises in the administration of
an insolvent estate, but held that
it does not afford a ground for
setting aside an execution which
has been levied on the separate
property by a partnership creditor.
It was held in like manner in
Meech v. Allen, IT New York, 300,
that although the separate credi-
tors are entitleil to priority in
the distribution of equitable assets,
"a court of equity never assumes to

exercise the power of setting aside
or in any way interfering with an
absolute right of priority obtained
at law. In regard to all such
cases, the rule is sequitas sequitur
legem. (1 Story Eq. Jiir. § 558)."
" In Wilder v. Keeler, 3 Paige,
111. Chancellor Walworth, says :
" Equitable rules are adopted by
this court in the administration of
legal assets, except so far as the
law has given an absolute prefer-
ence to one class of creditors over
another." So, in the case of Ave-
rill V. Loucks, 6 Barb. S. C. R.
410. Paige, P. J., says : "Courts
of equity, in the administration of
assets, follow the rules of law in
regard to legal assets, and recog-
nize and enforce all antecedent
liens, claims and charges existing
upon the property, according to
their priorities." This is also
conceded in the case of 3fc Gullough
V. Dashiell, 1 Har. & Gil. 96,'Vvhere
the whole doctrine of the distribu-
tion in equity of the joint and
separate property of partners is
very elaborately examined. Ar-
cher, J., by whom the opinion of
the court was delivered, there
says : " At law, the joint creditors
may pursue both the joint and
separate estate, to the extent of
each, for the satisfaction of their
joint demands, which are at law
considered joint and several, with-
out the possibility of the interpo-
sition of any restraining power
of a court of equity." But espe-
cially must it be beyond the power
of such courts to interfere where
an absolute right of legal priority
is given by force of a positive
statute, as in the case of a judg-

422

EQUITABLE ASSETS.

ment. Chancellor Walworth, in
Mower v. Kip, 6 Paige, 88, says :
" The rule of this court is to give
effect to the lien of a judgment
upon a legal title, so far as it can
be enforced by execution at law."
It is a necessary sequence from
these principles that the lien of a
joint judgment on the real estate
of a partner, will not be set
aside or postponed at the instance
of a creditor who obtains judg-
ment subsequently for a separate
debt ; Meech v. Allen, 17 New
York, 300.

A different view prevails in New
Hampshire, where a levy for a
separate debt on the private es-
tate of a partner, has precedence of
a prior levy for the debt of the firm.
Neither creditor is a purchaser,
and the mere circumstance that
one is first in point of time,
does not preclude the court from
moulding the execution of the
writs in conformity with the re-
quirements of justice ; Jarvia v.
Brooks, 3 Foster, 136 ; Benson v.
£la, 4 Fogg. 110.

It was held accordingly in Jar-
vis V. Brooks, 3 Foster, 136, that
where the landiof a partner is set
off in execution for a debt due
from the partnership, and after-
wards the same land is set off in
execution for a separate debt of
the partner, the separate creditor
of the individual partner will hold
the land. The court said " if the
preference is admitted in favor of
the joint creditor, but denied to
the separate creditor, the principle
of equality and reciprocity upon
which the interference of equity
with the legal rule has been vindi-

cated in England wholly fails.
At law the separate creditor might
take his debtor's moiety in the
partnership estate, and sell it for
his debt. When he comes to as-
sert this legal right equity inter-
poses with tlie rule that partner-
ship debts must first be paid out
of the partnership property, and
in answer to his complaint that
equity has taken from him his
legal right, he may be told in Eng-
land that equity by way of com-
pensation, has given him a corres-
ponding preference in the applica-
tion of his debtor's separate estate.
We have admitted the equitable
rule which takes away the separate
creditor's legal riglit to satisfy his
debt upon an undivided moiety of
the partnersliip property. Princi-
ple, consistency and equal justice
to the separate creditors would
seem to require that we should
also adopt the other branch of the
same equitable doctrine, and as
there is no greater difficult}- in ad-
ministering one branch of the doc-
trine, than the other, both may be
directly asserted at law with equal
convenience."

Agreeably to the rule as admin-
istered in England, property may
be separate, although it belongs to
two or more jointlJ^ If there are
three members of a firm, and two
of -them constitute another firm,
the property of the latter firm is
separate as it regards the credi-
tors of the other firm. In like
manner if one of three or more
partners withdraws, and the others
carry on. the business, it is so far
separate that the creditors of the
original firm, are not entitled to

SILK V. PRIME.

423

a dividend from the property ac-
quired by the new firm, in the event
of bankruptcy. So if one of several
partners disposes of his interest in
the common stock, to the others,
it becomes their separate property,
and will be applied under a com-
mission to the liabilities which they
have incurred in preference to the
obligations for which they are
jointly answerable with the retired
partner, although he sold in con-
sideration of an agreement on their
part to assume lihe debts, ante, 399.
In Frow, Jacobs & Co.'s Estate,
23 P. F. Smith, 45, the Supreme
Court of Pennsylvania declined to
carry the rule to this length.
Frow, Jacobs, Parker and Fores-
man, entered into partnership un-
der the name of Frow, Foresman
& Co. Foresman subsequently
sold his interest to the other part-
ners in consideration inter alia, of
a joint and several covenant on
their part to pay the existing
debts. The remaining partners
continued in business as Frow,
Jacobs & Co. Jacobs subsequently
withdrew from the concern, and
Foresman returned to it, forming
a new partnership, styled Fores-
man & Co. Finally, Fi'ow and
Parker assigned all their property
for the benefit of the creditors of
Prow, Jacobs & Co. The court
held that under the law of Penn-
sylvania forbidding preferences,
the creditors of Frow, Foresman
& Co., were entitled to come in
under the assignment. They were
equally with the creditors of Frow,
Jacobs & Co., the joint creditors
of the assignors, and entitled to

be paid out of their funds. Frow,
Jacobs and Parker had agreed to
pay all the debts of Frow, Fores-
man & Co. ; and it made no differ-
ence as it regarded the liability of
Frow and Parker, that Jacobs was
no longer a member of the firm.
This decision is obviously sound
on general principles, but it would
seem to be contrary to the rule
which regulates the distribution of
assets in bankruptcy.

The claim of the separate credi-
tors to priority is rejected in many
of the States, although on grounds
that are not everywhere the same ;
see Grant v. Camp, 21 Conn. 41 ;
The Bank of Kentucky v. Bizer,
2 Duval, 169; Whitehead v. Chad-
well, lb. 432 ; Bar dwell v. Perry,
19 Yermont, 292; Allen v. Wells,
22 Pick. 450 ; Newman v. Bagley,
16 Id. StO ; Hassell v. Griffin, 2
Jones, ill; Baker v. Wimpee, 19
Georgia, 87 ; White v. Dougherty, 1
Martin & Yeager, 309. It has been
declared in some instances, that
as a partnership creditor trusts the
partners as well as the firm, there
is no justice or color of right in
shutting him out from the separate
property, because a separate credi-
tor who has dealt exclusively on
the individual credit of a partner, is
excluded from the joint fund ; see
Bellv. Newman. In other instances
the statutes which require the debts
of a decedent to be paid ratably,
have been held to preclude the
priority of the separate creditors
if it would otherwise exist ; see
Sparhawk v. Bussell, 10 Metcalf,
306 ; Sperry^s Estate, 1 Ashmead,
147 ; Camp v. Grant, 21 Conn.

424

EQUITABLE ASSETS.

551 ; Freeman v. Stuart^ 41 Mis-
sissippi, 138 ; Dahlgren v. Duncan,
7 Smedes & Marshall, 280. In
others again, a statutory provi-
sion rendering partnership debts
several as well as joint, has been
adjudged to do away with the
only ground on which a chancellor
can prefer the separate creditors,
by giving the joint creditors a
legal claim on the assets of a de-
ceased partner ; Hassell v. Griffin,
2 Jones' Eq. 117.

It is held in Connecticut and
Massachusetts, that the rule in
bankruptcy does not apply in the
administration of the assets of a
deceased partner, whatever the
principle may be where the ques-
tion arises during his life, because
the assets of a decedent are under
the statutes of those States dis-
tributable equally among all his
creditors ; Sparhawk v. Bussel,
10 Metcalf, 305 ; Camp v Grant,
21 Conn. 55.

In Sparhawk v. Russel the court
adjudged that the partnership and
private debts of a deceased debtor
are to be paid ratably, out of
the common fund derived from
the partnership and private prop-
erty, although the surviving part-
ner is also insolvent, and the assets
are not adequate to pay either class
of debts ; Wilby v. Phinney, 15
Mass. 116. Hubbard, J., said, that
" the only preference known to the
law of Massachusetts in the dis-
tribution of the estates of deceased
insolvents, is for taxes and duties
due to the commonwealth, and that
all other debts of whatever kind
are to be paid ratably. Where

one is a partner at the time of his
decease, having both partnership
estate and separate estate, and is
indebted as a partner as well as on
his private account, no difference
is to be made in the course of dis-
tribution by the payment of the
separate debts from the separate
estate, and of the partnership
debts from the joint estate, but
each claim is alike provable with-
out regard to its nature, or the
source of the fund. The distinc-
tions which prevail in this regard in
settling the estates of living insol-
vents, were not recognized in the
administration of assets after
death."

The effect of this interpretation
must be to defeat the equity of
the surviving partners to have the
joint assets applied in the first in-
stance to the payment of the part-
neship debts. Such a result is
-seemingly foreign to the purpose
which the Legislature had in view.
A provision that the assets of a
decedent shall be distributed rata-
bly at his death, only extends to
so much of the property belong-
ing to him as a partner, as he
might have diverted while he was
alive, from what is needed for the
payment of the firm debts. It
cannot, therefore, affect the equity
of the surviving partners, that
these shall be paid before anything
is taken for the separate debts.

In Bell V. Newman, 5 S. & R. 78,
the Supreme Court of Pennsyl-
vania put this construction on a
statute prescribing equality as
the rule in the distribution of the
assets of a decedent, and it was

SILK V. PRIME-

425

held that where a surviving part-
ner dies indebted to partnership
and separate creditors, the part-
nership property must be applied
to the partnership debts ; the
separate creditors will receive the
same proportion out of the separate
property as has been paid to the
joint creditors ; and the residuum
should then be divided ratably
among all the creditors. Ch. J.
Tilghman said, that by the act of
April 19th, 1T84, all creditors of
the same degree were entitled to
an equal share of the intestate's
estate in case of a deficiency of
assets. There was nothing in tiie
nature of a partnership debt to
preclude the right to satisfaction
out of the individual property of
the partners. If the intestate
were still living, a partnership
creditor who obtained judgment
against him might clearly levy the
whole debt on his separate estate.
Did his death make any, and what
difference ? Under the rule in

■ bankruptcy the joint creditors are
to be paid first from the joint
estate, and the surplus goes to the
separate creditors, and vice versa
as to separate creditors and separ-
ate estate. Although this was the
undoubted rule, no one could tell
how it came to be so ; it had been
rejected by Lord Thurlow ; and
Lord Eldon only submitted to it
because it had been established by
his immediate predecessor ; Ex

parte Kensington, 14 Vesey, 448 ;
Barker v. Goodair, 11 Idem, Y86.
In Bolton v. Butler, 1 Bos. & Pul.
547, Ch. J. Eyre called it a rule
of convenience, which had been

adopted in bankruptcy under the
chancellor's power by statute to
take order in the distribution of
the effects of a bankrupt. The
rule was convenient, though the
equity of it was doubtful, but con-
venience alone would not justify
the court in disregarding the statu-
tory provision, that the effects of
deceased persons should be dis-
tributed equally. Tliere was,
nevertheless, an equity between
the members of a firm which the
coui-t was bound to regard, and
which bore on the case under con-
sideration. That equity forbade
the surviving partner to withdraw
anything from the joint assets
until the partnership debts were
paid. It was not defeated by his
death, but bound his executors.
When the joint property ca*ne to
the hands of the executors, chan-
cery would order it to be applied
to the joint debts, not for the sake
of the partnership creditors, but
to exonerate the estate of the de-
ceased partner. In the case before
the court this equity required
that the joint property should be
applied to the joint debts, and the
question was what distribution of
the separate assets would best pro-
mote the equality which the statute
had in view. Assuming that the
joint estate belonged in moie-
ties to Cookson and Waddington,
if the partnership creditors re-
ceived twenty per cent, from the
joint estate, one-half must be re-
garded as coming from Wadding-
ton's estate and half from Cook-
son's. The separate creditors
should consequently receive ten

426

EQUITABLE ASSETS.

per cent, from the separate estate,
after which the joint and separate
creditors would divide the balance
among them equall}'' pro rata."
This conclusion appears to be
altogether just, except that the
whole amount received from the
joint assets, should seemingly have
been deducted before proof was
made against the separate estate.

The argument of Ch. J. Tilgh-
man, in Bell v. Newman, con-
cedes that if the separate creditors
have an equity, it will not be taken
from them by a statute requiring
that the assets of a decedent shall
be distributed ratably among liis
creditors, and such, notwithstand-
ing the language, held in Spar-
hawk v. Husael, ante, 424, would
seem to be the sound interpretation,
because the legislature will not be
supposed to have intended to au-
thorize the disregard of any right
that is binding in conscience, and
which a chancellor would enforce ;
Mallory v. Smith, 24 Alabama, 628.

It is accordingly held in Ken-
tucky, that in distributing the
joint and separate assets of an in-
solvent firm, the separate credi-
tors are entitled to the same per-
centage of the separate assets as
the joint creditors have received
from the joint funds, and the
residue is then to be distributed
ratably among both classes of
creditors ; The Bank of Kentucky
V. Heizer, 2 Duvall, 169.

The case of Bell v. Newman was
cited and relied on in Sperry's
Estate, 1 Ashmead, 347 : but it has
been overruled by the more recent
decisions, which have established

the rule in bankruptcy as that
which will prevail in Pennsj'l-
vania, wherever the estate of a
partner is reduced to a fund by
death or insolvency, and comes
into the hands of an assignee or
administrator; Black'' s Appeal, ^
Wright, 503 ; Walker v. Eyth, 1
Casej', 216; Jf ' Cormick's Appeal,
5 P. r. Smith, 252.

The ground taken in Massachu-
setts and formerly in Pennsyl-
vania, that there is no equitable
reason for denying the joint credi-
tors the benefit of a statute which
prescribes equality as the rule of
distribution, was also maintained
by the Supreme Court of Missis-
sippi, in Dahlgren v. Damon, T
Smedes & Marshall, 393, and
Freeman v. Stuart, 41 Mississippi,
138 ; but these decisions have
shared the fate of Bell v. Newman
in being overruled ; Irby v. Gra-
ham, 46 Mississippi, 425, 431.

In Woodrop v. Brice, 3 Dessaus-
sure, 203, and Snifer v. Sass, 14
Richardson, 20, note, the principle
of reciprocity was said to require
that since the claim of the sepa-
rate creditors on the partnership
efiects is subject to the joint debts,
the partnership creditors must take
the separate effects on the like
terms. But these decisions have
been overruled, and it is now held
in South Carolina, that if a joint
creditor may be compelled to pro-
ceed in the first instance against
the partnership assets, he has yet,
where the firm is insolvent, an in-
contestable right to take the sepa-
rate property in execution ; Oood-
win V. Carson, 9 Richardson Eq.

SILK V. PRIME.

427

259, 261; Wilson v. M'Connell,
lb. 500 ; Kuhn v. Law, 14 Rich-
ardson, 20.

In Morris v. Morris, 4 Grattan,
493, the court was of opinion that
the separate creditors have no
higher or better equity than the
joint creditors. Their alleged pri-
ority depends on the inability of
the joint creditors to proceed at
law against the estate of a deceased
partner. It, therefore, has no
place as it regards equitable assets,
which must be distributed ratably
among all the claimants ; see Wilder
V. Keeler, 3 Paige, 167 ; Arnold v.
Hamer, 1 Freeman Ch. 509 ; ante,
384. ,

For a like reason, where part-
nership debts have been made joint
and several by statute, the ground
for the preference of the separate
creditors ceases, and the assets will
be distributed ratably among the
joint and separate creditors ; Has-
sel V. Griffin, 2 Jones Eq. 111.
Morris v. Morris, 4 Grattan,
493. Lee, J., said that a court
of equitj"^ has no authority to im-
pose terms on the prosecution of a
legal remedy, or to exclude a cred-
itor from one fund because he has
a right of recourse to another.
The joint creditors were by the
force and effect of the statute to
all intents and purposes the indi-
vidual creditors of each member
of the firm."

The broad ground is taken in
some of the States, that tliere is
no legal or equitable principle en-
titling the separate creditors to
priority. A chancellor may mar-
shal the assets by requiring the
joint creditors to proceed in the

first instance against the fund
which is not accessible to the sep-
arate creditors ; Filley v. Phelps,
18 Conn. 294, 391 ; but the re-
straint cannot be carried further
consistently with justice ; Tucker
V. Oxley, 5 Cranch, 35. The point
was determined in Bar dwell v.
Ferry, 19 Vermont, 290, 300, and
the following propositions stated as
giving the true theory of the rela-
tion between those who have given
credit to the individual, and those
who have trusted the firm. " The
result of all the decisions in this
State upon this subject now is: 1.
That, at law, both separate and joint
creditors may attach either separate
or joint property, and sell it upon
execution in satisfaction of their
judgments, without regard to the
equities of their debtors. 2. That in
equity, by the very law of partner-
ship, the partnership effecte are
pledged to each separate partner,
until he is released from all his
partnership obligations; but that
this lien is solely under the con-
trol of the partners ; and it would
follow, doubtless, that if the part-
nership be dissolved, and the ef-
fects assigned to one partner, this
pledge or lien is gone, as was held
in I].r parte Ruffin, 6 Vesey, 119 ;
but that, while the partnership
continues, this equitable lien, ex-
isting for the benefit and security
of the separate partners, may be
reached in a court of equity by
the creditors, as the only mode of
fully carrying into effect the stip-
ulations of the parties at the time
of forming the association. 3.
That a partnership contract im-
poses precisely the same obligation

423

EQUITABLE ASSETS.

upon each separate partner, that a
sole and separate contract does,
and that it is not true, that, in
joint contracts the creditor looks
to the credit of the joint estate,
and the separate creditor to that
of the separate estate ; and that
there is no express or implied
contract resulting from the law of
partnership, that the separate es-
tate shall go to pay separate debts
exclusively ; but that, as the part-
nership creditors in equity, have a
prior lien on the partnership fund,
chancery will compel them to ex-
haust that remedy before resorting
to the separate estate ; but that
beyond this, both sets of creditors
stand precisely equal, both at law
and in equity."

In Tucker v. Oxley, b Cranch,
54, the court held, that a firm debt
might be set off against a suit
brought bj' the assignee in bank-
ruptcy of one of the partners,
which was in effect paying a joint
creditor out of the separate assets ;
and Chief .Justice Marshall said,
in delivering judgment, that if the
other partners were solvent, or the
property of the firm adequate to
meet their liabilities, the partner-
ship creditors ought not to prove
their claims against the estate of
the bankrupt partner ; but that it
was unjust to exclude them out
from his estate, when it did not ap-
pear that they had an adequate
recourse in any other quarter.

It was held, in like manner,
in Allen v. Wells, 22 Pick. 450,
that an attachment of the private
property of a partner for 'a joint
debt, will not be defeated by a
subsequent attachment by a sepa-

rate creditor, or b}' a general as-
signment for the payment of his
debts. Dewey, J., said, that by
the rule of law as formerly held in
England, the sheriff, under an ex-
ecution against one of two copart-
ners, took the partnership effects,
and sold the moiety of the debtor
in the property, as if owned by
tenants in common ; Jacky v. But-
ler, 2 Lord Raymond, 871. The
courts of Massachusetts had
adopted the equitable rule, that
the only attachable interest of a
copartner is the surplus of the
joint estate which may remain
after discharging all the joint de-
majjds. It followed, that a levy
by a joint creditor would prevail
over a levy by an individual credi-
tor of a partner. It had been con-
tended that a separate creditor had
a similar priority as to the sepa-
rate property of his debtor. There
was, however, a manifest distinc-
tion between the cases. The re-
striction on the separate creditors
arose not merely from the nature
of the debt, but from the limited
interest of the debtor, which only
embraced what would remain on
the final adjustment of the partner-
ship accounts. But a debt due by
a copartnership is the debt of every
member of the firm, and each part-
ner is liable for the whole amount.
It followed, that the separate prop-
erty of each might be attached and
held to secure a debt due from the
copartnership.

Agreeably to the law of Massa-
chusetts, the joint and separate
debts are paid pari passu under a
voluntary assignment by a partner
for the benefit of his creditors.

SCOTT V. TYLER. 429

But the rule in bankruptcy pre- and the partnership creditors are

vails xmder the statutes of that not entitled to a dividend until the

State, where the estate of a part- separate creditors have been paid

ner is taken out of his hands in in full. See Allen v. Wells, 22

the course of proceedings in insol- Pick, 450, 456 ; The Fall River

veucy, and vested in an assignee, Go. v. Borden, 10 Gushing, 458.

*SCOTT V. TYLER.i [*144]

EASTER AND TRINITY TEEM, 1787 ; DEC. 20, 1788.

EEPOHTED 2 BRO. C. C. 431 ; 2 DICE. 712.

Conditions in restraint of Marriage. — Public Policy. — ]
Ijegacy to a davghter, ove woiety of ichicli was to be paid to her at
twenty-one, if then unmarried, and the other moiety at twenty-five,
if then unmarried ; but in case she married, before twenti,-one, with
the consent of her mother, to be settled upon her as mentioned in the
wilt. The daughter married under twenty-one, without the consent
of her mother : — Held, that the legacy did not vest in the daughter
upon the marriage, and. that she never came under the description
to which the gift of the legacy was attached.

Richard Xee,^ the putative father of the plaintiff Margaret
Christiaua Scott, by his will devised as follows : — " I will that
my executors, hereinafter named, do, M'ith all convenient speed
after my decease, purchase the sum of 5000Z. South Sea Annu-
ities 1751, in their names, upon trust that they, or the survivors
or survivor of them, do stand possessed thereof, and receive the
dividends from time to time as the same shall grow due, and
thereout pay and apply the sum of 60/. yearly, anu every year, in
and towards the maintenance and education of my grandson,
Richard l>ryer, till he shall arrive at the age of fifteen years ;
and if my said grandson should then choose to go to the univer-
sity, from thenceforth to pay and apply 120^. per annum in and
towards his said maintenance and education at the university ;
but if my said grandson shall not go to the university,! will that,
out of the sum of 5000/. and the dividends and savings arising
thereon then made, a sum not exceeding 400/. be applied in plac-
ing *out my said grandson to any trade, profession, or r«i^ri
employment he may, with the approbation of my execu- ^ J
tors choose. And my will and meaning is, that the surplus divi-

' In this edition, so much of the statements, arguments, and judgmeats, as
relate to the power of an executor to pledge proptrty has been omitted.

2 The statejiient of the case and arguments are taken from 3 Bro. C. C. 431 ■
the judgmeut from 3 Dick. 713.

430 CONDITIONS IN RESTRAINT OF MAKKIAGE.

dende, if any, over and beside such allowances as aforesaid, from
time to time be invested in the like South Sea Annuities, and
that the f«aid capital sum,ivith such surplus dividends, be transferred
to my said grandson at his age of twenty-ove years, if he shall be
living, but if he shall die bejore that age, I give the said annuities
between Mrs. Elizabeth Tyler, who now lives with me, and my
god-daughter, Margaret Christiana Tyler, equally to be divided he-
tvjeen them, share and share alike, but the share of my god-
daughter not to be transferred to her till twenty-one. And it she
shall die before her arrival at that age, I give her share to the
said Elizabeth Tyler, for her own use and benefit ; also, I will
that my executors hereinafter named, do, with all convenient
speed atter my decease, purchase the sum of 10,000^. South Sea
Annuities, 1751, in their names, upon the trusts after mentioned,
that is to say, upon trust that they and the survivor and sur-
vivors of them do stand possessed thereof, and out of the divi-
dends pay or permit the said Elizabeth Tyler to take or receive
yearly, and every year, as the same shall become payable, the
sum of 100?. for the maintenance and education of my said god-
daughter, Margaret Christiana Tyler, until her age of twenty-one
years, which will be on the 18th day of June, 1785, and add the
surplus of such dividends from time to time to the said capital
stock ; and at her said age of twenty-one years, I will that one
moiety of the said capital stock of 10,OOOL and the savings thereof,
be paid ayid transferred to my said god-daughter, in case she shall
be then unmarried ; and that, at her age of twenty-five years, if she
shall he then unmarried, I loill that the other moiety of the said
10,000?. be then transferred to her for her own use and benefit; but
in case my said god-daughter shall marry before her said age of
twenty-one years, with the consent of her said m ther, Mlizabeth Tyler,
I will that one moiety of the said 10,000?., with the savings made,
r*i4(?n ^^ settled on my said god-daughter, for her sepai-ate *use,
'- J anc/ Aer issMf, in such manner as her said mother Elizabeth
Tyler, shall think proper, and the other moiety thereof with the
surplus dividends, disposed of, as she, my said god-daughter, shall
think fit ; but in case my said god-daughter shall depart this life
before her arrival at the age of twenty-five years, unmarried, then,
and in such case, I give the said 10,000?. to her said mother, Eliza-
beth Tyler, for her own use and benefit. I give, devise, and bequeath
to my executors, and to their heirs, all my freehold messuages or
tenements, with the appurtenances, in Denmark-court in the
Strand, being Nos. 2, '6, 4, and 5, in trust, that they and the
survivors of them, and the heirs and assigns of such survivor, do
from time to time receive the rents and prbfits thereof, and lay
out the Same in government securities, to the use of my aforesaid
god-daughter, Margaret Christiana Tyler, till her age of twenty-
one years ; and from and after her attaining that age, I give the
said messuages, and the rents, issues, and profits received by my
said executors in the mean time, to my said god-daughter, her
heirs, executors, administrators, and assigns, for ever; but if my

SCOTT V. TYLER.

431

said god-daughter shall depart this life before she shall attain the
age of twenty-one years, I give and devise the said messuages, or
tenements and premises, to my said grandson, Eichard Dryer, if
living, his heirs and assigns ; but if dead, I give and devise the
same to the said Elizabeth Tyler, her heirs and assigns for ever."
He then gave several other legacies, and appointed as follows: —
"All my freehold estate in Whitechapei, in the county of Middle-
sex, and all bond debts, and other debts, owing to me by any
person or persons whc^iisoever (particularly a sum of 2300^. and
interest, due to me from Maurice Dryer and his wife, on mort-
gage of their estate), and effects as well real as personal, what-
soever and wheresoever, and of what nature or kind soever, I
give and bequeath the same to the aiorcFaid Elizabeth Tyler, her
heirs, executors, adndnistralors and assigns, for ever, for her great
care in looking after me in ray several illnesses, and whom I look
upon as my wife in every respect, which I would have made her,
had it net *heen for a foolish promise I made to my late r*-i4'7'i
wife in her lifetime; and constitute and appoint the afore- '- -'
said Elizabeth Tyler, George Shakespear the Elder, Charles May-
hew, and Irhilip Nind, executors and trustees of this my last will
and testament."

In 1774, James Cockburn left to the plaintiff Margaret Chris-
tiana Tyler a legacy of 100^. and made the defendant Tyler;
executrix, and Richard Kee died in September, 1776, without
revoking his will. The plaintiff Samuel Scott about the latter
end of 1782 paid his addresses to the other plaintiff, Margaret
Christiana, and by her consent made profiosals to the defendant
Elizabeth Tyler relative to a marriage with her daughter, offer-
ing to settle her whole fortune, together with a reasonable part
of his own, upon the marriage, which proposal was rejected by
the defendant ; but on the 17th of May, 1783, he married the
other plaintiff, Margaret Christiana, without her mother's consent.
In 1786, Elizabeth Tyler became a bankrupt.
The original and supplemental bill prayed (amongst other
things) that the right of Margaret Christiana to the 10,000/.
South Sea Stock might be declared, and the same settled on the
marriage.

The defendant Elizabeth Tyler by her answer denied that the
marriage of the plaintiff was by her consent, and insisted, that,
for want of performance of that condition, tbe plaintiff Margaret
Christiana had forfeited her legacy of 10,000/. South Sea
Annuities, which had fallen into the residuary estate of the
testator.

The case was argued on thVee days in Easter and three in
Trinity Term, 1787.

Mr. Mansfield, for the plaintiffs. — First, we say, that Margaret
Christiana Tyler, having married under her age of twenty-one, is
entitled to the legacy of 10,000/. If she married under that age,
a moiety was to be settled on the marriage, the other to be paid

432 CONDITIONS IN RESTRAINT OF MARRIAGE.

as she should direct. She, having married, is therefore become
entitled to it. But it is objected, on the other side, that she is
r*l481 "°* entitled, *because her marriage with the other plain-
L -J titf was not with the consent of her mother, whose con-
sent was made necessary bv the testator's will. The doctrine of
our law is, that wherever there is a personal legacy or a portion
payable out of money only, and not out of land, and a condition
is annexed of not marrying without consent, the clause restrain-
ing marriage is construed to be in terrorejn only, and void; and
it is immaterial whether the condition be precedent or subsequent.
In this point our law follows the civil law, as far as personal
property is concerned. If this were a new case, and to be argued
on principle, it would perhaps be a matter of more difficulty ; but
the law seems to be so fully settled, that it scarcely seems to be
necessary to do niore than mention a few of the leading cases:
Mervey v. Aston, Ca. t. Talb. 212, 1 Atk. 861, and Comyn's Hep.
72tj ; Rfynish v. Martin, 3 Atk. 330 ; Elton v. Elton, 1 Wils. 159.
According to which cases, the plaintiff would be entitled to this
legacy ; and the condition requiring Mrs. Tyler's consent would
be pro tanto void, even if it be taken as a condition precedent.
But, in truth, this is a condition subsequent ; the plaintiff was
entitled absolutely to this legacy although she did not marry.
Marriage is not necessary to give her the legacy: the condition
would therefore operate to divest a gift which would otherwise
have effect. The testator meant her to have the legacy in all
events, at a certain period ; and the clause respecting her mar-
riage with Mrs. Tyler's consent was only meant to accelerate the
payment.

Mr. Scott^ on the same side.- — Independently of the clause con-
taining the condition ot marrying with consent, it may be argued,
that the testator intended the legatee to have the 10,000^. in every
event except one ; namely, that of her dying unmarried under
the age of twenty-tive years, which, by her marriage, is now be-
come impossible. That is the only event in which he has given
the legacy over ; for it is settled that the bequest of a residue is
never considered as having the effect of a bequest over, of a par-
ticular legacy. But, on the authorities, it is clear, that
r*l4qi *this being a personal legacy, the condition, as far as it
■- -' requires the consent of Mrs. Tyler, is in terrorem only,
and therefore void in law ; and that, in fact, the condition, as far
as it is legal, is complied with by tne marriage. The case of
Long V. JJtnnis, 4 Burr. 2U52, shows how averse the Court
always are from conditions in restraint of marriage, by requring
consent even in the case where'the legacy issues out ot land.
However, in the case of personalty, the rule is fully established,
from Hervey v. Aston, t\\&t in this case our Courts follow the rules
of the civil law, and that by that law two strict maxims are laid
down. Ist, That marriage ought to. be free. 2nd, That a testa-

' Afterwards Earl of Eldon.

SCOTT V. TYLER.

433

ment shall not be inofficious. With reference to these two max-
ims, they held a condition requiring consent to marriage to be
void; whereby, 1st, They encouraged matrimony upo!i sound
principles of policy. 2iid, They prevented heirs from being de-
feated of their inheritance, by conditions requiring them to
obtain consent from particular persons, which was a mode
invented to evade the laws respecting inofficious testaments, by
requiring a consent which the testator knew to be impossible to
obtain. On this subject the civil law was very strict, and it was
immaterial whether the condition was precedent or subsequent,
or whether there was any gift over or not ; nor did it signify
what relation the legatee bore to the testator. The condition
was absolutely void : Godolph. Orphans' Leg. b. 1, c. 15. This
shows that the only effect of the condition was, that it made it
necessary for the party to marry, and the other part of the con-
dition, requiring consent, is unlawful and void. Marriage alone,
therefore, is a compliance with the condition. Godolph. b. 3, c.
17. And the subject is more fully considered in Swinburne, b. 4,
c. 12, p. 266. That these rules have been adopted by our law, is
clear trom many cases, particularly Wheeler v. Bingham, 1 Wils.
135 ; Elton v. Elton, 1 Wils. 159 ; Piggot v. Morris, Sel. Ch. Ga.
26 ; and in 2 Eq. Oa. Ab. 214. This last case may seem at first
to be against us, but it was decided on the double times of pay-
ment. Then Uvderwood v. Morris, 2 Atk. 184, adopts the rule :
Semphill v. Bayley, Prec. Ch. *562. Garbut v. Milton, 1 r*-iKO"]
Atk. 381, is a negative authority for us on this point, and '- -'
shows that, if a marriage had been had, the condition would
have been void, as far as it required assent: Bellasis v. Ermine, 1
Ch. Ca. 22. Another head of cases is, where there has been a
provision made on the alternative of not marrying with consent,
and there the Court has not relieved against the condition ; but
this is a distinct ground, and does not apply to this case. Gillet
V. Wray, 1 P. Wnis. 284, is a case of this nature. Hemmings v.
Munkley, 1 Bro. 0. C. 304, does certainly in some measure con-
tradict Underwood v. Morris ; but whether that case be wrong or
right, is at present immaterial, as here is no devise over. [Lord
Chancellor Thurlow. — -The civil law seems to have determined it
to be illegal to give one person a general control over another in
respect to marriage : but I always apprehended this to be re-
strained^ to a general control, and not to the preventing a rash
or precipitate match. Here it is confined to marrying with
consent under twenty-one years of age ; and the question is,
whether there is anything in sound reason to make a restrain to
.this extent illegal. Contining it to years of immaturity is a very
different thing from a general restraint of marriage.] The sec-
ond question in this case is, in respect to the deposit of the bonds
by Mrs. Tyler in the hands of Messrs. Hankey the bankers,
whether they can retain them against the specific legatee for the

' See Stackpole v. Beaumont, 3 Ves.
VOL. II 28

43 1 CONDITIONS IN RESTRAINT OF MARRIAGE.

private debt of the executrix. No assignment was ever made of
them ; it was merely a deposit of part of the testator's property,
and made for a purpose that had no reference whatever to the
purposes of the will. Mead v. Lord Orrery, 3 Atk. 235, lays down
the rule, to be sure, pretty broadly, that executors may assign or
pledge the testator's estate for any purpose whatsoever ; but that
case has been much shaken since, by Bonney v. Bidgard,^ before
the Master of the Eolls, December 3rd, 1784, where his Honor
was of opinion, that the rule was carried too far in Mead v. Lord
Orrery ; for, though it is clear that an executor may dispose of
assets, and anybody purchasing of him is not bound to see to the
r^-i^-,-, application *of the money, yet this shall never protect
L -' anybody who purchases from an executor with a full knowl-
edge that the money was to be misapplied ; and that mortgaging a
leasehold property of the testator did not seem to be the natural
way of dealing with assets, and was in itself a very suspicious
circumstance. Nugent v. Gifford, 1 Atk. 463, is also a strong
case for the defendant, but is inconsistent with that of Bomvy v.
Ridgard. Now, this is a case where the defendants must know
that the purpose for which these bonds were pledged could be no
part of the purposes to which they were applicable by the will,
for it was a deposit made in the course of a private transaction
between them and Mrs. Tyler.

Mr. Graham., on the same side. — It seems a very fair inference,
from the words of the will, that the plaintiff, Mrs. Scott, became
entitled to her legacy at twenty-one, in all events ; though in
some cases not to be paid then, yet it vested. The clause is oddly
worded, and there are several events which are not provided for
expressly, such as her marrying with consent after twenty-one.
It is gi\en over only in one particular event, that of her dying
unmarried under twenty-five ; which seems to imply that her in-
terest was absolute in all other events. But, on the point of the
illegality of these conditions, the cases are positive. Bdlasis v.
Ermine is a case of great authority, for it had the assistance of
the judges. So, Fry v. Porter, 1 Oh. Ca. 138. The distinction is
between a legacy issuing out of land and a mere personalty : for,
as to real property, it must follow the rules of the common law
on the subject of conditions : Reynish v. MaHin^ Hervey v. AstuU.
The Digest lays down those conditions as void, in the most un-
qualified terms possible : Dig. lib. 35, tit. 1 ; Laws, 62, 63, and 64.

Mr. Alexander, on the same side. — 1 contend that Mrs. Scott is
become entitled in respect of her marriage. The rule of this
Court is, that wherever a personal legacy is given to any one,
upon condition of marrying with the consent of a third person,
and no express provision is made in the case of the legatee's mar-
r*15''l ''y^^S without such *conseiit, the part of the condition re-
'- "-' straining the marriage to being with consent, is held to
be in terrorem only, and the legacy vests on the marriage ; and

1 4 J3ro. C C. ICO ; 1 Cox, 145. « 3 Atk. 330.

SCOTT V. TYLER.

435

this is so, whether the condition be precedent or subsequent ;
wliether it be a portion or a legacy ; whether the restraint be
temporary or perpetual ; and notwittistanding there is a general
devise of the residue. But they will object, on the other side,
first, that this rule does not apply where the condition is prece-
dent. The doctrine is adopted from the civil law, and it would
be almost unnecessary to argue that this distinction does not
apply, had not Lord Chief Baron Comyns, in his argument in
Mervey, v. Aston,^ taken great pains to prove that there was a dis-
tinction in the civil law lietween conditions precedent and subse-
quent. I admit the civil law had such a distinction, but it did
not apply to this sort of condition. The rule was, that where
the condition was impossible, against good morals or positive law,
there was no distinction whether it was precedent or subsequent:
the legatee took the legacy, discharged of the condition. The
Lord Chief Baron himself states the rule so, in p. 788. Now
this sort of condition was prohibited by the Lex Julia, and there-
fore falls within the rule. This the Lord Chief Baron admits in
p. 736, but he cites Big. 35, tit. 1, 1. 64, which relates to restraint
of another kind, and omits to cite Dig. 35, tit. 1, 1. 72, si arbi-
tratu Titii Seia nupserit, haeres mens ei fundum dato etiani sine
arbitrio Titii, earn nubentem, legatum accipere respondendum
est ; eam legis sententiani videri, nu quid oranino nuptiis impedi-
mentum inferatur. Then, if it was contrary to law, it is the
same as if it had not been written, and no distinction whether it
was precedent or subsequent. "With respect to the modern prac-
tice of onr Ecclesiastical Courts, we are informed it is consonant
to the rule of the Digest. The cases in our law are principally
Beliasis v. Ermine, 1 Ch. Ca. 22 ; Sewpkill v. Bayly, Free. Ch.
562; Fulling v. Heddy, 1 Wils. 21 ; Meynish v. Martin, 3 Atk.
330 ; which last was a condition precedent. The cases where the
condition is subsequent, prove the same thing. Those where the
resolution* is in favour uf the forfeiture, proceed on dif- r*igQ-]
ferent circumstances. Sutton v. Jeioke, 2 Ch. Eep. 95 ; ^ J
Jarvis v. Duke, 1 Vern. 19, are on the devise over; Straiton v.
Grymes, 2 Vern. 357; Aston v. Aston, 2 Vern. 452, on the same
circumstance; Gillet v. Wray, 1 P. Wms. 284; Creagh v. Wilson,
2 Vern. 572 ; on the alternative provision ; Pigot v. Morris, Sel.
Ch. Ca. 26; Hervey v. Aston, Comyns, 726, was a case of land;
Chauncey v. Graydon, 2 Atk. 616, there was a devise over; liem-
mings v. Munkley, 1 Bro. Ch. Ca. 304, which seems to have been
a hasty determination, but there is a devise over ; from all which
cases taken together, it seems that no distinction has been taken
on this subject between conditions precedent and subsequent.
The next objection that will be made, will be, that though this
rule holds good of a portion, it does not extend to a legacy,
This will be supported by an ai-gument drawn from the civil law.
and which is stated by Lord Chief Baron Comyns iu his argu-

i Com. Rep 726.

436 CONDITIONS IN RESTRAINT OP MARRIAGE.

ment, fol. 735, and a conclusion will be drawn, that it applies
only to portions. But this proceeds only on a mistake of the
Lex Julia, the policy of which was to compel persons to marry,
by all the means that could be devised. It is not, therefore,
probable that such a law should be confined to portions, and in-
deed the words of the law equally comprehend legacies. So, in
Reynish v. Martin, which was the case of a legacy, not of a por-
tion, for the party was entitled to a large provision besides. The
third objection is, that though the rule may obtain where the
restraint is perpetual, it is otherwise where it is temporary, and,
as in this case, to cease at twenty-one or twenty-five years of age.
If the question were to turn upon the policy of the thing, I ad-
mit this might be a very wise distinction, but it appears trdm all
the cases, that there is no ground to argue it on policy. The
objection proceeds on the -supposition that the determination
turns on the illegality of the restraint ; in the civil law, it is
true it is so, but this Court has adopted the rule of civil law in
part only ; and as a rule of construction of the testator's intent,
r*l '\A^ '^^* ^^^ condition should *be in terroreni only ; and the
*- -' question with us is only, whether the condition was
meant in terrorem. Upon this ground it is, that in those cases
where there are devises over, the condition has had its effect;
but if the condition was considered as being in itself illegal, there
being a devise over could make no difference ; but the cases in
our law say, that where there is a devise over, the testator having
made an express provision in the event of the condition not being
complied with, shows sufficiently that he did not mean it in ter-
rorem only ; and this reconciles these cases with the others, which
would be unintelligible if they proceeded on the illegality of the
restraint. The same observations arise upon another class of
cases : those where there is a provision made for the legatee in
the alternative ; if the condition were illegal, it would be equally
so in that case with any other. In the Roman law it was imma-
terial whether there was a devise over or not ; for this reason it
is that in our law the constant language is, that the condition is
in terrorem ; but there is no such language in the Roman law, in
ours not a word of the condition being absolutely illegal and
void, except in the case of Long v. Dennis, where the language
attributed to Lord Mansfield by the reporter is so extraordinary
as to leave room to doubt the accuracy of the report in other re-
spects. From hence we may gather, that though our law has
adopted the Roman law in part, it has not done so on the whole,
and whatever the distinction in that law might be between tem-
porary and perpetual restraints, our law has not followed them ;
no such distinction is to be found in any of the cases. If it be
possiljle for a man to impose such a restraint till twenty-one, he
has not done it here. Where he meant to give the property over,
he has done it. In the bequest to his grandson, he has devised it
over. Consider the policy of construing it so here. The residu-
ary legatee had the custody of the infant ; it was her consent, if

SCOTT V. TYLER.

437

any, that was to be had to the marriage. How easy it would be
to her to encouraa;e a match without being proved to have con-
sented to it; and she would herself be the person *to take r*;i^55-|
advantage of its being without consent, and obtain the ^
forfeiture. If the point, therefore, turned on any ground of
policy, there is strong reason why, in this case, the restraint
should not hold. The last point they will contend is, that the
devise of the residue is equal to a devise over; and this will be
founded on the case of Amos v. Horner, 1 Eq. Ca. Ab. 112 ; but
there is no principle of good sense upon which it should be so.
And the authority of Amos v. Horner has been expressly denied
in Hervey v. Aston, Garret v. Pretty, and Wheeler v. Bingham, 1
Wils. 135.

Mr. Hardinqe, for the defendant Elizabeth Tyler and her as-
signees.— (1.) One of the four alternative contingencies upon
which the daughter's interest is to depend, and that which alone
can found her claim to the limitation of tliis entire sum for her
benefit, is not accomplished. She has not " married before the,
age of twenty-one with her mother's consent." The alternative,
respecting this marriage with consent, is not merely formal, nor
is it by way of substitution for other alternatives, and with an
equal benefit annexed, but substantially different, and with addi-
tional benefit. She is to attain the age of twenty-one, — a mere
contingency of time, — or she is to attain it unmarried ; or sh,e is
to attain the age of twenty-five before marriage; or she is to
marry with her mother's consent under the age of twenty-one.
Upon every one of these alternatives after the first, her state is
improved. In the first event, she is to have certain freehold
houses. In the second, she is to have an immediate 6000Z. In
the third, she is to have an additional 5000^. In the fourth, she
is to have 10,000L before the age of twenty-one ; but 5000^. is to
be settled upon the marriage. The fourth contingency, interpos-
ing its earlier effects, saves the legatee from the restraint of the
other stipulations, and by an act very much in her own power.
The will does not compel her to be unmarried, or to wait for the
age of twenty-five, or even that of twenty-one before her mar-
riage ; for she is only to marry with her mother's consent before
twenty-one, and the 10,000/. is from that instant her own.

*(2.) There is no condition respecting marriage after the r^iK^^-i
age of twenty-five ; and there is no condition requiring ^ -•
consent after the age of twenty-one. The contingency of time is
definite ; but, coupled with a condition essential to its benefit, or
indefinite, except as falling within a certain period, but so as to
admit of being defined by the performance of a condition, — the
marriage with consent. The will may be construed as if the
words had been " when she has attained the age of twenty-five
unmarried, or when she has married before twenty-one, with her
mother's consent."

(3.) There is no direct legacy to the daughter. The gift is to

438 CONDITIONS IN RESTRAINT OF MARRIAGE.

executoi's; and they are to pay at the several periods for her
benefit.

(4.) She has a sure provision if she arrives at the age of
twenty-one, married or unmarried, and married with or without
consent.

(5.) Upon failure of the other events described, there is a
marked and clear limitation over to the mother. But it is argued,
that, upon the failure of this event (i. e of the marriage before
twenty-one, with consent), no limitation over to the mother ap-
pears in the will ; and it is true, that, in terms no such limitation
is to be found. But there is a limitation over of the whole 10,000^.
directly to the mother, in the very next clause to this, upon the
event of the daughter's death before twenty-five unmarried ; and
she, the mother, is residuary legatee.

The assignees of the mother argue thus in their claim to the
lO.OOO;.:— _

1st. The intention of the testator is clear to make the condition
peremptory, and limit over the interest.

2ndly. The condition which he has imposed is unexceptionable
if it stood alone, and is indispensable to any benefit under the
will ; or,

Srdly. At least it would be unexceptionable here, as put by
way of alternative, and enabling a better provision.

4thly. It would avail here as a limitation of time ; or,

5thly. As being followed by a limitation over.
P^^(._, 1st. As to the intention. The will has clearly meant *that
•- J her marriage without consent before twenty-one should
put her in the same condition respecting her fortune as if she
died before she attained the age of twenty-five unmarried.

It has been argued, that a right in the whole 10,000?. vested
in the daughter at the age of twenty-one, which this clause re-
specting the limitation over, if it operates at all, is to divest, and
that a right cannot be divested by implication ; but that argu-
njent overlooks the word "unmarried."

Another of the counsel has more plausibly reasoned, that
inasmuch as the limitation over is expressly upon another event,
it can only operate, in case of that event, as a limitation over ; so
that, in this respect, if the mother has any interest at all, it must
be in her character of residuary legatee ; but that she cannot, in
that character, take this interest; because the testator has im-
plied that she is only to have it in a certain event, which has
failed ; but why cannot she be excluded in one view from this
interest, and admitted in another which is in alio jure, and which,
by a devolution of law upon a partial intestacy falls into the
residuum?

The counsel adds, that if the mother is excluded, the daughter
alone can take this interest. But that is not a correct inference ;
for, if the residue given to the mother must be formed after a
deduction of this interest, the part which is deducted will be a
residue undisposed of.

SCOTT V. TYLER. 439

2nd. The condition is good — even if it were the case of a direct
legacy to the daughter, upon condition of a marriage, with con-
sent of the mother before twenty-one.

It is a good condition by the civil law, and good in this
court, which has not implicitly followed the rule of the
civil law as to legacies, nor with an accurate reference either to
the reason of that rule or to the distinction upon it.

By the civil law, the condition of remaining unmarried is void,
and so is the condition which requires any consent, though it be
that of the parent. This too, with or without a limitation over
superadded. And if the general *rule which dispenses r^iKo-i
with a parent's consent be just, the extent of it thus far '- -'
has very good sense in it.

The reason, however, of the rule, as given in Swinburne, is
perfectly ridiculous. It stands thus : "A restraint upon marriage
in general is void. This rule is peremptory and universal. A
requisition of consent, which the testator knows will never bo
given, would baffle the rule ; every testator may be guilty of this
evasion ; every nominal trustee may be an accomplice in it ; a
testator who is a parent may act in this point against his
own child ; therefore, says the civil law, we must cut the
knot — ' Rescindi debet quod fraudandse legis gratia ascrip-
tum est.' "

But even the civil law, with all its enmity against the con-
dition, lets in the effect of it in another shape ; for if a marriage
with consent is to mark the time at which the legacy will be
due, the Ecclesiastical Courts will not anticipate the event or act
upon it by halves. In the case of Hervey v. Aston, Com. Rep.
785, the words of the Lord Chief Baron Comyns are these — " If a
legacy be given upon a preceding fact, that may or may not be
done, or be to be paid at such a time as may or may not come ; if
the fact be not performed, or if the time should never come, the
legacy would be lost by the civil law : " and in p. 744, " When
the legacy is given to be paid at a certain time, or upon a certain
act which is to be performed, nothing is due till the time incurred,
or the act performed, by the civil law." He cites for this Dig. I.
36, tit. 2, c. 21, 22. In p. 756, he puts the very case of money
given to be paid upon marriage with consent, and holds, that, in
that case, the legacy would be suspended by the civil law.

He seems to consider the marriage and the consent as two
events that are indispensable marks of the time at which the gift
shall begin to speak.

This rule, however, of the civil law, as it respects the mere
condition, is not implicitly adopted here, and the reason of it
never. For here, the condition of a parent's consent is good and
meritorious. Lords Hale and Kelynge, in Fry v. Porter, approve
it in very emphatical terms. *Lord Chief Baron Comyns p^. _q-,
does the same in Hervey v. Aston, Com. Rep. 748. L i-i^y]

The idea of a condition in terrorem, as it is called, is perfectly
ridiculous. What is a terror which is never to intimidate?

440 CONDITIONS IN RESTRAINT OP MARRIAGE.

"Would a man of seuse impose it? Would any but an.idiot act
upon it?

The intention of, the restraint is to guard against an improvi-
dent marriage, and punish it if it shall have taken place. In
this view, which has the soundest policy, the restraint is here
strict! juris to a certain extent ; and though it is difficult, per-
haps, to ascertain the limits with accurate precision, they are
marked enough to bear directly upon the case before us.

According to Lord Chief Baron Comyns, in Htrvey v. Aston, p.
729, "If money be directly given to A., in consideration that the
legatee shall not marry without consent, and there is no devise
over, the condition is ineffectual even here ; " that is, in other
words, if an absolute gift is qualified by that condition imposed
upon it.

But it seems agreed, that if it be a devise of real estate, or of a
sum charged upon real estate, the condition would be effectual,
though without a devise over.

These distinctions are not very becoming ; and they offend one
the more, when the degree in which the rule taken from the civil
law is adopted here, has been justified by a view to the uniform-
ity of the two Courts, though uniformity in the same Court is
thus overlooked. Suppose portions to A. and B., two daughters,
of the same value, and qualified by the same condition, what can
be more irrational or incongruous than to repel the condition as
to one of the daughters, and adopt it as to the other, because the
fund happens to be difi'erent ?

The reason of rejecting the rule where there is a limitation
over is explained by Chief Baron Comyns to be this : he says
the intention is better marked by that circumstance ; and he
contends that if a similar intention can he collected aliunde, it
should have the same eft'eot. Lord Hardwicke, indeed, says, the
intention is considered i;s favouring the devisee over, and as
r*1(i01 '^^^'^"g *'^ right in him ; that it is a condition, therefore,
L -I in that view, taken more as beneficial to him than as pre-
judicial to the legatee restrained.

But if money be given to be paid at twenty-one, or marriage
with consent, both Courts are agreed that it is a good restraint,
and that no money will be due till one or other ot those events
has taken jilace, and a fortiori, if the money be not given to the
legatee, to be paid at those periods, but given to another in trust
for that payment. The distinction is taken in Hervey v. Aston,
Com. Rep. 762; and the point itself decided by an obvious
implication resulting from the actual judgment in that case.

The 2000^. given by that will was personal estate ; but it had
the same condition imposed upon it, which had also fettered a
real devise in the same will, and that condition was, " a marriage
with consent ; " yet, if the condition of requiring assent is void in
a personal gift, the marriage without the consent would have
entitled the legatee.

But the argument of Lord Chief Baron Comyns is more direct.

SCOTT V. TTLEB.

441

Page 751, he construes the will as if expressed thus : " When
she marries with consent, I give her 2000^. more." He first
argues from a general intention, covering both funds, and point-
ing at the time when the gift shall take place ; but if the con-
dition were necessarily bad in a personal gift, the time could not
be so qualified.

He then reasons from its being a personal gift, in augmentation
of the real devise preceding it, and he lays particular stress upon
the want of a gift immediately to the child. He says, that if she
were to die before the first portion could be paid, she would have
neither of the gifts, and he comes, p. 753, to the very point,
asserting the intent of the will to be, that the 2000?. shall be due
to her upon her marriage with consent, and puts it as if so ex-
pressed. He affirms the condition to be lawful, as a condition
precedent, and states, that, in every other personal gift, condi-
tions precedent must be performed, that even the civil law holds
that rule, and that we have *no instance the other way, r»i(^-|-i
either at common law or in this Court. '- ^

He distinguishes conditions pi-ecedent and subsequent with par-
ticular care, so as to refuse what had been too inaccurately called
precedent conditions, and which he considers in the light of sub-
sequent.

The distinction taken by him is between some event preceding
the payment of the legacy (whether coupled with a condition, or
importing a condition itself), and a condition put by way of re-
straint upon a gift actually made complete by the will, before the
restraint is imjiosed.

3rd. But the condition here would be good, as enabling a better
provision by way of alternative.

If a condition of marriage with consent, is by way of proviso
to amplify a gift, there is no case where this condition, remaining
unperformed, the additional benefit can be received. " You shall
either have 201., or, if you marry with consent, you shall have
30?." Shall the legatee marry without consent and have B'^L?
Creagh v. Wilson, 2 Vern. 572, appears to be directly in point.
Stress is laid upon this principle, too, in Hervey v. Aston, Com.
Rep. 750. The testator, in the case before us, gives 10,000?., at
twenty-five, to his daughter unmarried ; but if she marries with
consent before twenty-one, he accelerates the payment, and re-
laxes the condition of unmarried.

No case can be found in which a new and ulterior benefit being
the reason for a conditional gift, it can operate in defiance of the
terms imposed.

4th. If the condition here were in itself absolutely void, either
taken as precedent or subsequent, yet it would be good as a mark
of the time when the legacy should be payable — this, too, even
by the civil law.

In other words, if a personal legacy to a daughter -is made
payable upon an event marked in the time of it, by this condition
upon her marriage, the legacy is not payable till the time so de-

442 CONDITIONS IN RESTRAINT OF MARRIAGE.

scribed and qualified is come. Lord Chief Baron Comyns, in
Hervey v. Aston, is express to this point : Com. Eep. 737, 744, and
756.

Swinhnrne, p. 269, states it as no condition, if put as an
r*1fi9l *^<3verb of time " quwmdiu " or "dum sola fuerit," &c.
'- -I Lord Chief Baron Comyns treats it as a limitation of
tiine, and in that view adduces the civil law as being agreed
with him. This way of considering it parries the inconvenience
of refusing the condition, as annexed to a personal gift, and
adopting it as a gift of real estate. He distinguishes between a
legacy "if," &c., and the same condition preceding the legacy, as
the mark of its time.

5th. The condition here is good, as accompanied with a devise
over.

The whole 10,000Z. is given over to the mother, if the daughter
should die unmarried.

If the testator had said, " unmarried before twenty one," it
would have been more clear ; but, even as it is, it is clear that
the testator meant " unmarried before twenty-one with consent,"
not adverting to any marriage after twenty-one and before
twenty-five.

In every other case of the event failing, upon which the par-
ticular legacy is given, the mother takes by limitation over, nor
can a reason be assigned why it should be omitted here, where
such peculiar anxiety is marked for the effectual performance of
the condition.

The local position of the limitatjon over of the whole 10,000?.
is not immaterial. It comes immediately after the gift of the
10,000Z. upon a marriage with consent before twenty-one.

If this were not the key to it, the absurdity would be extreme ;
for the testator would then say, " If you should marrj' before
twenty-one without consent, and die before twenty-five, having so
married, it is not to be given over, though, in failure of all the
other events, it is."

In Hervey v. Aston, a marriage with consent having preceded
in the same will, subsequent words referring generally to mar-
riage, are bound as referring to a marriage with consent. Thus,
it appears, that in the case before us, the intention is clear from
a conditional gift, the condition too is good in itself, — good as a
limitation of time, — good as annexed to a better provision, — and
good as accompanied with a limitation over.
r*,/.q-i *Mr. Hargreave^ for the assignees of Mr. Tyler. — Two
■- -^ questions occur in this cause: the one as to the bonds
deposited with Messrs. Han key, with respect to which I am not
instructed to interpose; the other, concerning the 10,000?. claimed
by Mr. and Mrs. Scott, which is a question of great importance,
as it involves the general doctrine of the Court as to gifts on con-
dition of marriage being merely in terrorem.

' See Harg. Jur. Arg. vo]. 1, p. 23.

SCOTT V. TYLER. 443

Four times has this Court called in the assistance of the judges
of the Courts of law upon different hranches of this doctrine.
Lord Clarendon, in the case of Bellasis v. Ermine (15 Car. 2),
was assisted by Lord Chief Justice Hyde and Lord Chief Baron
Hale. Lord Keeper Bridgman, in the case of Fry v. Porter (21
Car. 2), had the three chiefs as assessors. A few years after the
Revolution, in Bertie v. Lord Falkland, Lord Soraers called in the
aid of the Chief Justices Holt and Treby ; and early in the last
reign, Hervey v. Aston was heard before the Lord Chancellor, as-
sisted by the Chief Justices Lee and Willes, with Mr. Justice
Comyns. But notwithstanding this, and that new cases occurred
in the latter part of Lord Hardwicke's time, yet, durjng the
time that the Great 8eal was in commission, the case of Mansell
V. Mansell, on a power of jointuring given to a testator for life,
on condition of his marrying with consent, came on, and under-
went great discussion. In the interval between that case and
the present time, two cases only seem to have occurred, Randall
V. Payne (1 Bro. C. C. 55) and Hammings v. Munkley (1 Bro. 0.
C. 304), neither of which appears to have been much debated.

The present case induces a necessity of re-examining the prin-
ciples and authorities of the doctrine in question ; I shall, there-
fore, examine the present case as far as relates to the condition
of marriage with consent, annexed to the legacy given by Mr.
Kee.

Under the will in question, Mr. and Mrs. Scott claim, in Mrs.
Scott's right, the legacy of 10,OOOL South Sea Annuities, and
found their claim thus : — That Mrs. Scott having married under
twenty-one years of age, the material *part of the con- r»i(:>4-|
tingency in Mr. Kee's will respecting the legacy has ^ -'
taken effect, and, therefore, that she is entitled to the Stock, with
the accumulation of interest. Against this the assignees contend
that she is not so entitled, because she has married without the
consent of her mother. The bill states a kind of consent to have
been obtained, but this is totally contradicted by the mother's
answer, and there is not a syllable of proof of such consent, so
that the fact must be taken to be that she has married under
twenty-one, and without the consent of her mother.

The case has been argued on behalf of the plaintiffs in two
ways : — First, that Mrs. Scott's title has accrued within the con-
tingencies under the will. Secondly and principally, that the
condition in the will, as far as it requires marriage with consent
of the mother, is a condition in terrorem only, and, as such, null
and inoperative.

With respect to the first point, it is not much relied upon ; the
true answer to it will be to state the contingencies. The first
contingency is, that upon her attaining her age of twenty-one, a
moiety of the Stock shall be transferred to her, in case she should
be then unmarried ; the event is, that at twenty-one she was, and
still is, married to Mr. Scott: this contingency, therefore, has
not happened. The next contingency is her attaining twenty-

444 CONDITIONS IN RESTRAINT OE MARRIAGE.

five, and being then unmarried, when the remaining moiety is to
be transferred ; but to this there is a double answer, — she has not
yet attained twenty-five, and she is married. The third contin-
gency is, her marrying under twenty-one with the consent of her
mother ; but this contingency neither has happened nor ever can
happen ; for she married under twenty-one without consent,
and has continued married till after her age of twenty-one.
These are the only contingencies in the will, and are so framed
that no one of them is complied with. It has, however, been at-
tempted to raise an argument in favour of Mrs. Scott, from the
devise over to Mrs. Tyler, which gives the 10,000^. to her only in
the event of Mrs. Scott's dying before twenty-five unmarried.
r*iRfn *But this is inconclusive, because the real question is as
■- -I to Mrs. Scott's right, not Mrs. Tyler's ; because it vests
Mrs. Tyler's right on the devise over, which really depends on
the residuary clause, because the title on which each rests de-
pends on the contingencies, and because the implication that Mrs.
Scott ia entitled to whatever Mrs. Tyler is not, is too violent.

I therefore proceed to the second and great ppint in the cause.
The position maintained by the plaintiffs is, that it is the rule of
the Court, in case of legacies of personal property, to consider con-
ditions in restraint of marriage as merely in terrorem, unless,
where, upon the breach of the condition, the legacy is expressly
devised over to a third person. That such a rule should ever
have existed appears wonderful ; and if the authorities were out
of the case, the rule could not be supported.

There is no policy in our law which objects to reasonable re-
straints on marriage, although it will not admit of an absolute
prohibition. On the contrary', it prohibits marriage under twenty-
one, without consent of parents or guardians. A legacy, there-
fore, upon those terms, instead of being against law, coincides
with and enforces it ; the legality of such a legacy has been
recognized in several instances, notwithstanding the condition
has met with much opposition. It was once contended, that, in
a devise of land, on condition of marrying with consent, the
condition was null ; but that point was settled in favour of the
condition, in Fry v. Porter, 1 Ch. Ca. 138 ; 1 Mod. 300; and in
Bertie v. Lord Falklarul, 3 Oh. Ca. 129. So in the case of a por-
tion to be raised out, of land, in Hervey v. Aston, which also settled
that the condition is effectual on a legacy having reference to a
portion to be raised out of land ; all agree that it is so of a legacy
in money with a devise over. In Mansell v. Mansell, the condi-
tion was held efiectual, on a power of jointuring with land, by
the unanimous opinion of the Lords Commissioners. A question
arose before Lord Ilardwicke, whether the condition was effectual
with respect to money to be laid out in land. This was in 174d,
r*lfifil ^'^ ^^'^ ^^^^ oi* Ready v. Colson, a note of which is among
L J Mr. Joddrell's MSS., but the point went oft", the determi-
nation of it being unnecessary.

Is there any latent intent of the testator which the rule seeks

SCOTT V. TYLER. 445

to establish ? The rule seems to imply this : construing it to be
in terrorem seems as if the intention was to deter the legatee;
but what terror can arise from a condition known to be a nullity ?
It is impossible that the testator can mean to impose a void con-
dition. Is there then, any rule of equity which interferes? There
can be only one to have recourse to ; and tbat is, that this Court
will relieve against penalties. It will so ; but then it is part of
the rule to exact compensation ; and where that cannot be given,
the rule does not ajiply ; but in these cases there can be no
measure of compensation but the penalty, so that the rule is com-
pletely inapplicable. Where, then, is the foumiation of the rule
of considering restraints on marriage as only in terrorem to be
traced ? The answer given is, that the Roman law' rejected such
condition''^ as invalid ; that our Ecclesiastical Courts followed the
rule of the Roman law, and that when the Courts of equity
assumed a concurrent jurisdiction over legacies, they held them-
selves bound to adopt the same rules.

With respect to the Roman law, it certainly was unfavourable
to conditions in restraint of marriage; many of its constitutions
tend to promote matrimony, and discourage celibacy; the most
celebrated provisions are those contained in the law commonly
called the Lex Julia, but which is properly the Lex Papia
Poppsea, the Lex Julia being a much earlier law. Among the
provisions in the Lex Papia Poppsea, for encouraging matri-
mony, is one aimed against legacies on condition of celibacy.
It is in the 29th chapter of the Remnants of the Law, as
collected by Ileineecius ■} the words are, " Si quis celibatus
aut viduitatis conditionem h^eredi legatariove injunxerit:
hseres legatariusve ea conditione liberi sunto, neque eo minus
delatam hsereditatem legatumve, ex hac lege, consequuntor ;"
the terms of the law, therefore, only nullify conditions
*wholly forbidding marriage, but do not make invalid all r^if.--,
restraints upon it. The frauds upon the law, indeed, L -1
induced a large interpretation, extending to conditions, on account
of their tendency to celibacy ; as when a legacy was given on con-
dition of marrymg a particular person, who was so inferior as to
make the marriage disreputable, it was deemed equivalent to a
condition of celibacy, and brought within the construction of the
law. So, if a legacy was given with a condition of marriage ex
arbitrio alterius, it was null, under the idea that it was an evasion
of the law, by naming a person who would not consent to any
marriage. But it is impossible to argue from these provisions to
our law, which will endure conditions not to marry without con-
sent, where they do not amount to making marriage impracti-
cable. In arguing upon the law of England, it cannot apply in
argument that the law of Rome was otherwise. The Court cau-

' " Common law" in the report is evidently a mistake.

2 Heineccius in legem Papiam Poppseam, 4to, 1726, p 94. And see an ample
commentary on this chapter of the law in the same book, p. 3i)B.

446 CONDITIONS IN RESTRAINT OF MARRIAGE.

not adapt the Lex Julia, or the Lex Papia Poppsea, where our
law is contrarient. Besides, it is far from clear that the Roruau
law did reject conditions in restraint of marriage to the extent
supposed. In the case taken from that law the restraint is per-
petual, and is given to a stranger, — not, as in the present case, re-
strained to a limited time, and the consent required that of the
parent, a restraint imposed by the law itself. There is no author-
ity to show that such a restraint would have been rejected by the
Roman law. With respect to the Ecclesiastical Courts, it is pro-
bably a mistake that they carried the rule to the extent in which
the Court of Chancery is understood to have received it. What
authority is there to show that there was any such rule?
Since the Courts of equity have assumed a concurrent jurisdic-
tion over legacies, the Ecclesiastical Courts have little cognisance
of them ; and when they are called upon, instead of giving the
rule to the Court of Chancery, they regulate their proceedings by
our equity reports. Swinburne and Godolphin are almost the
only books which have been produced by the ecclesiastic lawyers ;
but Swinburne is wholly occupied by the Roman law upon his
|-^-,rjoi subject; and Grodolpbin, where *he does not follow him,
'- -' takes his materials from the reports of decisions in the
temporal Courts. The only reference by name to a legacy cause,
decided in the spiritual Court, is in Moore's Rep. 857, where
Judge "Winch cites Pigofs case, in which the legacy was held
good, notwithstanding the breach of a condition not to marry
without consent. From this case alone the Courts of equity are
said to have borrowed this rule from the Ecclesiastical Court, and
are said to have adopted it, not from conviction of its rectitude,
but merely for the sake of conformity between the concurrent
jurisdictions, which in general is certainly highly laudable, but has
Its proper bounds. But in the present case there is a seeming
inconsistency, as we are immediately told that the Courts of
equity reject a very material part of the rule adopted by the
Ecclesiastical Court. With them a devise over will be no guard
to the condition ; but it is confessed, that, in the Courts of equity,
it will render the condition inviolable, — a deviation which greatly
detracts from the conformity of the jurisdictions.

The doctrine appears, from this view of it, to rest on erroneous
opinions with respect to the Roman law, and the practice of the
Ecclesiastical Court ; but it has become so entrenched by author-
ities, and supported by great names, especially those of Hale,
Nottingham, and Hardvvicke, that it cannot be wholly denied to
be the law of the Court; it can only now be pressed, that the
Court will not carry it an iota beyond its limits, and resists its
application to such a case as the present. For this purpose I
shall contend, —

1st, That the doctrine is inapplicable where the condition of
marriage is precedent ;

2ndly, That the residuary devise in the present case is a suffi-
cient devise over ;

SCOTT V. TYLER. 447

Srdly, That the doctrine ought to be confined to iraniediate
and direct legacies, and not' to include a trust engrafted upon
them ; under which latter denomination *the legacy in question
must be admitted to be.

*If I succeed in either of these points, it will negative r#]/-Q-|
the claim of the plaintift's to this legacy of the 10,000/. L '-Lo=^J

1st, As to the first of the three points. I acknowledge that
the authorities in support of the in terrorem doctrine are, to a
certain extent, so stiong and so uniform, that they extort sub-
mission : but, in so saying, I look to the distinction between pre-
cedent and subsequent conditions. Where the condition is sub-
sequent the authorities are peremptory. I entertained a doubt
whether it was not the same as to conditions precedent, being
aware that Lord Hardwicke had refused to draw the distinction
between them where restraint of marriage was concerned ; but
upon serious investigation, I found ample room for exempting
conditions p)recedent, both upon the principle on which equity
affords relief, and upon the authorities; and with respect to the
principle on which the Court relieves, it does not extend to con-
ditions precedent. The only principle to which it can be referred,
is that by which the Court relieves against penalties and for-
feitures. The rule with respect to marriage conditions, when
adopted by the Courts of equity, therefore became arranged under
that head, and not being permitted to have any further effect
than to alarm the parties, they obtained the names of conditions
in terrorem. Unfortunately that principle required compensation
to be made, which will not hold as to these conditions ; but this
only shows that the principle has been misapplied, not that the
relief has not been administered under colour of that principle.
If this be allowed to be the principle, let us examine whether, on
that account, conditions precedent are not entitled to be exempted
fron^ the interference. The old distinction between conditions
precedent and conditions subsequent, to which Lord Coke calls
the attention as of the first importance, is this: that where an
estate is given on a condition subsequent, the estate vests till the
condition or contingency takes place, and then it operates by de-
vesting or destroying the estate. It is resorted to in order to en-
force the object of the donor by the terror of a penalty, and as it
opei-ates by the destruction of estates *it is considered as p^-, _^-,
odious, and stricti juris. In a MS. common-place book of L -I
Judge Dudderidge's it is said, " Conditions that go in defeazance
shall be taken strictly, for they are odious." To the same effect
is Co. Litt. 218 a ; Fraunees's case, 8 Co. 90 : title " Condition," in
Fulbeck's Lar. and Shep. Touch. One effect of this disfavour
is, that if the condition is, or by the act of Grod becomes, impos-
sible, the estate as is absolute, if there had been no condition :
Co. Litt. 206 a. So, where the condition subsequent is unlawful :
Fulbeck's Par. part 2, 66 b, citing Perkins, Sect. 139, and 4 Hen.
7, 4, and 2 Hen. 4, 9. Another effect of the odium under which
they lie, is, that they are construed strictly : Fraunces's case, 8

448 CONDITIONS IN RESTRAINT ()¥ MARRIAGE.

Co. 90 b, and 1 Leon. 305. Thus, it appears, that, in respect to
the penal nature of these conditions, the phrase of in terrorem is
peculiarly applicable td them.

The condition precedent is of quite an opposite nature ; there
the estate cannot commence until the condition is performed, or
the contingency has happened. It has, therefore, been observed
upon it that " Adimpleri debet, prius quam sequatur effectus."
A passage in Plowden conveys an idea of the dependent nature
of the estate on such a condition. Judge Brown says, Plowd.
272, "If I grant to you, that if you will do such a thing, you
shall have a lease in su^h particular land of mine ; there the con-
dition precedes the lease, as the 'needle precedes the thread, and
as the needle draws tho thread softer it, does the condition the
lease." The condition, therefore, is beneficial, not penal, and is
favoured and benignautly interpreted, according to the intention
of the words, Co. Litt. 218 a, 219 b. The phrase of in terrorem
is therefore from its nature inapplicable to them ; actual perform-
ance is essential to them, notwithstanding their favourable inter-
pretation : therefore, though the condition be impossible or illegal,
no estate can arise, and it is the same as if none had been given ;
Co. Litt. 20t>, a. and b., 217 b., 218 a. ; Ful. Par. part 2, 67 a.
The result is, that though penal conditions to destroy estates may
P^.„-.-, be *dispensed with, beneficial conditions to raise estates
■- J must always be complied with.

If this doctrine is important at law, it essentially affects the
jurisdiction of .equity. Prom the penal nature of conditions sub-
sequent, they in general fall within that lenient principle by which
Courts of equity relieve against penalties ; but there is no con-
nexion between this and a condition precedent, which operates by
giving an estate and conferring a benefit. Upon such a condition
equity cannot interpose ; equity cannot raise an estate which the
donor has not given. If such power was to be assumed over one
subject, it might soon extend over others, and overleap all bound-
aries. If the principle on which this argument proceeds be just,
is there a reason to be alleged why marriage conditions precedent,
when conformable to law, should not be strictly complied with ?
Nor is the distinction of penalty or no penalty new in this Court :
there are cases where the form alone will make the difference, as
in the case where four or four and a half per cent, interest is re-
served in a mortgage, with a condition of increasing the interest,
in default of punctual payment, to five per cent: the Court will
relieve, because it is in substance and in form a penalty ; but if
the reservation be five per cent., with condition of reducing the
interest to four, on punctual payment, equity cannot interpose,
because, though they are substantially the same, there is not in
this case the torm of a penalty. This is a stronger case than that
between estate and conditions ; because, with respect to the pay-
ment of interests, the difference is only formal ; but the difference
between conditions precedent and subsequent is substantial.

If I have established the doctrine with respect to the difference

SCOTT V. TYLER. 449

between conditions precedent and subsequent, I may proceed to
argue, that the circumstances of the present case furnish less
reason for considering it as a penalty than cases upon marriage
conditions in general. I'his is not the case of a child left with a
portion, wholly dependent on a marriage conditioned to be -^^^ith
consent ; *it is the case of an additional portion ; besides r-x-i^n-i
the present portion, she has four freehold houses, with '- -'
the intermediate rents, together with the money due on the 'New
River bonds, with the accuring interest upon them, the principal
sum of which is 1000/.; she has also a contingent interest on the
death of the grandson. The present is therefore a conditional
addition to a provision unclogged by conditions : and there is not
so much to affect the feelings of the Court, and impress the idea
of penalty, as a person, looking only to this provision might sup-
pose.

I come now to the authorities on the distinction between con-
ditions precedent and subsequent. However nice the discrimina-
tion for which I have argued may be, I cannot expect it will be
recognised, if the current of authorities should be against me.
I shall endeavour to evince, that, however authorities on condi-
tions subsequent are against me, there is an ample stock, with
respect to conditions precedent, of respectable authorities, that
these provisions need not be disappointed.

• The gentlemen on the other side have rested their argument on
the authorities ; they have declined arguing it on principle, and
have referred the Court to cases of great weight, principally
those in the tin.e of Lord Hardwicke. The chief authorities
they liave relied upon are these : — Daley v. Deshouverie, 2 Atk.
261. The declarations of Lord Hardwicke certainly blends con-
ditions precedent and subsequent : but he only saj^s, that the
Court puts the most favourable construction on both, to prevent
forfeiture : and the judgment was given on evidence of a kind of
consent to the marriage ; on whifeh account his Lordship cites
Farmer v. Cornptm, 1 Ch. Rep. 1 ; Wiseman v. Forsier, 2 Ch. Rep.
23, both of which are cases turning on consent: Underwood v.
Morris, 2 Atk. 186 : the report of this case has not a word on
the distinction of the two conditions. I agree, however, that the
condition should be taken as precedent: Pulling y. Heddy,! Wils.
21. It is not clear that the condition in this case was not subse-
quent : Eeynish v. Martin, -3 Atk. b30 ; 1 * Wils. 130. This ..j^. ^.,-,
is an unambiguous decision, that a condition precedent is '- ^
equally in terrorem with a subsequent one; and that the real es-
tates being charged with the legacy will not exempt it from the
rule: Wheeler v. Bingham, 3 Atk. 364 ; 1 Wils. 135 ; and in Mr.
Joddrell"s MS. Reports. In this Lord Hardwicke repeats his
opinion against distinguishing conditions precedent ; but the
case was on a condition subsequent, and Lord Hardwicke treats
it as such. The earliest of these cases is not further back than
Lord Hardwicke's accession to the Great Seal. The cases are
only five in number, and only two of them can be considered as
VOL. II. — 29

450 CONDITIONS IN RESTRAINT OF MARRIAGE.

decisions against the effect of conditions precedent, viz., Under-
wood V. Morris and Reynish v. Martin. Only one of them is
pointed in distinct terms against precedent conditions ; and Lord
Hardwiclje in the other does not name the autViorities on which
he relied ; so that at last they seem to compress themselves into
one fully pointed decision, and the opinion of one single judge of
equity.

I do not mean to question that Lord Hardwicke's opinion on
the subject was gradually and deliberately tormed. Whether he
had made up his mind against exempting conditions precedent
trom the rule, at the time when he determined Eervey v. Aston.,
does not clearl}' appear ; but he certainly was afterwards satisfied
upon the p)oint, which gives great weight to his opinion.

Sir Joseph Jekyll was also clearly of the same opinion, as appears
by his judgment in Hervey v. Aston, as reported by Mr Forrester,
Ca. t. Talb. 212. And some appearance of authority may be
gathered for the same position trom the cases before the Revolu-
tion : but, according to my idea, those cases were decided upon ^s
conditions subsequent.

The first case in favour of conditions precedent is that of Pop-
ham V. Bamjield, 1 Vern. 83, where Lord Nottingham says, " Pre-
cedent conditions must be literally performed, and this Court
will never vest an estate where, by reason of a condition pre-
cedent, it will not vest in law."

In JJerlie Lord Falkland, '6 Ch. Oa. 129 ; Freem. Ch. Rep. 220,
r* 1 74-1 ^'"^ ^ "Vern. a33, all the Court (Lord Soraers, *assisted by
L J the Chief Justices Holt and Treby) held, 1st, that the
condition being precedent, the estate never vested ; 2ndly, that
the case was beyond the relief of equity. The words of the two
Lord Chief Justices, that the condition of marriage was precedent,
are very strong. Lord Chief Justice Treby's words, according to
Vernon, were these: — "The condition, which is precedent, not
having been performed, it is plain that the estate, by the letter of
the will, is gone over to Lord Falkland." Ho afterwards said,
" They run upon a plain mistake in saying that they come to be
relieved against a forfeiture." In another part he says, " It is
not a case in compensation ; it is not capable of an equivalent to
answer the will of the testator." Lord Holt's words, according
to Ch. Ca. 130, were these: — "The estate was given on a con-
dition precedent ; and such is the nature of a condition precedent
in point of law, that no action interposing can be a ground to
relieve upon, if it be not performed ; so that, being a condition
precedent, though the Lord Guilford had died within the three
years, and the condition had become impossible by the act of
God, it could not have helped the lady. It will not be easy in a
Court of equity to shew any precedent of relief in case of con-
ditions precedent, as often happens in cases of conditions subse-
quent." Lord Somers also laid great stress on the condition
being precedent. The case is of great strength — 1st, It is a deci-
sion against a devisee, who was also heir-at-law; 2nd, The con-

SCOTT V. TYLER.

451

dition was a hard one ; 3rd, The lady had shown a willingness to
do all the delicacy of her sex would permit towards the perform-
ing of it ; 4th, It was a legacy of personal estate as well as a de-
vise of land, and no attempt at a distinction was taken between
them ; 5th, The great ground of determination was, its being a
condition precedent, not the devise over ; for it appears by Free-
man's Eeports, that the Lord Chancellor did not hold a devise _
over essential on a condition precedent. Another authority with
me is Creagh v. Wilson, 2 Vern. 572, where Lord Cowper founded
himself on the greater legacies being substantially on a condition
precedent. The case is, therefore, a direct authority, *that |-.jj, y--,
if the condition of niarriage be precedent, it wants not a '- ^
devise over to make it effectual. The next is King v. Withers,
Prec. Oh. 348 ; Gilb. Oh. Rep. 26. The case show^ Lord Har-
court's opinion, that where the condition was precedent, and had
not happened, he did not think the want of a devise over mate-
rial ; and although the devise was of a portion out of land, no
distinction was made in that respect. In G-iilet v. Wray, 1 P.
Wms. :^84, Lord Chancellor Cowper held the condition not to be
in terrorem— 1st, Because the provision was alternative. 2ndly,
Because the condition was precedent. In Clark v. Lucy,B Geo. 1,
Lord Cowper is said (5 Vin. 87, in the side-note) to have ex-
, pressed himself thus: — " When the party cannot be compensated
in damages, it is against conscience to relieve; and in Fry and
Farter's case, the condition could not be compensated in damages,
being a marriage without consent. Precedent conditions must
be literally performed, and a Court of equity will never vest an
estate when, by means of a condition precedent, it will not vest
at law. But as conditions subsequent are to devest an estate,
there it is otherwise, where there can be a compensation made in
damages as above ; but in any other case, even in a case of con-
dition subsequent, it is not so." Holmes v. Lysaght, 2 Bro. P. C.
103, Toml. ed., arose on the additional legacy given on a condi-
tion of marriage with consent ; it is a direct authority for sup-
porting a condition of marriage precedent, without a devise over,
and in the case ot personalty, for the legacy was primarily charge-
able on the personal estate. The next authority is the great case
of Hervey v. Aston, decided in 1737 or 1738, and first beard by
Sir Joseph Jekyll, whose judgment is reported by Mr. Forrester,
Ca. t. Talb. 212. He decided that the condition, which was pre-
cedent, was only in terrorem, both as to the portion out of land
and the money legacy. The case was brought by appeal before
Lord Hardwicke, who called in the assistance of the Lord Chief
Justices Lee and Willes and Mr. Justice Comyns. There is a full
report of the argument in 1 Atk. 361. Lord Chief Barou
Comyns' argument is reported by himself; *Mr. Joddrell's ^^^ „„
MS. contains the completest account of Lord Hardwicke's ■- -i
argument ; and far the best account of the Chief Justice's, is a
MfS. report which I have been favoured with by Mr. Serjeant
Hill, yir Joseph Jekyil's argument is against the effect of con-

452 CONDITIONS IN RESTRAINT OF MARRIAGE.

ditions precedent ; nor will Lord Hardwieke's reversal make for
me, as he decided on the distinction between land and money,
and held the money legacy to be governed by a reference to the
portion. But all his Lordship's assessors were of opinion with
me. Lord Chief Baron Comyns thought the condition effectual
as to the money legac}', and relied on the case of Greagh v. WU-
son; and his short note of the case in the margin makes the
point determined a general one as to money legacies as well as
portions out of land. The Chief Justices concurred in thinking
the precedent condition effectual with respect to the money
legacy, independently of its being mixed with the portion out of
land. In Mansell v. Marisell, the Lords Commissioners held a
precedent condition annexed to a power of jointuring to be effec-
tual, and laid great stress on the general doctriue as to conditions
precedent. An expression of Lord Mansfield, in Ambrose v. Ashbt/,
4 Burr. 1929 ; 1 W. Bl. Eep. 607, upon Hervey v. Aston being
cited, his Lordship said, "That was a condition precedent, and,
therefore, the estate never vested ; and, in Chancery, it is held,
that subsequent conditions of forfeiture, in restraint of marriage,
are only in terroreni, unless there is a devise over." This amounts
to an opinion, that where the condition is precedent, it is effectual
without a devise over. Another authority remains, from what
fell from Lord Loughborough, in Hemmings v. Munkley, 1 Bro. C.
C. 304. The words are few but import an opinion, that the con-
dition, being precedent, was sufficient to make it effectual. I do
not rest much upon it, because in fact there was a devise over
before the Court, and it is not quite certain that the Court meant
to decide independently of that circumstance. These are the au-
thorities which oppose the doctrine of Lord Hardwicke, Sir
Joseph Jekyll, and Lord Chief Baron Parker, and though they
|-^. „„, were few, might justify your *Lordship in overruling this
L -^ determination. The balance is vastly in favour of the
proposition, that where the condition of marriage is precedent, it
is effectual in case of a money legacy without a devise over.
Upon the whole, I cannot but suspect that Lord Hardwicke tell
into a mistake on the subject, by supposing many of the cases to
have been on conditions precedent, which really turned on condi-
tions subsequent. Those cases are many in number. I will only
refer to them in the order of time: Yelverton v. Newport, Tothill,
226, is the oldest case in Chancery on a marriage condition ;
Figofs case, cited by Winch, Moore, 857, as a sentence of the
Ecclesiasl;ical Court : Norwood v. Norwood, 1 Ch. Rep. 12 L ; Vint-
ner v. Fix, 1 Ch. Rep. 121 ; Toth. 227 ; Bellasis v. Ermwe, 1 Ch.
Ca. 22; Ereem. Ch. Hep. 171; t lemivg v.' Walgrave, 1 Ch. Ca.
5« ; Anon., 1 Freem. 302 ; Eightson v. Overton, Ereem. Ch. Rep.
20 ; Hicks V. Fendarvis, Freem. Ch. Rep. 41 ; a case put by Lord
Nottingham, in Jervois v. Duke, 1 Ven. 19 ; Lo?'d' Salisbury's case,
2 Vent. a65 ; 2 Vern. 223 ; Skin. 285 ; Garrett v. Fretty, -A Vern.
298 ; Semphill v. Baily, Prec. Ch. 562. In all these cases, although
at first sight the conditions appear to have been precedent, yet on

SCOTT V. TYLER.' 453

a closer view they were all considered as conditions subsequent.
This will particularly appear by considering the case of Bellasis
V. Ermine, which is considered as the leading case, for requiring
a devise over, on a condition precedent ; yet, according to the au-
thorities as they stood in the time of Lord Hardwicke, and to
the strict language of the bequest, the condition is subsequent,
there being an immediate legacy by the first words, and the con-,
dition following afterwards. This construction was given to a
legacy of the same kind by Sir Joseph Jekyll, Peyton v. Bary, 2
P. Wras. 626. It is true, in Elton v. Elton, 1 Ves. 4 (reported
also in Mr. Joddrell's MS.), Lord Hardwicke would not allow
legacies so expressed to be vested, though the legatee was a grand-
child ; but it is sufficient if the current of old cases considered
them as vested, for if so, I believe it will be found, that the cases
on which Lord Hardwicke formed bis opinion, that the doctrine
of in terrorem *governs conditions precedent as well as r*iYQ-|
subsequent, will be found to be cases of condition subse- ^ .1
quent, and if so, it will leave Sir Joseph Jekyll's opinion alone in
tavour of the plaintiff.

2nd. The second ground upon which I argue, that the present
condition is effectual, is that the general residuary devise over ie
a sufficient devise for that purpose.

I admit that the authorities of Sir Joseph Jekyll and Lord
Hardwicke are against me upon this point. The former, in Paget
V. Haywood, cited 1 Atk. 378, denied to a general devise of the
residue the effect of a devise over. In Hervey v. Aston, Lord
Hardwicke seems to have avoided deciding this point ; but, in
Wheeler v. Bingham, he appears to have been of opinion that it
must be a special bequest, on failure of the event. There are
also some earlier authorities the same way, as Garrett v. Pretty, 2
Vern. 293 ; and Semphill v. Baily, Prec. Cti. 562. Yet there are
very strong authorities on the other side ; the first of these is
Lady Kilmore's ease, cited by Lord Nottingham, in Parker v. Par-
ker, Freem. Gh. Rep. 59, a legacy of 1000(. each to daughters, if
they married with consent of a person named ; and if they mar-
ried without, they were to have only 500/. each, and the residue
was given to the son. The daughters being thirty years of age,
sued in Chancery for their legacies, but the Court would not de-
cree them without security given to refund on marrying without
consent. But this, I confess, is not a clear case, as to its being
residue, and not a devise over, though it should seem the former.
The next, Amos v. Horner, 1 Eq. Ca. Ab. 112, is a complete deci-
sion upon a general residuary bequest. A legacy to a daughter
of 100/., payable on marriage with consent, or at twenty-five ;
and if she married without consent, 50/., and no more, the residue
to the defendant ; the daughter marrying without consent, under
twenty-one, Sir John Trevor held the devise of the surplus of the
estate to be a devise over of the 50/. This case was refused as an
authority, by Sir Joseph Jekyll, because no decree was to be
found in the Register's book; but Lord Chief Justice Willes, in

454 CONDITIONS IN RESTRAINT OF MARRIAGE.

|-^^„„, *Hervey v. Aston, said it appteared by the calendar that a
L -^ decree was made ; and it appears that he was of opinion
that the residuary bequest was a sufficient devise over. Upon
this contrariety of authorities, your Lordship will be justified in
deciding this point according to the reason of. the thing and the
real intention of the testator.

The nature of a residuary bequest is to vest in the legatee all
the property of the testator not otherwise disposed of; therefore
it is that lapsed legacies of personalty fall into the residuum,
which seem once not to have been allowed : Sprigg v. Sprigg, 2
Vern. 394 ; at least, if the legatee was dead at the time of making
the will. But the doctrine is now settled in favour of residuary
legatees: Wright v. Hall, Fortescue, 182. Therefore, in Durour
V. Ilotteuz, 1 Ves. 820, Lord Ilardwicke decided in favour of the
residuary legatee on a legacy void by the Statute of Mortmain.
The residuary bequest, in the present case, is in the fullest and
corapletest terms possible ; it extends both to the real and per-
sonal estate, and gives a particular reason for making her the heeres
factus and universal legatory of his estate, subject to the former
devises in his will. Jf the condition annexed to Mrs. Scott's
legacy had been any other than marriage with consent, there
could not have been a doubt on its failure, of Mrs. Tyler's title,
the intent being sufficiently clear ; and if so, why should any
stronger evidence of intent be required on a condition of marry-
ing with consent, than of living to a particular age, or any other
contingency ? But it may be said, that a special devise over
effectuates a marriage condition, not by being an expression of in-
tention, but by creating an interest in a third person ; and this is
Lord Hardwicke's method of accounting for it in Wheeler v. Bing-
ham, 3 Atk. 367 ; but the residuary legatee is equally interested
with any special devisee over. In both cases, the interest of the
third person is equally at stake ; the only difference is, that the
interest of the one is created by general words, the other by a
special limitation.

r*l 801 ^^^' '^'^^ third point I made was, that this is not the *case
*- -I of a direct legacy, but of a trust. The Court will con-
sider whether, being such, it is at all within the sphere of the
ecclesiastical jurisdiction. If it is not, the foundation on which
the doctrine of in terrorem stands is wanting, and it becomes the
subject of quite a difl'erent rule, under which land, portions out
of land, powers over land, and money legacies, having a reference
to a devise of land, are exempted from tlie doctrine. There was
a case before Lord Hardwicke, of Reddy v. Colson, which I have
referred to before, which went off; but Lord Hardwicke, ex-
pressed a doubt in respect to its being a trust, whether it was
not exempted from the rule.

Upon the whole, Mr. and Mrs. Scott fail in making out their
title to any part of the legacy of 10,000^., Mrs. Scott having mar-
ried under twenty-one, without the consent of her mother, which
was made essential by Mr. Kee's will. The only ground for avoid-

SCOTT V. TYLER.

455

ing the contingency is, that it is a condition in restraint of mar-
riage, and therefore only in terrorem. In answer to this, I have
endeavoured to show that the doctrine is mistaken, or at most,
does not apply to conditions precedent ; that if a devise over is
necessary to defend a condition precedent, as well as a, condition
subsequent, the residuary bequest amounts to such a devise over.

Lastly, I have submitted, whether, a trust is not exempted
from this supposed rule of the ecclesiastical jurisdiction ; I liave
only to add, that the present case is favourable to the validity of
the condition, as it comes from a father to a child ; is exacted
only whilst the legatee is under twenty-one; as the power is
vested in the parent ; that the power has not been abused, and it
is not a case where the child loses her whole provision, there
beina; a considerable portion for her, which is not affected by the
condition.

Mr. Stainsby (as amicus curise) referred the Court to the case in
Dyer, 189 b {Butler v. Lady Bray), which he said was cited in
Mavsell v. Mansell, by Sir John Skynner, then the junior counsel
in the cause, and was thought so *important by the Court, rs-fQi-i
that the cause was ordered to stand over till the next ^ ^
day, in order that Mr. Henley, the Attorney-General, might an-
swer it.

Mr. Plumer, on the same side. — The question in this cause
brings two points under discussion. 1st, The intention of the
testator, independent of the authorities on the subject, lind, The
construction of the will upon the ground of the authorities.

The only question now is, as to Mrs. Scott's claim under the
will. She stands in the light of a particular legatee taking this
legacy out of the general fund ; to do this, she must show the in-
tention of the testator in her favour, either by express words or
by implication. In the present case, it is not claimed as given in
express terms ; and it does not appear by implication that she was
to have it in the event, which has happened, of her being married
under twenty-one without her mother's consent. The legacy is
given to an infant twelve years of age. The testator had a son-
in-law and a grandson ; and he gives to the present plaintiff other
provisions, without any conditions, except attaining twenty-one
years of age, by which she is amply provided for — a real estate of
150^. a year, and a contingent interest in 50001. given by the tes-
tator to Dryer, the grandson, on his dying under age, which is a
very ample provision for a child under the circumstances of the
plaintiff. The testator had not affixed any condition or restriction
as to marriage, to the gift of the 5000^. to his grandson Dryer ;
but, when he was giving this 10,000^. to an infant, in augmenta-
tion of the fortune already provided for her, he might think it
very reasonable to give it her with a restriction respecting mar-
riage ; it might be very detrimental to the daughter herself not
to be restrained in a niiitter of so much importance. The testa-
tor knew how to qualify his gift in the one case, and to leave it
unqualified in another, where he thought it unnecessary. lu re-

466 CONDITIONS IN RESTKAINT OF MARBIAGE.

spect of this child, he makes no disposition till she attains twenty-
one years of age; then, in order to entitle herself to the legacy,
r*i89i ^^^ must do one of two things ; she must either *postpone
1- *'-' her marriage till twenty-five, or, if she marries under
twenty-one, she must do so with her mother's consent. This is a
reasonable restraint, such as the law itself imposed upon her, and
such as man}' celebrated writers think imposed upon her by nature.
The whole devise is in one sentence; one moiety is to be paid to
her at twenty-one, if unmarried, the other at twenty-five, if then
unmarried. If the testator had made no further disposition, it
would be clear that the legacy was not given absolutely, for she
is not to take it unless she is unmarried. But he then says
(going upon the ground of the former prohibition), that, in case
she should marry under twenty-one, it nuist be with the consent
of her mother. The condition he looked forward to was mar-
riage ; the first part of his will contains a prohibition of mar-
riage till twenty-five ; the latter lessens that restraint to twenty-
one, with consent. By marrying under twenty-one, without
consent, she has departed from the lesser restraint, and disquali-
fied herself from the additional bounty to which she had no title
but upon the performance of the condition. The only way the
case can be argued in her favour is, that this restriction was not
a condition, but a recommendation, because the legacy is not
given over ; and although it is given over in case of her dying
unmarried under twenty-five years of age, that it is not so in any
other event ; the construction that it was recommendatory is not
maintained by the will ; it might as well be contended that mar-
riage itself was not necessary, as that it was not to be with con-
sent. The principal intent as to marriage was to postpone it till
twenty-five ; your Lordship, will not, therefore, admit that con-
jecture into the construction of the will. The assertion, that
it is not ffiven over on marriage without consent, is a mere
fallacy, founded on a supposition that whatever is not given
away is given to the plaintift', who is only a particular legatee;
for, in truth, whatever is not given away goes to the residuary
legatee. But they argue, that being given to her in one event it
is not so in any other ; which is a mistake, as Mrs. Tyler does
r*l8^1 ^'^^ claim as a ^particular legatee, but as general legatee ;
•- -I therefore, if anything is not disposed of from her, it is
given to her. It is by no means incompatible that it should be
given to Mrs. Tyler in case of the plaintiff dying umarried, and
also in case she should marry without consent ; but to give it to
Mrs. Scott, if she marries without consent, is inconsistent with
giving it to her on condition of marrying with consent, and
would destroy a principal object of the testator's intention. Mrs.
Scott is therefore not entitled to take on the ground of the testa-
tor's intention.

When I call this condition a restraint, I am probably wrong,
for I may as well call it a condition in encouragement of mar-
riage ; if the condition had stopped in its first part, it would have

SOOTT v. TYLER. 457

been a restraint, for the plaintiff in that case could not have
married until twenty-five ; then permitting her to marry under
that age is an encouragement to marriage; but to say because it
is a condition in encouragement of mai-riage, it shall be construed
as an absolute gift immediately upon marriage, is not arguing
justly. The condition annexed Jbas nothing in it to engage a wish
to set it aside. The intention of the testator is legal ; imposes
nothing but what the law itself imposes; it ought therefore to
prevail ; and if it does, the plaintiff does not make out the propo-
sition, that there is, in the event that has happened, an intent,
either expressed or Implied, that she shall take the additional
legacy of 10,000/. given in the will.

Secondly. Suppose the intent to be clear, that, in the events
■which have happened, the plaintiff is not entitled to take the
legacy, the authorities ought to be very strong to induce the
Court to contradict that intent.

All the authorities upon the subject are bottomed on the civil
law.

In cases not within the ecclesiastical jurisdiction, the civil law
has not been adopted as the rule, as in the cases of settlements of
land, or of money to be raised out of land; in these the condition
has been held good ; from *whence it follows that the con- [-#104^-1
dition in its own nature is just and legal, otherwise it '- -'
must fail universally. Neither is the rule adopted in the case of
pecuniary legacies, where there is a limitation over, or in the ease
where there is an alternative provision where it only notifies the
testator's intention. It follows, therefore, that where the inten-
tion is clear to the contrary, the rule does not apply. Another
proposition also arises from the cases; the only ones which apply
are those of money legacies upon conditions precedent. If the
doctrine laid down by Lord Chief Baron Corayns and the Chief
Justices in their argument in Hervey v. Aston is right, those even
do not apply if the intention appear to the contrary, although
there is neither a remainder over, nor an alternative provision ;
this is expressly laid down by Chief Buron Comyns.

In adopting the rule of the civil law, your Lordship will in-
quire what that rule is ; and if it appears that it is not a deduc-
tion from principles, but merely a part of the Lex Scripta, the
Lex Papia-poppaea. This rule makes the condition unlawful, and
counteracts two principles adopted by our law : it makes the con-
dition unlawful which by our law is legal, and it gives the legacy ;
whereas our law annuls the legacy given on an unlawful condi-
tion. Will this Court adopt a part of the Lex Scripta of Rome,
made under the particular circumstances of the times, against
the clear principles of our own law ? it was a part of this law,
that a man who had but one child should take but half of a
legacy. Will the Court adopt a part of the law and reject the
other? "Where is the propriety of making a positive law of
Rome, a rule of construction of a will here ? How can it consti-
tute a rule for discovering a testator's intention ? Perhaps, how-

458 CONDITIONS IN RESTRAINT OF MARRIAGE.

ever, after the determinations which have passed, it would be
presumptuous to say the Court should not at all refer to it. But
if the Court feels itself obliged to consider it as a subsisting rule
as to those cases which tall within it, I trust your Lordship will
not extend it farther than it has hitherto prevailed ; if the case
r*l8'^n before you could not, from its nature, *be of ecclesiastical
L -I cognisance, or enter under that jurisdiction, the rule does
not apply.

The present case is not a bill for the payment of a legacy; it is
a bill filed for carrying into execution a trust ; the legal fund is
vested in the trustees-, the Ecclesiastical Court cannot compel the
execution of the trust, it can only give the legacy to the nominal
trustee. The trust, then, is the subject of the appropriate juris-
diction of this Court ; the bill is to compel the mother to dictate
the words of the settlement, as to a moiety of the legacy, which
the Ecclesiastical Court could not do : it the}-- had attempted it,
this Court would have restrained them by injunction. This ap-
pears from Avon.., 1 Atk. 4^1, where it is laid down by Lord
Hardwicke, that notwithstanding the original jurisdiction of the
Ecclesiastical Court in legacies, yet, if there be a trust, this Court
will grant an injunction, trusts being only proper for the cognisance
of this Court.

The Court, therefore, in a matter of trust, is not bound by the
rule of the civil law. This is the first case on the subject of a
trust fund. In the case of land, or portions charged upon land,
the rule has been held not to apply ; so aiso it has been held in
personal legacies under certain circumstances. Will your Lord-
ship then conform to the general rule of this Court, agreeable to
the law of England ; or adopt the rule of the civil law made
under partial circumstances, when the question is which of these
rules shall be applied to a new set of cases upon which there is
hitherto no determination ? But even admitting that the rule of
the civil law is to prevail, the rule of that law would in this case
not be to avoid, but to give effect to the restraint. The case here
is that of a parent. The case in the Roman Ihw is the consent of
a stranger; so it was also iti the case of Uyiderwood v. Morris,
and in Heynish v. Martin. The civil law required the consent of
the parents in all, marriages: Dig. L '12,, tit. 2, 1. 2, — nuptise con-
sistere non possunt nisi consentiant oranes ; id est, qui coeunt
quorumque in potestate sunt. And it appears by Dig. 1. 22, tit.
r*18fi1 ^' ^" ^^' ^'^^^ ^^^ father might ^delegate this authority to
'- -I the mother ; and if she unjustly withdrew her consent,
the praetor might compel her to give it: Dig. 1. 23, tit. 2, 1. 19.
The restraint imposed here is therefore only of the same kind
with that which the civil law recognised. It is limited to tweuty-
one, which is acknowledged by 8winburne, 153, to be good ;
" Albeit all these conditions are generally disliked ; where they
are part restrained, as that the daughter shall not marry under
twenty, the condition is not void." The case there put is stronger
than the present : there the restraint is absolute, — here only to

SCOTTV. TYLER. , 459

restrain without consent. The civil law would therefore give
effect to, not control the present restraint. The cases do not mili-
tate with this doctrine; many of them turn upon the special
manner in which they are penned ; several of them are upon con-
ditions subsequent. In Underwood v. Morris, and Reynish v. Mar-
tin, the restraint is unlimited, and given to strangers ; the former
of them is directly contradicted by He.mmings v. Munkley ; and
there is tio one of the cases which, if all the facts are taken into
consideration, contradicts the doctrine now laid down.

Mr. Stratford, on the same side. — This case has been argued on
the part of the plaintiff, on the ground of two principles, both
drawn from the civil, and, as it is alleged, adopted by our law : —

1st, That all conditions in restraint of marriage are void.

2nd, That conditions annexed to legacies of marrying with
consent are, where the legacies are not specitically given over, to
be held in terrorem only, and not necessary to be performed.

With respect to the first of these principles, it is not to be
maintained, taking it in a general, universal, and unqualified
sense, but only when it is taken sub modo ; and therefore in the
same book in which it is said, "that all conditions against the
liberty of marriage are unlawful," it is also added, " Wt if the
conditions are only such as vvhereby a marriage is not absolutely
prohibited, but only *in part restrained, as in respect of r^ioiri
time, place, or person, then such conditions are not utterly '- -'
to be rejected." Godol. Orph. Leg. 45, c. 15, s. 1. The reason of
which seems to be, because none of these conditions impose
celibacy upon the party altogether and at all events ; for, though
the marriage may not be had at this particular time or place, or
with this particular person, yet it may at some other, &c.

The question, therefore, in all these cases must be, whether the
restraint imposed be reasonable or not.

In the present case, if the restraint be unreasonable, it must be
so either as applied to the person to whom the power of restrain-
ing is given, or to the length of time for which such power is
given. As to the person, the power is given to the mother of the
legatee; and as to the time it can in no event continue longer
than till the legatee attains the age of twenty-five years.

It were needless to state particularly the power which the
Roman law gave to the parent over the child in cases of marriage.
Many passages have been cited from the civil lawyers, and many
more might be, to show that no marriage could stand without
the previous consent of the parent (where there was one), and the
child was not emancipated. Among others, it is said in the
Digest — In tantum (speaking of marriage), jussus parentis prsece-
dere debet. But it is said that this authority resided in the father
only, and not in the mother, and that it was part of the patria
potestas. In answer to this it is to be observed, that the civil
law, as it appears to be adopted in oar ecclesiastical law respect-
ing marriages, gives an equal power of consenting to the mother
as to the father. Thus it is expressly decided by the Canons of

460 CONDITIONS IN RESTRAINT OF MARRIAGE.

1603, that no children under the age of twenty-one complete,
should contract themselves or marry without the consent of their
parents (in the plural number), or guardians and governors, if
their parents be deceased. These are the words of the Hundredth
Canon, and by the Act of the 26th of Geo. 2, c. 33, it is expressly
r*1881 ^'^i^'^'^sd, that the consent of the mother shall be as *iieces-
^ -' sary as that of the father was, if the father be dead and
there be no guardian. >

The length of time during which the restraint may in this in-
dividual case last, does not much exceed the time given to parents
by the Ae.t of the 26th of Geo. 2, c. 33, universally. And though
the testator has in this case by his will mentioned a time, viz.,
the age of twenty-five, to the extent of which the marriage of
the legatee might by possibility have been restrained, yet he has
by the same will held out inducements to an earlier marriage,
provided it be a marriage with consent ; and he has not impeded
any marriage whatever after the age of twenty-five years.

There is no case to be found in which it has been said what
should be a reasonable restraint in regard to the time it is to
continue; but from what is said iu Aston v. Aston, 2 Vern. 452, it
should seem, that, though no time be limited, the restraint is not
reasonable — that is, so as to avoid the condition.

If the legacy in this case had been given to the legatee at the
age of twenty-five years, if she was then sole and unmarried , it
would at least have been questionable whether by such a bequest
a certain character and description of person was not imposed
upon the legatee, which it would be necessary for her to sustain
at that age, and without which she could not be entitled ; and
yet in such a case marriage would be as much impeded as in the
present. In this view of the case another ground of argument
arises on the part of the defendant. In the common case of a
legacy of pei'sonal estate, given to a person of twenty-one, it was
expressly said by the Court, in pronouncing judgment in Dawson
v. Killett, 1 Bro. C. C. 123, it makes such a description of the
person, that, it' the person does -not sustain the character at the
time, the legacy will fail. I do not cite this case as being in point
to the present (though that was a case upon a personal legacy,
whether vested or not), but merely for the passage alluded to in
the judgment which was pronounced on consideration.
1*1 8Q1 *If it be true, then, that the words of the bequest do in
'- -' this case describe the qualification and character of a
person under which the legatee is to take, a condition arises
which, according to what is said by Lord Oowper in the case of
Creagh v. Wilson, 2 Veru. 572, is in the nature of a condition
precedent, and nmst be performed before the legatee can be en-
titled. To what is said by Lord Cowper in the case of Creagh v.
'Wilson, may be added what is said by the Lords Commissioners
Willes and Wilmot, in the case of Mansell v. Mansell^ (24th

' Wilm. 36.

SCOTT V. TYLER.

461

February, 1757), which case seems much in point with the present
one, as to the principle at least upon which the question now to
be stated was determined. The case was this : —

Sir Edward Vaughan Mansell being seised in fee of lands, &c ,
by his will devised as follows : —

" I give and devise ail my estates, lands, tenements, and heredi-
taments to my wife Mar^' Mansell for ever, and will that she
shall be directed and governed by John Vaughan, Esq., and
Morgan Davis, gent., and their heirs, in the management of her
concerns, whom I appoint and institute trustees of this my will,
to act for her and my children's interest as hereinafter mentioned ;
and after my wife's decease, I give and devise all mj lands, &c.,
to my son Edward Mansell for the term of his nntural life ; and I
will that he shall be capable, with the consent of the said trustees, to
settle a jointure on the woman they agree to in writing he should
ma.rry ; and from and after his decease to his first and other
sons," &c.

There was also in the will the like limitation to Eawleigh
Mansell, the testator's second son, with remainder to his first and
other sons, &c , and the same power of jointuring.

The testator died in 1720, leaving his eldest son Edward thirty
years of age and married : and the trustees were sixty years old
and upwards.

In the year 1740, the lady of Sir Edward Vaughan Mansell, the
devisee for life, being dead, and the trustees *also being rsiQA-i
both dead, Davis being the survivor, and leaving a son '- -I
and heir-at-law, Edward Mansell, then Sir Edward Mansell, and
who was at that time a widower, married Lady Mansell (the
plaintiff in the cause), and by deed settled the whole estate devised
to him by his father's will upon her, by way of jointure, without
any consent obtained of the heir of the surviving trustee.

Sir Edward Mausell, the plaintiff's husband, died afterwards
without issue; and upon his death the defendant in the cause,
who was the eldest son of Eawleigh Mansell was the remainder-
man in tail of the estates in question, but the piaintiff entered
upon the estates under her jointure ; and the bill was brought by
her for confirmation of her jointure, and for delivery of some
deeds. And one of the questions made, and much agitated in the
cause, was, whether the want of consent of the heir of the surviv-
ing trustee to the marriage and jointure was matter of circum-
stance only, and the Court should aid the execution of the powers
as being defective or not.

Lord Commissioner Willes said, " I observed the counsel oti
both sides have considered this consent as a condition. By the
defendant's counsel it has been argued as a condition precedent :
by the plaintiti's as a condition subsequent. I think, if it is to be
taken as a condition, it must be a precedent one ; and, not being
performed, no estate could arise. The trustees were not only to
consent to the marriage, but to the quantum of the estate ; and,
therefore, there are two conditions, and both precedent."

462 CONDITIONS IN RESTRAINT OP MARRIAGE.

Lord Commissioner Wilmot. — "Such an act as attends this
power, must be in the nature of a condition precedent. I have
no idea of a condition annexed to a power heing subsequent : the
condition must be performed before the power can take effect.
All powers arise out of the original freehold ; and the person who
takes under a power takes from the original grantor in the
power ; but such taker must bring himself within the description
to enable him to take. And it is plain, without cases, that
r*iQil *when a person claims by designatio personse, he must
'- J verify the description."

Mr. Mansfield ptJts this as the case of a vested legacy. If it
had been given to the legatee ; without the intervention of trus-
tees, he might, perhaps, have argued, that it did come within the
cases of legacies vested, though to be paid in future. But here,
nothing is given immediately to the legatee, but to the trustees ;
and they are directed " to pay and transfer," as it seems to me,
to one of two persons, at a certain time, and on certain events,
viz., when the legatee shall attain the age of twenty-five years, to
her, if unmarried, or if married with consent ; but if not married
with consent, to her mother.

With respect to the second of the principles mentioned, viz.,
that conditions annexed to legacies of marrying with consent,
where the legacies are not specifically devised over, are to be held
in terrorem, and not necessary to be performed, 1 consider the
circumstance of there being, or not being, a devise over, as a
ground of presumption only of the intent of the testator, and not
a necessary and invariable rule of itself. And this will appear to
be so, by considering the rule, as far as it may be called one, and
the principles on which it has been adopted. The rule is laid
down in the case of iStratton v. Grymes, 2 Vern. 857, where it is
said, that a devisee over being named, he must be looked upon as
a person whom the testator considered and had in his thoughts,
as to what provision he was to have by his will ; but where there
is no devise over, the condition shall be held in terrorem only ;
because, as it is said by Sir Joseph Jekyll in the case of Hervey v.
Aston, though a daughter marries without her father's consent,
yet it is not to be supposed that his severity, if living, would
carry him so far as to leave her quite destitute.

As to the rule itself, as laid down in Stratton v. Grymes, Lord
Harcourt, in observing upon it in the case of King v. Withers,
I'rce. Oh. 350, says it is too wide. And as to the reason given by
r*ic)21 ^''' Joseph Jekyll, if it be the true *one, it does not apply
■- -'to the present case ; for, in this case, the daughter is not
only not left destitute, but is provided for otherwise; and where that
is the case, the rule has been held not to apply : Gillet v. Wray, 1
P. Wms. 284. Upon authority, therefore, as well as principle, if
the legatee be otherwise provided for, though there be no de-
vise over, the legatee must fulfil the condition or forfeit the
legacy.

But it is said, that there must not only be a devise, but a

SCOTT V. TYLER. 463

specific devise over, in order to disappoint the legatee, and that a
devise of a residue will not do. It is possible that the precise
meaning of the word specific^ as applied to a devise over, is not
siifficientljr attended to ; but it should seem, that where the devise
over, though of a residue only, be to a particular person, that, in
such a case, the word specific applies at least as much to the person
to take as to the thing given; indeed, otherwise the rule, as laid
down and reasoned upon in Stratton v. Grymes, is hard to be
understood.

lu this case the residue is expressly given to Mrs. Tyler nomi-
natim, accompanied with strong words of regard. It might have
been difi'erent had Mrs. Tyler been appointed executrix, and the
residue had fallen to her as such. But here Mrs. Tyler seems to
be the j)erson whom the testator considered, and had it in his
thoughts to provide for s'pecifically next after his daughter, and in
case his daughter should not comply witli the terms of marrying
with the consent of her mother, if she thought proper to marry
at all before she was twenty-five years of age, or continuing un-
married till that time.

Mr. Mansfield, in reply. — I shall endeavour to take notice
of the several heads of argument under which the gentlemen
of the other side have arranged the questions in the cause.
The question is that made on the will, whether this gift
to the plaintiflt' Mrs. Scott is, or is not, a simple gift of the
money in one of two events, or whether she was, at all events, to
have the money in case she married. The first gift in the will
is that to Dryer, of 5000^., payable when he should attain
the age of twenty-one ; *if he should die under that age, it r*|Qq-|
was to be divided between the defendant Elizabeth and '- ^
the plaintiff Margaret Christiana, and if the latter died under
twenty-one, it was to go wholly to the defendant Elizabeth.
Then comes the bequest upon which the question arises : he
directs his executors to purchase 10,000?. South Sea Annuities,
and gives a direct order that the interest (except the IQQl. a year
maintenance) should accumulate until the plaintiflF should attain
her age of twenty-one years, then the accumulation was to stop,
and half of the stock, and all the savings, were to be paid to her,
and at twenty-five the other moiety was to be paid. Then comes
the provision lor her marrying under twenty-one, and the gift of
tlie stock over to the mother, in case she should die under twenty-
five, unmarried. He then proceeds to give her the houses at
twenty-one, and if she dies under that age he gives them to
Dryer, and then to the Eiver Lee Bonds, which he gives to the
plaintifi' at twenty-one, and if she dies under that age he gives
them to the mother, the detendant Elizabeth. He afterwards
gives several legacies, and gives the residue to the defendant
Elizabeth Tyler. It is a mere blunder by which the legacy is
made to vest at twenty-five ; he understands and means that she
shall have it at twenty-one, if married ; but if married before
twenty-one, with consent, he meant to accelerate it, and that she

464 CONDITIONS IN RESTRAINT OF MARRIAGE.

should not, in tliat case, wait till she attained twenty-one. The
provisions as to twenty-one and twenty-live, are a restraint of
the precedent gift of the moiety and savings at twenty-one, at
which age he gives her everything else — the houses, the River
Lee Bonds, and the contingency in Dryer's legacy of 5000?.

If this be the fair construction, there is no pretence to say the
legacy is forfeited by the marriage. The gentlemen on the other
side have fancied them different provisions at different times ; but
this is wrong, for by their construction, if the plaintiff' married at
seventeen, and died under twenty-one, even leaving children, she
would transmit nothing to them. There is no arguing against
the words of the will. The 10,000?. is the only thing given
r*iQ4-"l '*^^ ^ portion: out of that alone her maintenance is to
L ^ arise, out of the other funds she is to derive nothing 'till
twenty-one ; this is the reason, that, iu disposing of them, no
reference is made to her marriage. They have studiously
avoided taking any notice of the remainder over, which is simply
in the event of her dying unmarried. This is a ground for de-
ciding against them : the only shift they have been able to find,
is to construe it " so unmarried" which will be to contend, that
dying married without consent, is dying " unmarried." The
clause of dying unmarried is at twenty-five. It will be a new
construction, that this signifies the same thing as unmarried under
twenty-one: it shows that they are sensible of the efB.cacy of that
clause. All the argument fron^ the bequest over, is therefore in
full force. He could not mean what he has expressed ; for, as
half was to vest at twenty-one, the whole could not go over if she
died between that age and twenty-five. He could not mean her
situation to be worse if she married between twenty-one and
twenty-five, than she was at her arrival at that age; but it is
contended, she is only to take in the events pointed out. But the
restraint being confined to twenty one, he could not mean her
provisions should be less upon marrying without consent, between
twenty-one and twenty-five, than if she married without consent
under twenty-one. The mistake is obvious : it arises from the
insertion of twenty-five, instead of twenty-one. If twenty-one
had been inserted, it would have been clear she was to have her
whole fortune upon marriage after twenty-one, or upon marriage
before twenty-one with consent.

In the present case there are no negative words : it is, in that
respect, not like Beynish v. Martin ; there the gift was upon
marriage with consent, and not otherwise ; but here there are no
words, nor a title to show an intent to deprive her of the legacy.
On the fair construction, therefore, of the will, accoi'ding to the
true intent of the testator, if she M'as married she was to have the
whole at twenty-one, and the provision in restraint of marriage is
as such in terrorem only.

r*l951 *^^^ however, the testator has expressed himself so im-
L -I perfectly, that she is obliged to get rid of the objections

SCOTT V. TYLER. 465

■which have been raised to the legacy, we must consider what has
been said on the several points.

1st, I have always understood the point to be established, that
there is no distinction between conditions precedent and con-
ditions subsequent, except with respects to lands, or where there
was a devise over; and that in all other cases a condition in re-
straint of marriage was void. It is not very pleasant to find that
this is a m'ere distinction of authority, not of reasoning; and that
children are not, in all reasonable eases, bound by the authority
of parents and guardians. In reasoning, subsequent conditions
ought just to prevail as much as precedent ones ; but the doctrine
is established, and it is too late to correct it, at least with respect
to subsequent conditions. But it is said, on the other side, that
though this be the case with subsequent, it is not so with pre-
cedent conditions. And with a reference to some of the cases,
the intention of the testator has been talked of; and Mr. Piumer
has argued, that wherever the intent of the testator appears, that
shall be the rule ; but in the same breath he says, a subsequent
condition shall not prevail, although there can be no doubt but a
subsequent condition speaks the intention of the testator as
strongly as a precedent one can do. It is contended, however,
that the authorities are dift'erent as to precedent conditions ; but
the authorities put precedent conditions out of the way as much
as subsequent ones. The doctrine is adopted from the civil law.
They contend the civil law has been misunderstood, and that we
are now to give it a new construction. But if there is any error
in the manner in which the civil law has been construed, the time
for correcting that error is past ; the doctrine is now established
too stronglj' to be moved ; it has become the law of the Court,
and the question only can arise, how it has been understood and
adopted. It is of no avail to understand it better than those who
adopted and established the rule have done. But, in fact, the
civil law does not admit the *distinction between prece- r*iq/>-i
dent and subsequent conditions. What is the difference '- ^
taken on the other side between these conditions ? That precedent
conditions are favoured and must prevail ? that subsequent ones
must be rigorously construed as to their validity, and may be
dispensed with where compensation can be made. At law there
is no distinction between conditions precedent or subsequent, if
the subsequent condition is broken, if a legacy be give to A. if
he marry with consent of B., there is no distinction whether in
point of form it be a condition precedent or subsequent; and
equity has nothing to do with the condition. There can be no
compensation, and therefore there is no distinction between them,
as applied to this subject. If it is so applied, it is arbitrarily to
create a law for the purpose. But it is admitted on the other
side, that a subsequent condition is void. There is no argument
for a subsequent condition being void, that will not equally apply
to a precedent condition being void also. A great many cases
have been cited, as to the distinction, which I shall not go
VOL. II. — 30

466 CONDITIONS IN RESTRAINT OF MARRIAGE.

through : Creagh v. Wilson and Amos v. Horner were clear cases
of alternative provisions, and in each of them there was a re-
mainder over. There is not one of the cases where a precedent
condition prevailed. Hervey v. Aston is that which has been the
most relied upon, as favouring what has been contended for on the
other side. It is not easy, from Lord Chief Baron Oomyn's
argument, to determine what his opinion was ; but I think it
may he gathered, that he thought both the precedent and the subse-
quent condition void. But what was the decision and the ground
of it, in that case ? That it was the case of land, and therefore
the gift could not take place till the condition was completed. I
never yet knew any other conclusion drawn from that case, but
that it was so distinguished from the case of personal property.
But how came Sir. Joseph Jekyll to decide in that very case that
the condition was void? How came. Lord Hardwicke or Lord
Somers, to doubt whether such a legacy was to take place, when
the condition was not complied with ? They must have uuder-

[*197]

stood *that a condition in restraint of marriage was, in
general, void ; but doubted, when it was to arise out of
land, whether the distinction was to prevail, or was to yield to
the ecclesiastical rules. These are the principal authorities re-
ferred to by the other side ; for I shall not dwell on the opinions
of commentators on the civil law, which is a lamentable way of
collecting what the law is.

On the other side we have very express authorities ; from
Godolph. Orph. Leg. c. 15, p. 45, it appears that such a condition,
though precedent, is void ; and thus is confirmed by the passage
from the Digest, cited there. In the case of Reynish v. Martin,
Underwood v. Morris, and Elton v. Elton, the point is treated as
perfectly settled, that there is no such distinction. In Amos v.
Horner, the decision proceeded on the remainder over ; not on the
condition being precedent. I may add Gillelt v. Wray, where the
condition was held good ; but that was on account of the alternate
provision. Bellasis v. Ermine was clearly a condition precedent;
and the Court was of opinion that it was only in terrorem. In
Holmes v. Lysaght, 'A Bro. P. C. 261, Toml. edit., the counsel in
their reason expressly state, that in a legacy of personalty there
is no distinction between conditions precedent and subsequent.
Underwood v. Morris is said to be impeached by Hemmings v.
Munkley, but the point determined in the latter did not apply to
that case. Lord Hardwicke's authority on this subject has every
circumstance possible to give it weight ; Reynish v. Martin was
late in his time, and was determined upon great consideration.
He had the strongest aversion to inconsiderate marriages ; and
after again and again considering the subject, he decided that
point in that case as an established rule in this Court. If the
cases are such as I have stated them, it is now too late to discuss
any thing but what the cases are.

2nd. It has been endeavoured, on the other side, to bring in
the devise over; and they have argued, that, being given to the

SCOTT V. TYLBR.

467

plaintiff in three events, that in all others the legacy goes to Mrs.
Tyler. A devise over *exista only where there is a gift r*29g-]
to one, if Ue marry or do any other act ; with a gift, if he
does not, to another person. A residuary bequest does not
amount to a devise over. There is no devise over here, but what
there is in every case where there is not an intestacy. The case of
Stratton v. Orymes, 2 Vern. 357, shows that a devise over is only
a gift to A., in one event, in another to B., where B. has as good
a claim in the latter event as A. has in the former. As to a re-
siduary legacy being a devise over, it cannot be in such a case as
this, where it is given over only in one certain event, that of the
daughter dying unmarried under twenty-five. And the legacy
being expressly given over to Mrs. Tyler in that event, it is
absurd to say it is given over to her in another event, and in a
different character. A general residuary legatee has never been
considered as a devise over of a particular legacy.

They then contended, that here is an alternative provision.
But the testator has said no such thina:. The other gifts are
without any reference to this legacy of 10,000^.; if the plaintiff
had died under twenty-one, she would, according to their argu-
ment, have had nothing, for none of the other gifts vested before
that time. There is not the least ground to say that here is an
alternative within the meaning of Gillet v. Wray, where one
thing is given in one event and another in another event.

Another ground of argument has been that the restraint is
only till twenty-one, though there is a passage in Swinburne,
M'here a restraint to twenty is said to be good ; it is only given as
his opinion ; and although the point might have occurred in two
or three of the cases — as Amos v. Horner, and Greagh v. Wilson,
where the restraints were only temporary, — yet it was not in-
sisted upon in those cases: and although the restraint in Under
wood V. Morris was only till twenty-one, yet the condition was
held void, and not a hint g.ven that the circumstance of its being
coniined in point of.time would make any difference.

*Another circumstance introduced to vary this case r*-|QQ-)
was that here the restraint was given to a parent. In '- ^
the civil law, the mother could not be considered as a parent. Is
there any possible distinction to be taken between a parent and
a guardian ? The law makes no such distinction, and reason and
common sense agree in this with the law. In Harvey v. Aston
the consent tirst required was that of the mother ; but no distinc-
tion was made on that ground.

The olijection that this is a trust is also perfectly new. If
there is any ground for this distinction, another case must be
added to the exceptions upon this subject, that a condition in re-
straint of marriage annex d to a legacy given in trust for the
legatee, will be good, though if the legacy be given immediately
to the legatee, it will be void. And this is a distinction expected
to be adopted in a Court which says, that trust estates follow the
nature of legal estates. Although the Ecclesiastical Court has

468 CONDITIONS IN EBSTRAINT OP MAKRIAGE.

not in general a jurisdiction over trusts, it is by no means clear
that tbat court may not compel the executor to pay the legacy to
the partj' actually entitled ; and where the executor is himself the
trustee, that Court may undoubtedly compel him to pay it, as he
in that ease only is what he is in all cases — a trustee for the lega-
tee. Upon the true construction of this will, I therefore con-
tend Mrs. Tyler was not to have this legacy if Mrs. Scott
married.

The cause stood over till this day,' when it came on for judg-
ment.

Lord Chancellor Thurlow. — This is a bill filed by Samuel
Scott and Margaret Christiana his wife, against Elizabeth Tyler,
the residuary legatee and executrix of Richard Kee, George
Shakespeare, Charles Mahew, and Philip Nind, executors and
trustees named in the will of the same Richard Kee, and Richard
Dryer, his heir-at-law.

The bill prays that the plaintiff Margaret Christiana's right
may be established in a trust fund of 10,000^. South Sea Annu-
ities, and that proper accounts may be directed accordingly.
r*2nm *For this purpose the bill states the will of Richard
'- ^ Kee, made on the 16th day of December, 1776, whereby
he directs his executors to purchase 5000^. South Sea Annuities,
of the year 1751, in their own names, but in trust to pay 60?. per
annum lor the maintenance of Richard Dryer till his age of fif-
teen, a!id from thenceforward 120/. per annum, with liberty to
raise 400/. to put him out in some trade or profession, the surplus
profits to be invested in the like Annuities, and the whole to be
transferred to him at twenty -one ; but if he dies in the meantime,
the whole is to be thereupon divided between the defendant
Elizabeth Tyler and the plaintiff Margaret Christiana, the share
of Margaret Christiana not to be transferred to her till her age of
twenty-one, and if she dies sooner her share is to go over to
Elizabeth.

He also directs his executors to purchase the sum of 10,000/. in
the like Annuities, in their own names, in trust to pay Elizabeth
Tyler 100/. per annum for the maintenance of Margaret Christiana
till her age of twenty-one, the surplus to lie laid out in the mean-
time in the like Annuities : at her age of twenty-one, if then
unmarried, one moiety is to be transferred to Margaret Chris-
tiana, for her own use and benefit ; and at her age of twenty-
five, if then unmarried, the remainder to be transferred in like
manner.

If she marries with the consent of Elizabeth, before twenty-one,
a moiety of the whole sum is to be settled to her separate use, and
for her issue, according to the discretion of Elizabeth ; the other
moiety to be disposed of as Margaret Christiana shall think fit ; if
she dies unmarried, before her age of twenty-five, the whole is to
go over to Elizabeth.

' SOth December, 1788.

SCOTT V. TYLER. 469

He also gives to the same trustees certain freeholds in Denmark:
court, in trust to lay up the rents till Margaret Christiana shall
attain twenty-one, whereupon he gives both the estates and their
produce to her absolutely ; or if she dies sooner, to Richard Dryer,
or if he be then dead, to Elizabeth Tyler.

He gives divers other legacies. All the rest of his *es- r^.^Qi-i
tate, real and personul, he gives to Elizabeth Tyler, abso- L " J
lutely, whom he looks upon as a wife.

He died on the 3rd of November, 1776, leaving Elizabeth sur-
viving, and Margaret Christiana his natural daughter by her.

On the 17th of May, 1783, the plaintiff Samuel Scott clandes-
tinely and against the will of Elizabeth, married Margaret
Christiana, then an infant of eighteen years. Elizabeth ob-
jected to it as an improvident match, by reason of his inferior
circumstances, his advanced age, and the family which he had
by one of his former wives, and warned her daughter of the
consequence.

And, as the plaintiff Samuel Scott states, by a deed of 13th of
May, 1783, he has covenanted to settle Margaret Christiana's
fortune on her and her children, after his own death, if she or
they should survive him.

The bill further states the will of James Cockburn, who died
in October, 1774, leaving Elizabeth Tyler his executrix, and
Margaret Christiana a legatee of 100^.

All the executors proved Richard Kee's will ; Elizabeth Tyler
alone acted.

Elizabeth Tyler forthwith transferred 5000?. South Sea Annu-
ities into the names of the trustees, which have been since trans-
ferred to Dryer, together with the accumulations, and that legacy
has been duly discharged.

In August, 1777, she transferred 10,000?. South Sea Annuities
into the names of herself and co-trustees, together with the
further sum of 1000?. of like Animities, whereof she has con-
stantly received the produce; she received, in like manner, the
rents of the freehold houses and the interest of the securities on
the River Lee.

She admits the legacy of 100?. to remain due, and that she
had assets, but claims a debt of 900?. against the plaintiff Samuel
Scott.

In March, 1786, Elizabeth Tyler became a bankrupt ; a com-
mission issued, and Sir Edward Vernon, Thomas Hankey, John
Marr, and Malcolm Cockburn, were chosen assignees.

Upon this matter questions arise, whether, as the case
*stand8, the plaintiffs have any and what interest in the r^jn^-jQ-,
10,000?. South Sea Annuities. L ^^^J

The testator makes four several bequests to his daughter: a
contingent interest in the 5000?. South Sea Annuities originally
given to Dryer, the 10,000?. South Sea Annuities in question, the
freehold tenements, and the Lee Bonds, a.l upon the event of her
living till the age of twenty-one, marr.ed or unmarried. If sbe

470 CONDITIONS IN RESTRAINT OF MARRIAGE.

dies before twenty-one, the first, third, and fourth bequests take
no place, and yet the interest of the fourth is to be paid to her
separate use, notwithstanding her coverture during her infancy ;
but there is an event upon which the second bequest may take
place before twenty -one, namely, if she marries before that age with
the consent of her mother.

It is impossible not to suspect that the testator has failed of ex-
pressing bis full intention concerning this bequest of the 10,000^.
He gave it to tiie daughter on a double contingency, — her age, and
being then unmarried ; he seems to have meant it for the mother on
the contrary event ; but he has given it over also to heron a double
contingency, — the death of the daughter before her age, and un-
married. This leaves a middle case, — the premature raarria2:e of
the daughter, — in which neither can claim under the form of this
bequest. Again, he has provided for the anticipation of the
daughter's title, by another double contingency; namely, mama^e
before twenty-one, and without consent of the mother ; but, in case of
a marriage between twenty-one and twenty-five, with or without
consent, half the legacy would remain undisposed of; which it
can hardly be imagined he meant.

Some endeavours were used to infer, from the terms in which
it was given to the mother, that, in all other events, it was meant
for tlie daughter ; it is more probable, that in the case of the
daughter's not becoming entitled, it was meant for the mother ;
but neither conjecture is sufficiently collected from the actual
expression, by any admissible rules of interpretation.

The main argument for the plaintift' turned on this proposition,
r*9n^i that one branch of the contingency upon which *the
•- -' legacy was given (or rather anticipated), implied a condi-
tion in restraint of marriage, which is merely void, and conse-
quently the legacy became absolute.

In support of this position, innumerable decisions of this Court
were quoted ; but the cases are so short, and the dicta so general,
as to afford me no distinct view of the principle upon which the
rule is laid down, or consequently, of the extent of the rule, or of
the nature of the exceptions to which its own principle makes it
liable.

The earlier cases refc r in general terms to the canon law, as the
rule by which all legacies are to be governed. By that law un-
doubtedly all conditions which fell within the scope of this objec-
tion,— the restraint of marriage, — are reputed void, and, as they
speak, pro non adjectis. But those cases go no way towards
ascertaining the nature and extent of the objection.

Towards the latter end of the last and beginning of the present
century, the matter is more loosely handled. The canon law is
not referred to (professedly at least) as affording a distinct and
positive rule for annulling the obnoxious conditions ; on the con-
trary, they are treated as partaking of the force allowed them by
the law ot England. But in respect of their importing a restraint of
marriage, they are treated at tlie same time as unfavorable, and con-

SCOTT V. TYLEK.

471

trary to the common weal and good order of society. It is reasoned
that parental duty and aftection are violated when a child is
stripped of its just expectations; that such an intention is im-
probably imputed to a parent, particularly in 'those instances
where there was no misalliance, as in marriage with the houses of
Bellasis,' Bertie,^ Cecil, and Semphili,' which the parent, had he
been alive, would probably have approved. These ideas apply
indifferently to bequests of lands and of money, and were, in fact,
so applied in one very remarkable case ; nay, to avoid the sup-
posed force of these obnoxious conditions, strained constructions
were made upon doubtful signs of consent, and every mode of
artificial reasoning was adopted to relax their rigour. This was
thought more practicable by calling them conditions *sub- r^nnn
sequent, although, if that had made such diiference, they '- -*
were, and indeed, must have been generally, conditions precedent,
as being the terms on which the legacy was made to vest. At
length it became a common phrase, that such conditions were
only in terrorera. I do not find it was ever seriously supposed to
have been the testator's intention to hold out the terror of that
which he never meant should happen ; but the Court disposed
of such conditions so as to make them amount to no more.

On the other hand, some provisions against improvident
matches, especially during infancy, or to a certain age, could
not be thought an unreasonable precaution for parents to enter-
tain. The custom of London has been found reasonable, which
forfeits the portion on the marriage of an infant orphan without
consent.^ The Court of Chancery is in the constant habit of re-
straining and punishing such marriages; and the legislature^ has
at length adopted the same idea, as far as it was thought general
regulation could in sound policy go.

In this situation the matter was found about the middle of the
present century, when doubts occurred which divided the senti-
ments of the first men of the age. The difficulty seems to have
consisted principally in reconciling the cases, or rather the argu-
ments, on which they proceeded. The better opinion, or, at least,
that which prevailed, was, that devises of land, with which the
canon law never had any concern, should follow the rule of the
common law ; and that legacies of money, being of that sort,
should follow the rule of the canon law.

Lands devised, charges upon it, powers to be exercised over it,
money legacies referring to such charges, money to be laid out in
lands (though I do not find this yet resolved), follow the rule of
the common law, and such trusts are to be executed by analogy
to it.

Mere money legacies follow the rule of the canon law ; and

1 Bellasis v. Ermine, 1 Ch. Ca. 23.

2 Bertie v. Lord Falkland, 3 Cli Ca. 139.

3 Sempliill V. Bayly, Prec. Cii. 563.
■• Foflen V. Hewlett, 1 Vern. Zai.

5 3(j Geo. 3, c. as.

472 CONDITIONS IN RESTRAINT OF MARRIAGE.

all trusts of that nature are to be executed with analogy to
that.

But Ptill, if I am not mistaken, the question remains
r*9nf^i ^uiirfisolved, What is the nature and extent of that
'- -' rule, as applied to conditions in restraint of marriage ?

The canon law prevails in this country only so far as it hath
been actually received, with such amplifications and limitations
as time and occasion have introduced, and subject at all times to
the municipal law. It is founded on the civil law ; consequently,
the tenets of that law also may serve to illustrate the received
rules of the canon lavsr.

By the civil law, the provision of a child was considered as a
debt of nature, of which the laws of civil society also exacted the
payment, insomuch that a will was regarded as inofficious, which
did not in some sort satisfy it.

By the positive institutions of that law, it was also provided, si
quis cselibatus, vel viduitatis conditionern hseredi, legatariove
injunxerit ; bferes, legatariusve e conditione liberi sunto; neque
eo minus delatam hsereditatem, legatumve, ex hac lege, conse-
quantur.^

In amplification of this law, it seems to have been well settled
in all times, that if, instead of creating a condition absolutely en-
joining celibacy, or widowhood, the same be referred to the
advice or discretion of another; particularly an interested person,
it is deemed a fraud on the law, and treated accordingly ; that is,
tlie condition so imposed is holden for void.

Upon the same principle, in further amplification of the law,
all distinction is abolished between precedent and subsequent
conditions ; for it would be an easy evasion of such a law, if a
slight turn of the phrase were allowed to put it aside. It has
rather, tVierefore, been construed, tliat the condition is performed
by the marriage, which is the oidy lawful part of the condition,
or by asking the consent ; for that also is a lawful condition ; and,
for the rest, the condition not being lawful, id holden pro uou
adjects.

On the other hand, the ancient rule of the civillaw has suffered
much limitation in descending to us.

The case of widowhood is altogether excepted by the
r*20fi1 *-^o^6's j^ ^"*i injunctions to keep that state are made
'- -■ lawful conditions.

So is every condition which does not, directly or indirectly, im-
port an absolute injunction to celibacy.

Therefore an injunction to ask the consent,* as I have said

' Heinn^cius ad legem Papiiim Poppseam, 1770, p. 294.' And see the Com-
mentary, p. 298.

2 Novell 32, 0. 44.

" Sutton V. Jewke, 2 Ch. Rep 9 ; Creagh v. Wilson, 2 Vern. 573 ; Ashton v.
Ashton, Prec. Ch 22(i ; Chauncey v. Gray don, 2 Atk. 0.0; Hemmings v.
Muukley, 1 Bro C. C. 304 ; Dashwood v. Bulkeley, 10 Ves. 230.

SCOTT V. TYIBE,

473

before, is a lawful condition, as not restraining marriage
generally.

A condition not to marry a widow is no unlawful injunction,
for the reason given before.

So, is an annuity to a widow during her widowhood.^

A condition to marry, or not to marry, Titius or Msevia. is
good, for this reason, that it implies no general restraint ; besides,
in the first case it seems to have a bounty to Titius or Msevia in
view.^

In like manner, the injunction which prescribes the due cere-
monies, and the place of marriage, is a lawful condition, and
is not understood as operating the general prohibition of
marriage.

Still more is a condition good, which only limits the time to
twenty-one,^ or any other reasonable age, provided this be not
evasively used as a covered purpose to restrain marriage generally.
And this must obtain still more ftircibly where the lex loci implies
the same restraint.

Nay, according to Godolphin, the use of a thing may be given
during celibacy ; for the purpose of intermediate maintenance wiil
not be interpreted maliciously, to a charge of restraining
marriage.*

It seems also agreed on all hands, that when, on any condition,
however restrictive of marriage, the legacy is given over to pious
uses, the intention of the party shall be deemed to regard those
uses, and not to have the objectionable purpose of restraining
marriage.^

As we receive the canon law, a bequest over, to any purpose,
or person, shall be interpreted in the same manner, and make a
conditional limitation.

It was made a question, formerly, what a legatee should take
on her marriage, under a bequest of 200^. if she married, or lOOLif
she did not. Some thought *300?., some 200^., some iOO?. In r^goYl
our books we find it determined formerly, in the ease of a '- -^
greater legacy given upon marriage with consent, or after a cer-
tain age, and a less in the other events, that the greater legacy
was not forfeited by marrying against the condition f but those
decisions happened in the period alluded to before, when the
worth of the alliance was thought a sufiicient reason for a favour-
able interpretation, as it was called, of the condition ; but Lord
Cowper determined otherwise, on alternative bequests.^

It is true that the foregoing limitations, which are detailed in

' Jordan v. Holkam, Amb. 209 ; Barton v. Barton, 2 Vern, 308.

2 Jervoise v. Duke, 1 Vern. 19 ; Eandal v. Payne, 1 Bro. C. C. 55.

^ Stackpole v. Beaumont, 3 Ves. 89.

* See Webb v. Grace, 2 Ph. 701, reversing <S. O. 15 Sim. 384 ; Morley v. Ren-
noldson, 3 Hare, 570, 580.

5 Swinb. Part 4, sects. 12, 14.

" Hicks V. Pendarvis, Fieem. Ch. Rep. 41 ; 2 Eq. Oa. Ab. 213 ; Bellasis v.
Ermine, 1 Ch. Oa. 23.

1 Creagh v. V\ ilson, 3 "Vern. 573 ; Gille v. Wray, 1 P. Wms. 384.

474 CONDITIONS IN RESTRAINT OF MARRIAGE.

Swinburne and Godolphin, are not found in our reports so ex-
pressly stated ; but the cases did not call for such particularity,
except those few alluded to before, which turned upon the looser
doctrine of favourable interpretation, and that, which is not to be
supported, of Underwood v. Morris^ and which was determined
l)y Mr. Justice Parker, sitting for the Lord Chancellor. It does
not appear by any report that I have seen to be closely considered ;
it is contrary to the canon and civil law, and apparently unrea-
sonable, the restraint having been imposed only till twenty-one,
and the marriage contracted improvi(Jently at sixteen. I there-
fore agree with the late Lords Commissioners^ in denying the
authority.

Sir Dudley Rider, in arguing th.e case of Hervey v. Aston, ex-
pressly founds his argument on the perpetuation of the restraint ;
and Dr. Strahan, who argued on the same side, admits the quali-
fication of time, place, and person, as given before.

The will before us contains a residuary bequest ; but that has
been repeatedly, and well enough determined, to leave the condi-
tional legacy in statu quo f it only prevents that which has not
been disposed of already, whatever be its amount, from falling by
order of law to the executor or next of kin.

But the great vice of the argument in favour of the daughter
lies here. It was not contended against the rules above mentioned,
r*9n81 ^^ *^° bequest, had been to her at *twenty-one or twenty-
'- -' five, in case she were then unmarried, without more, that
she could have claimed the legacy at any other time, or in any
other case. But, because the mother was empowered to accelerate
the gift by her consent to a proper marriage, and a proper settle-
ment, it was theuce argued, that it was indirectly putting an
illegal constraint upon marriage. Now, if the first branch of the
gift did not impose a direct restraint, in contradiction of law, the
relaxation of that condition certainly would not operate as an in-
direct restraint of the same nature.

1 am therefore of opinion, that the daughter, having married
at eighteen improvidently, so far as appears, and against the
anxious prohibition of the mother, never came under the descrip-
tion to which the gift of the 10,000Z. was attached.

It was therefore void, and a part of the residue ; consequently,
it belongs to the assignees of the mother, the defendants ; and the
bill must be dismissed, so far as it seeks to have that trust
executed.

'2 Atk. 184.

2 See Hemmings v Munkley, 1 Bi'O. C. C. 304 ; and see Stackpole v. Beau-
mont, 3 Ves. 89 ; Knight v. Cameron, 14 Ves. 389 ; CliflforJ v. lieaumont, 4
Russ. 32.5.

3Semphill v. Bayly, Tree. Ch. 56 i; Paget v. Haywood, cited 1 Atk. 878,
overruling Amos v Horner, 1 Eq. Ca. Ab. 112, pi. ft, but where there is an ex-
direction that the forfeited legacy shall fall inio the residue See Wheeler v.
Bingham, 3 Atk. 8(i4 ; Lloyd v. Branton, 3 Mer. lOS, overruling dictum in
Reeves v. Heme, 5 Yin. Ab. 343, pi. 41 ; and see Ellis v. Ellis, 1 S. & L. 1.

SCOTT V. TYLER.

475

Upon principles of public policy, conditions annexed to legacies, de-
vises, or contracts, operating unduly in restraint of marriage, as well
as contracts entered into for the purpose of promoting marriage for
reward, or in fraud of one of the parties to the marriage or their friends,
are, by the laws of England, which have in many respects been influ-
enced by the Roman law, utterly null and void. It is proposed in this
note to consider how such conditions and contracts are dealt with in
Courts of equity.

As to Testamentary Gifts prohibiting or tending to a prohibition of
marriage.} — Both by the common law of England, as well" as by the
civil law, all conditions annexed to gif'-s generally prohibiting mar-
riage, are void, as being against public policy, or as, Lord Thurlow ex-
presses it in the principal case, " contrary to the common weal and
good order of society :" Keily v. Monck, .3 Ridgw. P. C. 205, 244, 247,
261 ; Hervey v. Aston, Com. Rep. 726, 129; S. 0., 1 Atk. 361; 1 Eq.
Ca.«A.b. 110, pi. 2, n. a; Eishton v. Cobb, 9 Sim. 615, 619; Morley v.
Rennoldson, 2 Hare, 5Y0 ; Connelly v. Connelly, T Moore, P. C. C. 438.

*And not only condition actuallj"^ prohibiting, but also such
as lead to a probable prohibition of marriage are void. Thus, L •" J
where a legacy was given by a testator to his daughter, payable on her
marriage or age of twenty-one, upon condititjn " that she shall not
marry without consent, or shall not marry a man who shall not be seised
of an estate in fee simple, or of freehold property of the clear yearly
value of 500Z.," the condition was held void : Keily v. Monck, 3 Ridg.
P. C. 205. And see Long v. Dennis, 4 Burr. 2052. For the Roman
law, see Dig. xxxv., tit. 1, 1. 22, 64, 72 ; s. 4, 78 ; s. 4. 100.

But a condition to marry or not to marry particular persons, or at a
particular place, was by the Roman law good, as not operating in gene-
ral restraint of marriage, unless, in the case of a condition to marry a
particular person, it appeared that the match was derogatory ; or, in
the case of the condition to marry at a particular place, it appeared
that marriage would not he likely to take place elsewhere ; for, in these
cases, the condition would be void, as a fraud upon the law: Dig.
XXXV., tit. 1, 1. 63, 64.

Upon the same principle, according to our law, and to a greater ex-
tent than by the Roman law, all conditions which do not, directly or
indirectly, import an absolute injunction to celibacy are valid. Thus,
a condition to marry or not to marry any particular persons {Jervois
V. Duke, 1 Vern. 19; Randal v. Payne, 1 Bro. C. C. 56) ; or a native
of any particular country {Pen-in v. Lyon, 9 East. 170) ; or a person
belonging to a particular religious sect, as a papist (Duggan v. Kelly,
10 Ir. Eq. Rep. 295 ; 1 Eq. Ca. Ab. 110, pi. 2, n. a) ; or a condition which
prescribes the ceremonies of marriage, altliough differing from those
of the established church, as those of the Quakers (Haughton v.
Haughton, 1 Moll. 611) ; or which prohibits marriage before twenty-

476 CONDITIONS IN RESTRAINT OF MARRIAGE.

one, or other reasonable age (Stackpole v. Beaumont, 3 Ves. 89), even
before twenty-eight (Younge v. Furse, 8 De G. Mac. & G. 156), is not
illegal.

It is said, however, that a condition not to marry a man of a particu-
lar profession or calling, whether there be a limitation over or not, is
not legal (1 Eq. Ca. Ab. 110, pi. 2, n. a), upon the ground, it is pre-
sumed, that it leads to a probable prohibition of marriage : Keily v.
Monck, 3 Ridg. P. C. 205, 265.

It has been recentlj- laid down that there is neither principle nor au-
thority for saying that a parent may not make a provision for his
daughter cease on her taking the veil, or becoming permanently con-
nected with a convent. The condition is conditio rei licitse, and so the
^ rules derived from conditious in restraint of marriage* or other-

r*2ioi . .

L -^ wise against the liberty of the law, are inapplicable : Dickson's
Trusts, 1 Sim. N. g. 37^ 45 ; and see Clavering v. Ellison, 8 De G.
Mac. & G. 662 ; 1 Ho. Lo. Ca. 101.

According to the Roman law, when a legacy was given to a widow,
if she did not marry away from her children, the condition would be
void ; but if the legacy were " si a liberis impuberibus ne nupserit,"
the condition would be good ; and the reason given was, '' quia magis
cura liberorum, quam viduitas injungeretur :" Dig. Lib. xxxv., tit. 1,
62, s. 2, and tit. 1, 12. Widows, as observed by Lord Thurlow, in the
principal case, were excepted from the Novels ; and it is clear, that, ac-
cording to our law, a gift during widowhood is good : Barton v. Bar-
ton, 2 Vern. 308 ; Jordan v. Eolkam, Amb. 209 ; Lloyd v. Lloyd, 2
Sim. N. S. 255, 263.

B}- the Roman law, however, all conditions requiring consent to mar-
riage seems to have been void, and the gifts dependent upon them to
have been good upon a marriage taking place without consent (Dig.
XXXV., tit. 1, 1. 72, s. 4") ; as would also be the case if the person whose
consent was required died in the lifetime of the testator : Dig. xxxv.,
tit. 1, 1. 28.

By the law of England, conditions restraining marriage under the
age of twenty-one or other reasonable age, unless with the consent of
parents, guardians, or executors {Sutton ■v.Jewke,2 Ch.Rep. 9 ; Creagh
V. Wilson, 2 Vern. 513 ; Jston v. Aston, Prec. Ch. 226 ; Chauncy v.
Graydon, 2 Atk. 616; Hemmings v. Munkley, 1 Bro. C. C. 304; Dash-
wood V. Bulkeley, 10 Ves. 230), are valid.

But although such restraint may be valid, the effectiveness of the
condition imposed will depend, in a great measure, upon the nature of
the property, and of the condition itself.

The principal case, so thoroughlj' argued before Lord Thurlow, by
the ablest counsel of the day, is generally cited as the leading au-
thority whenever the question arises, whether a condition in restraint
of marriage annexed to a gift is or is not valid. And in deterniiuing

SCOTT V. TYLER. 477

this question, the nature of the property is material ; for, as is laid

down in the principal case, in construing conditions in restraint of

marriage, annexed to a devise of lands, charges upon it, powers to be

exercised over it, monej^ legacies referring to such charges, and money

to be laid out in land, a Court of equity will follow the rule of the

common law. If they are annnexed to a mere personal legacy, it will

follow the rules of the Ecclesiastical Court, derived from the civil law,

except so far as thej' have been modified or departed from by its own

decisions. Unless for the purpose of maintaining uniformity with the

decisions of common law as to land, and of the Ecclesiastical Court

*as to legacies, there exists no reason for the distinction : the

r*2111
construction ought to be precisely the same as to both ; but it L -^

is now too strongly established to be overthrown by anything short of
the interference of the legislature. It was strongly disapproved of by
Lord Rosslyn, who thus accounts for its origin : — " In deciding ques-
tions," said his Lordship, " that arise upon legacies out of land, the
Court very properly followed the rule that the common law prescribes
and common sense supports, to hold the condition binding where it is
not illegal. Where it is illegal, the condition would be rejected, and
the gift pure. When the rule came to be applied to personal estate, the
Court felt the difficulty, upon the supposition that the Ecclesiastical
Court had adopted a positive rule from the civil law upon legatory
questions, and the inconvenience of proceeding by a different rule in
the concurrent jurisdiction, (it is not right to call it so,) in the resort
to this Court instead of tlie Ecclesiastical Court, ujoon legatory ques-
tions, which after the Restoration was very frequent, and in the begin-
ning embarrassed the Court. Distinction upon distinction was taken
to get out of tlie supposed difficulty. How it should ever have come
to be a rule of decision in the Ecclesiastical Court is impossible to be
accounted for but upon this circumstance — that, in the unenlightened
ages, soon after the revival of letters, there was a blind superstitious
adherence to the text qf the civil law. Thej' never reasoned, but only
looked into the books, and transferred the rules, without weighing the
circumstances, as positive rules to guide them. It is beyond imagina-
tion, except from that circumstance, how, in a Christian country, they
should have adopted the rule of the Roman law with regard to condi-
tions as to marriage. First, where there is an absolute unlimited liberty
of divorce, all rules as to marriage are inapplicable to a system of reli-
gion and law where divorce is not permitted. Next, the favor to mar-
riage, and the objection to the restrain of it, was a mere political regu-
lation applicable to the circumstances of the Roman empire at that
time, and inapplicable to other countries. After the civil war, the de-
population occasioned by it led to habits of celibacy. In the time of
Augustus, the Julian law, which went too far, and was corrected by the
Lex Papia Poppsea, not only offered encouragement to marriage but

478 CONDITIONS IN RESTRAINT OF MARRIAGE.

laid heavy impositions upon celibacy. That being established as a
rule in restraint of celibacy, (it is an odd expression,) and for, the en-
couragement of all persens who would contract marriage, it necessarily
followed, that no person could act contrary to it, by imposing *re-
L -' stramts directly .contrary to the law. Therefore it became a
rule of construction that these conditions were null. It is difficult to
applj' that to a country where there is no law to restrain individuals
from exercising their own discretion as to the time and circumstances
of the marriage their children or objects of bounty may contract. It
is perfectly impossible now, whatever it might have been formerly, to
apply that doctrine not to lay conditions to restrain marriage under the
age of twentj'-one to the law of England ; for it is directly contrary to
the political law of the country. There can be no marriage under the
age of twenty-one without the consent of the parent:" Per Lord Ross-
lyn, in Stackpole v. Beaumont^ 3 Ves. 96. And see Pearce v. Loman,
3 Ves. 139.

In our law, however, there is a marked distinction between conditions
precedent and conditions subsequent ; for where a condition is prece-
dent, as the estate cannot commence until the condition is performed,
the condition is beneficial, as creating an estate, and ought to be con-
strued favorably. Where, however, a condition is subsequent, as it
operates by way of destruction of an estate already in existence, and
being of a penal nature it ought to be construed strictly. In conse-
quence of this distinction it will be better to consider conditions prece-
dent and subsequent, as applicable to the subject now under considera-
tion separately.

Conditions Precedent with respect to marriage.] — With regard to a
devise of land (Fry v. Porter, 1 Ch. Ca. 138 : 1 Mod. 300 ; Bertie v.
Lord Falkland, 3 Ch. Ca. 129) ; or of a portion to be raised out of
land, or a legacy having reference, and given as an augmentation, to a
portion to be raised from land (Beves v. Heme, 5 Yin. Abr. 343, pi. 41 •
Heroey v. Aston, 1 Atli. 361 ; Reynish v. Martin, 3 Atk. 330), on con-
dition of marrying with consent, it is clear that it will not take eflfect
unless the condition be complied witli, even although there be no gift
over ; for such condition is valid at common law, and must be complied
with.

And although, from the leaning towards the civil law, it seems at one
time to have been supposed, that where a personal legacy was be-
queathed to a person upon marriage under twenty-one, or other rea-
sonable period, with the consent of persons designated by the testator,
the condition was only in terrorem, and that the legacy would vest
upon marriage, it is now, it is submitted, settled by the principal case,
that such legacy will not vest unless the consent be first obtained ; for
tlie condition is precedent ; and, as it imposes no other restraint upon
the liberty of marriage than is before imposed or is allowed by

SCOTT V- TYLER. 479

*the law of the land, it is sfood, whether there be a limitation

r*213l
over or not {Hemmings v. Munkley, 1 Bro. C. C. 304: 1 Cox. ^ -'

38; overruling Underwood v. Morris, 2 Atk. 184); for although there
is a limitation over in the principal ease, it is not dependent upon a
marriage without consent, but upon dying under a particular period,
without marriage ever having taken place, — a limitation which was dis-
appointed by the marriage of the legatee, though without consent.

This subject was much discussed in the important case of Stackpole
V. Beaumont, 3 Yes. 89. There the testator devised his real estates in
remainder to the use of L. W., or such person, if any, with whom she
should first intermarrjr, " if before twenty-one, then with the consent of
his trustees, or the survivor of them," for their joint lives and the life
of the survivor, &c. Towards the end of his will, he gave to L. W.
10,000L, "payable and to be paid to her as follows : — 5000Z. upon her
marriage with such consent as aforesaid, and 5000/. witinn two years
nest afterwards." L. W., while an infant, and a ward of the Court,
eloped, and was married in Scotland, without the consent of the trus-
tees. Lord Rosslj'n held, that she was not entitled to the legacy.
" Confined to cases," said his Lordship, " where the restraint operates
only up to the age, till which, by the law and policy of , the country,
consent is necessary, I have no difficulty to say there is no authority to
lead the Court to pronounce a proposition so repugnant to that law, as
that such a condition is invalid. In Scott v. Tyler there is a very ac-
curate, though not a very extended, opinion of Lord Thurlow (reported
by Brown), which carries conviction along with it. The question is,
not whether any forfeiture has been incurred, but whether the parties
to whom the legacy is given have put themselves in a situation to an-
swer that description of the person to take. There is no gift here but
in the direction to pay ; for I cannot stop in the middle of a sentence.
He gives her 10,000Z., that is, in effect, two sums of 5000Z., one payable
upon her marriage with consent. She has not married with consent.
She has married without it. Can she claim the 5000/. under the will ?
I do not see the great importance of the distinction upon a bequest
over of the legacy. It is one of the points that occurred to Judges sit-
ting here, to deliver them from the difficulty arising from the rule of
the civil law adopted without seeing the ground and the reason of ap-
plying it to this country under different circumstances." And see
Clifford V. Beaumont, 4 Russ. 325 ; Knight v. Cameron, 14 Ves. 389 •
but see Reynish v. Martin, 3 Atk. 330 ; 1 Wils. 130.

*Where a legacy or annuity is given by a parent to his
daughter provided she does not marry before a certain age, as L "^^^J
for instance the age of twenty-eight, she will not it seems be entitled to
the legacy or annuitj^, if she marry before that age, even with the con-
sent of her parent ; Younge v. Furse, 8 De G. Mac. & G. 756 ; 3 Jur.

480 CONDITIONS IN RESTRAINT OF MARRIAGE.

N. S. 603, where the Lords Justices reversed the decision of Sir John
Romilly, M. R., reported 2 Jur. N. S. 864 ; 26 L. J. Ch. N. S. 111.

There is some doubt, with regard to a personal legacy, whether a con-
dition precedent requiring consent generally^ without reference to the
age of the legatee, is valid, unless it be accompanied by a bequest over
on marriage without consent, in which case it is clearly valid ; Malcolm
V. 0' Callaghan, 2 Madd. 349, 853 ; Gardiner v. Slater, 25 Beav. 509.
So, likewise, is it where there is another legacy or provision for the
legatee in the event of marriage without consent ; Creagh v. Wilson, 2
Vern. 512; Gillet v. Wray, 1 P. Wms. 284 ; but see Nicks v. Pendar-
vis, Freem. Ch. Rep. 41 ; 2 Eq. Ca. Ab. 212. Iir both these instances
the testator may be considered to have shown it as his intention by a
gift over to another, in the first, and by a different gift to the legatee in
the second case, that the condition should not be taken merely as in
terrorem.

Conditions Subsequent with respect to marriage.] — It seems to be
clearly settled, according to the law as administered in Courts of jus-
tice in this country, that, if a condition in restraint of marriage is gen-
eral, and also subsequent, then the condition is altogether void, and
the party retains the interest given to him, discharged of the condition ;
that is, supposing a gift of a certain duration, and an attempt to abridge
it by a condition in restraint of marriage generally, the condition is
prima facie void, and the original gift remains; Morley v. Rennoldson,
2 Hare, 5Y9.

And this would be the case either with regard to a devise of land or
the bequest of a legacy. In Morley v. Rennoldson, 2 Hare, 570, the
testator bequeathed the residue of his personal estate to his daughter
upon trust for her maintenance and support until she attained twenty-
one or married with the consent of his trustees under that age ; and
upon her attaining such age or her marriage, for her separate use,
with remainder to her children ; and in case of her death without issue,
he bequeathed the same to certain legatees in remainder. The testator
afterwards, by a codicil, declared that, in consequence of a nervous de-
bility his daughter was unfit for the control of herself, and his will was,

^ that she should not marry ; and in case of her marriage or *death
r*2151
L -'he gave the property he had bequeathed to her over to the same

legatees in remainder. It was held by Sir James Wigrani, V. C, that
the restraint upon marriage being general, the condition was void, not-
withstanding the limitation over. " The question to be considered,"
said his Honor, " is that upon which, in fact, I reserved my judgment, —
whether, according to the true intent of the second codicil, it must be
considered as confirming the gifts made by the will, and then seeking to
determine them on the event of marriage, or whether it was not a com-
plete substitution of new bequests, amounting in substance to a limita-
tion during celibacy. Without saying the case is clear, the conclusion

SCOTT V. TYLER. 481

to ■which I have come is, that this codicil does, in point of fact, recog-
nise and confirm the prior bequests by the will In the

case of Malcolm v. 0' Callaghan (2 Madd. 349), which was cited, mar-
riage with consent was a condition precedent by the will, and the codi-
cil giving the legacy to the survivor of the daughters who should die
before the age of twentj'^-flve or marriage witli consent, was held to
keep alive the condition. The testator, in this case, has so expressed
himself as to import an intention to create a general restraint upon the
marriage of the legatee, and the limitation over with that object is

therefore prima facie void I cannot do otherwise than

hold, that this is a conditional gift in general restraint of niarriage, by
which the testator seeks to cut down an interest which he had given by
will ; and, therefore, that I must hold this to be a void condition." See
also Lloyd v. Lloyd, 2 Sim. N. S. 255.

And even where the condition in restraint of marriage is not general,
but against marriage with a particular person (IF. v. B., 11 Beav. 621 ;
and see Poole v. Bott, 11 Hare, 33), or restraining a widow of a testa-
tor from marrying again {Harpies v. Bainbridge, 1 Madd. 590), in the
absence of a gift over upon breach of the condition^ it has been con-
strued as in terrorem merely.

Where, however, there is a gift over on marriage, and even, it seems,
where the gift to the widow is made to cease upon marriage, a condi-
tion subsequent against marriage generally, attached to a devise or be-
quest, is valid, not only when the legatee or devisee is the widow of the
testator (Tricker v. Kingsbury, 1 W. R. V. C. W. 652; Graven v.
Brady, 4 L. R. Eq. 209), but also when she is the widow of another
person (Charlton v. Coombes, 11 W. R. V. C. S. 1038). In Newton v.
Marsden, 2 J. & H. 356, by a will certain trusts were declared for the
benefit of the widow of the testator's nephew and her children, under
which the widow was entitled to certain rents of real estate, and to an-
nuities *charged primarily on real estate, and to be made up if

r*2161
necessary, out of personal estate, and there was a proviso that, •- -'

if the widow married again, the trusts for her benefit should absolutely
cease and be void. It was held by Sir W. Page Wood, V. C, that the
condition was valid. " It seems to me," said his Honor, " that the real
principle in the case of a gift by a husband is, that the condition is not
regarded as an arbitrary prohibition of marriage altogether, but the
conditional gift is considered as made to the widow because she is a
widow, and because the circumstances would be entirely changed if she
entered into a new relation. The very same consideration applies to
this gift, and I think it would be reasonable, on a will of this kind, to
hold that the case falls within the principle which governs a gift to a
man's own widow. But I prefer to rest my decision on what is perhaps
the safer as well as the broader ground, namely that there is no au-
thority in the common law, independentlj' of the civil law, for saying
VOL. II 81

482 CONDITIONS IN RESTRAINT OF MARRIAGE.

that a condition restraining the marriage of a widow is void ; and hav-
ing regard to the observations of Lord Loughborough, I do not hesi-
tate to say, that I shall not introduce any new doctrine to carry the
rule of avoiding restraints on marriage beyond the limits of the old au-
thorities : " and see Tricker v. Kingsbury, 'T W. R. V. C. W. 652.

Whether a condition defeating a gift to a man on his second mar-
riage is good or bad, does not appear to have been decided ; Evans v.
Bosser, 2 Hem. & Mill. 190.

Where a legacy is given to a woman absolutel}^, at a certain time,
and there is a subsequent condition requiring consent to marriage, the
condition will be construed as in terrorem, if there be no bequest over,
although there be a diminished gift to the legatee in the alternative of
her marrying without consent ; Garret v. Pritty, 2 Vern. 293 ; 3 Mer.
120, n.

If the power of diminishing the legacy is delegated to another person,
the condition will be considered as in terrorem merely, in the same
manner as if the diminution of the legacy had been provided by the
testator in his will ; Wheeler v. Bingham, 3 Atk. 364.

Should, however, the legacy be limited over to another person on tlie
marriage without consent, the condition will not be considered merely
as in terrorem, but on breach of it, the gift over will take eifect; Strat-
ton V. Grymes, 2 Vern. 35Y ; Barton v. Barton, 2 Vern. 308. And see
3 Atk. 36Y.

Different reasons have been assigned by different judges for the
operation of a devise over. Some have said that it afforded a clear
manifestation of the intention of the testator not to make the declara-
tion of forfeiture merely in terrorem, which might otherwise have been
P^gi h-i presumed. Others have *said, that it was the interest of the
L -' devisee over which made the difference ; and that the clause
ceased to be merely a condition of forfeiture, and became a conditional
limitation, to which the Court was bound to give effect. Whatever
might be the ground of decision, it was held, that where the testator
only declared that, in ease of marriage without consent, the legatee
should forfeit what had been before given, but did not say what should
become of the legacy, such declaration would remain wholly inopera-
tive." Per Sir W. Grant, M. R., in Lloyd v. Branton, 3 Mer. IIT.

It seems that a mere gift of a residue, as is laid down by Lord Thur-
low, in the principal case, will not be considered as a bequest over, for
it has been repeatedly determined that that will leave the legacy in
statu quo, as it only prevents that which has not been disposed of
already, whatever be its amount, from falling, by order of law, to the
executor or next of kin: Paget v. Haywood, cited 1 Atk. 318 ; Keily v.
Monck, 3 Ridg. P. C. 205, 252; overruling Amos v. Horner, 1 Eq. Ca.
Ab. 112, pi. 9.

However, there is a clear distinction between a mere residuary be-

SCOTT V. TYLER. 483

quest, and a direction that a legacy should sink into and form part of
the residue ; for that is tantamount to a gift over to the persons partici-
pating in the residue: Wheeler v. Bingham, 3 Atk. 368. And see
Lloyd V. Branton, 3 Mer. 108, 118.

Limitations until marriage as distinguished from conditions.] —
Where property is limited to a person until marriage, and upon mar-
riage then over, the limitation is good. " It is difficult," says Sir J.
Wigram, V. C, " to understand how this could be otherwise : for in
such a case there is nothing to give an interest beyond the marriage.
If you suppose the case of a gift of a certain interest, and that interest
sought to be abridged by a condition, you may strike out the condi-
tion and leave the original gift in operation ; but if the gift is until mar-
riage, and no longer, there is nothing to carry the gift beyond the mar-
riage. ... I am satisfied, from an examination of the authorities,
that there is no reason to alter my opinion, that a gift until marriage,
and when the party marries then over, is a valid limitation. In the
case of a widow, there is no question of the validity of such a limitation.
It was decided in Jordan v. Holkham, Amb. 209, that, where an estate
was given during the widowhood, the estate was determinable by the
second marriage ; and an annuity given during widowhood is also good :
Barton v. Barton (2 Vern. 308). In Scott v. Tyler (ante, 205, 206),
Lord Thurlow, speaking of the change which the civil law had under-
gone in its descent, observes, that, in the Novels, ^widowhood |-^„, „-,
was excepted, and an injunction to keep that state was a lawful
condition : Scott v. Tyler, was certainly a peculiar case: but, referring
to the canon law, Lord Thurlow, citing Godolphin, says, that the use
of a thing may be given 'during celibacy for the purpose of intermedi-
ate maintenance, and will not be interpreted maliciously to a charge of
restraining marriage ' (ante, 206), affirming, therefore, the general doc-
trine, that a gift until marriage would be good. In the case of Low v.
Peers, C. J. Wilmot's Cases, 369, Chief Justice Wilmot goes through
the cases upon the subject, and shows that, according to his apprehen-
sion of the law, a gift until marriage is perfectly good. He notices the
case of college fellowships, of customs of manors, of limitations of es-
tates during celibacy, and the express distinction between limitations
and conditions ; and he remarks, that that distinction is recognised and
established, and that the common law allows it. I may refer to the
cases, and amongst them to the later ones of Bird v. Hunsdon (2
Swanst. 342), and Marples v. Bainbridge (1 Madd. 590), as affirming
the same proposition. In those cases, all the reasons the Court re-
ferred to were superfluous, if a limitation during celibacy is not good.
The Court might have taken the short course, and have said that it was
in the nature of a restraint, and therefore could not be supported: "
Morley v. Rennoldson, 2 Hare, 580 ; Evans v. Rosser, 2 Hem. &
Mill. 190.

484 CONDITIONS IN RESTRAINT OF MARRIAGE.

In Webb v. Grace, 2 Ph. '701, A. covenanted to pay E. C. during her
life, subject to the proviso thereinafter contained, an annuity of 40Z., the
proviso being, that in case E. C. should at any time thereafter happen
to marry, the annuity should thenceforth be reduced to 20L onlj', which
sum should, in such case, be paid and payable to E. C. from the tinae of
her marriage for the remainder of her life. E. C. having married, Lord
Cottenham, reversing the decision of Sir L. Shadwell, V. C. (reported
15 Sim. 384), held her only to be entitled to the annuity of 20L " The
question," observed his Lordship, " turns upon the construction of the
covenant ; for there reall}' cannot be any doubt as to the rule of law.
The questions which have arisen as to conditions subsequent in restraint
of marrying do not appear to me to apply. There can be no doubt that
marriage may be made the ground of a limitation ceasing or commenc-
ing. It is necessary to refer to authorities for this purpose : Richards
V. Baker (2 Atk. 321), Sheffield v. Lord Orrery (.3 Atk. 282), Gordon
V. Adolphus (3 Bro. P. 306, Toml. edit.), were cited in the argument.
If, then, this grant is a grant of 40L per annum until marriage, and,
from that event happening, of 20L per anpum for life, there can be
r*'?iqi *^^ doubt but that such a gift is lawful, and that, after mar-
riage, there can be no demand for the 40Z. per annum. The
claim is grounded upon contract and obligation on the part of the
grantor; the parties claiming must therefore prove that their claim is
within the terms of the contract and obligation. ... Is there, in
the covenant, any contract or obligation to pay 40Z. per annum after
the marriage of E. C. ? The argument in favor of the claim assumes
that there is an unqualified grant of an annuity of 40L per annum for
life, and an attempt to defeat the gift by an illegal condition subsequent.
This proposition, I think, fails in all its parts : for there is not any un-
qualified gift of an annuity of 40Z. for life ; the contract and obligation
is, to pay to E. C. during her life, subject to the proviso hereinafter
contained, an annuity of 40Z. at certain times specified. The contract
and obligation is not absolute and unqualified, but explained, qualified,
and bound by the proviso, and must be construed precisely in the same
manner as if the terms of the proviso had been introduced into and
made part of the contract and obligation. It is, therefore, to pay 40Z.
per annum to her during so much of her life as she shall remain unmar-
ried, which brings the case within the unquestioned rule of law, as acted
upon in the cases referred to. One of them, indeed — Sheffield v. Lord
Orrery — is, upon this point, stronger than the present ; for there was a
gift for life, without any qualification in the terms of the grant, but a
subsequent condition, giving the propert}-^ over in the event of marriage ;
and Lord Hardwicke said, that the gift over was to take effect on the
marriage. There is another way in which this may be viewed equally
fatal to the claim. The contract and obligation is, to pay a certain
sum at certain stipulated periods during the life of E. C. ; but she is, by

SCOTT V. TYLER.

485

the proviso, at each of those periods to be qualified to receive it by the
fact of not being married. Can she claim any of snch payments, though
disqualified by the fact of marriage ? The condition, therefore, if there
be one, is precedent and not subsequent.''

In Heath, v. Lewis (3 De G. Mac. & Gr. 954) a testator bequeathed an
annuity to a single lady (if living and unmarried at the death of a prior
annuitant) " during the term of her natural life, if she shall so long re-
main unmarried : '' it was held by the Lords Justices to be a limitation
as distinguished from a condition, and that the annuity ceased when
the lady married. " It must be agreed on all hands," said Lord Justice
Knight Bruce, " that it is by the English law competent for a man to
give to a single woman an annuity until she shall die or be married,
whichever of these two events shall first *happen. All men r^oof)-]
agree that if such a legatee shall marry, the annuity will there-
upon cease. But this proposition has been advanced — a proposition
which, if true (and I do not dtny its truth), is, perhaps, not creditable
to this English law — -that if a man give an annuity to a woman, who has
never married, for life, and afterwards declares that, if she sliall marry,
the annuity shall be forfeited, the condition is void, and she may yet
marry as often as she will, and retain her annuity. Such is the state
of our English law on this subject said, and perhaps truly, to be ; and
the question argued before us has been, to which of these two classes
the gift in this will belongs, being a gift of an annuity to a single lady
' during the term of her natural life, if she shall so long remain unmar-
ried.' This language being the technical and proper language of limita-
tion as distinguished from condition, long known to the English law,
and familiar to us all. Both upon precedent and reason, upon principle
and authority, I am of opinion that this is a limitation as distinguished
from a condition, and that the annuity ceased when the lady married."

In the recent case of Cooper v. Cooper, 6 Ir. Ch. Rep. 21 1, a testator
by his will, dated in 1841, devised lands to trustees upon trust for B.
for life, " provided she does not marry, and from and after her decease
or second marriage," for other persons. In 184'! the testator married
B., and afterwards made a codicil to his will which had the effect of re-
publishing it. It was held by Lord Chancellar Brady, that the devise
tO/B. took effect notwithstanding her marriage to the testator. " Look-
ing," said his Lordship, " at what took place, and the fact that she had
married the testator himself, it would be a very strong thing to decide
that where, by his own act, he induced her to break the condition, she
was to be deprived of all this estate. I must, however, treat the codi-
cil as a republication, and therefore as declaring that, at all events, at
the time of its execution, it was his will that she should take this prop-
erty unless she should afterwards marry." See also In- re Corkers v.
Minors, 1 Jr. Jur. 316; West v. Kerr, 6 Ir. Jur. 141; M'Culloch v.
Jf ' Culloch, 3 Giff. 606.

486 CONDTTIONS IN KESTEAINT OF MARRIAGE.

As to Consent to Marriage.] — A marriage in the lifetime of the
father, with his consent, or even his subsequent approbation, is equiva-
lent to a marriage after his death with the consent of trustees. Thus,
in Clarke v. Berkeley, 2 Vern. 720, under a devise upon trust to con-
vey to the testator's daughter, in case she married with the consent of
two of the trustees and her mother, but, if she died before marriage, or
married without such consent, to other uses ; the daughter having
r*99i1 *ii'iarried in her father'' s lifetime with his consent, Lord Cow-
per decreed a conveyance according to the will, declaring that
the condition was dispensed with, by having the testator's own consent,
which was more to be regarded than any consent of trustees to whom
he had delegated a power to consent, in case of marriage after his de-
cease. So, in Coffin v. Cooper, cited 1 V. & B. 481, where a testator
gave the residue of his property to his children at twenty-one, adding a
proviso, that if any of his daughters married with the consent of his
trustees, such daughter was to take immediately two-thirds of her por-
tion, the other third to be settled to her separate use ; if, without such
consent, then making a different disposition. One of the daughters
married in the testator's lifetime without his consent, but he afterwards
approved of the marriage. The Court considered the clause substan-
tially complied with. See Parnell v. Lyon, 1 V. & B. 479 ; Wheeler v.
Warner, 1 S. & S. 304 ; Coventry v. Higgins, 14 Sim. 30.

Upon the same principle. Lord Rosslyn held a condition in a will
requiring the consent of trustees to a marriage not to be applicable to
the second marriage of a daughter who had married between the date
of the will and the death of the testator, and was a widow at his death.
" It would," he observed, " be the absurdest of all constructions, that
a will, intended to provide for a marriage, and enable the wife to pro-
vide for the children, must, by these conditions, so inapplicable to the
case of a daughter married and having children, compel her to marry
again for the sake of the children by the first marriage." Crommelin
V. Crommelin, 3 Ves. 22t.

Where no particular mode is prescribed for trustees to give their
consent, it will be presumed that they have given it where they have
allowed courtship and marriage to take place without expressing their
dissent, especially if from any fraudulent or corrupt motive they have
withheld actual consent. Thus, in Mesgrett v. Mesgrett, 2 Vern. 580,
H. T. gave to Maria, her only child, 300Z. ; but if she married before
twenty-one, without the consent of her executors, Mesgrett, Tanden and
Chawell, it was to go to the children of her sister, the second wife of
Mesgrett. Maria being eleven years old at the death of her mother
lived for some time with Chawell, and was there courted by the son of
Mesgrett by a former marriage ; and afterwards Maria removed to the
house of Mesgrett, where the marriage was had with his privity. The
other executors having notice the match was being carried on, did not

SCOTT V. TYLER.

487

contradict or disapprove of it, or remove the young woman as they might
have done. Upon pretence that the legacy was forfeited, Mesgrett
claimed it for his children *by his second wife ; but Lord r*2221
Keeper Cowper held that Maria and her husband were entitled
to the legacy, " it plainly appearing there was at least a tacit consent,
and the will not prescribing the manner of the consent to be in writing,
or otherwise ; and looked upon it as a fraud in Mesgrett in promoting
the marriage, and afterwards to pretend a forfeiture for want of a con-
sent to gain the legacy to his children by his last wife." Lord Eldon,
approving of this case, in Clarke y. Parker, 19 Ves. 12, says, neverthe-
less, that it would be difficult to support it, if consent in writing had
been requird, and that the Lord Keeper laid stress on the circumstance,
that, as writing was not required, consent might be signified by acts,
without a formal consent. However, in Lord Strange v. Smith, Amb.
263, although the written consent of the mother was made requisite, it
was held by Lord Hardwicke, that the mother having made the first
offer to Lord Strange, received him at her house, encouraged his ad-
dresses to her daughter, and treated with him and his father about the
settlement, had thereby given her consent (although it does not appear
by the report that it was in writing) ; and that she could not withdraw
it, on account of the offence she took at Lord Strange, for some reflec-
tioQS which she heard that he had made upon her. Lord Eldon,
although he cites this case in Clarke v. Parker, does not notice that
the consent was required to be in writing. In Worthington v. Euans,
1 S. & S. 165, where, however, a letter written by the trustee the day
before the wedding, was held to be a sufficient consent in writing. Sir
John Leach, V. C, said, " that if there had not been such a letter, in-
asmuch as the formal consent in writing would have been executed by
him, but for the accidental delay occasioned by the other trustee, and
not from any change of purpose, the court would have considered his
consent to have been substantially given, according to the will ; because
he had expressed his full approbation of the marriage, and only did not
sign it for a reason personal to himself."

Courts of equity are disposed to put a favorable construction upon
the expressions of trustees where consent is requisite, so as to prevent a
breach of condition, especially after a mutual attachment has been suffered
to grow up under their sanction. Thus, in Daley v. Desbouverie, 2 Atk •
273, where the consent (not in writing) of three trustees, or the major
part of them, was necessary, a proposal was made by the intended hus-
band for a settlement to one of the trustees who communicated it to
his co-trustees ; and one of the trustees, writing on behalf of the
other, said, " If the father will make the settlement *proposed, r^a^o-i
we believe the young folks are too far engaged for us to attempt
break off the match, and therefore we shall be obliged to consent to it."
The trustees afterwards refused their consent, unless the lady's portion

488 CONDITIONS IN RESTRAINT OF MARRIAOE.

was settled in a particular manner, and the parties were married " by
John Graynman, the famous Fleet parson." Lord Hardwicke, never-
theless, held, that the marriage was substantially with the consent of
the trustees. So, in D'Aguilar v. Drinkwater, 2 V. & B. 2-25, where
the marriage was to be with the consent of three trustees, first obtained
in writing, it was held that the consent of all was duly obtainecl, al-
though two of them onlj' had expressly given their consent ; the other,
only in general terms, stated in a letter, that " he would never stand in
the way of any arrangement by the co-trustees," and advised a settle-
ment, he having previously encouraged the proposal, and, though fraud
was not imputed, having a prospect of benefit from the forfeiture. See
also Le Jeuney. Budd, 6 Sim. 441. See, however. Lord Eldon's obser-
vations on Daley v. Desbouverie, in Clarke v. Parker, 19 Yes. 12, 18.

In Pollock V. Croft, 1 Mer. 181, where there was a bequest of per-
sonal estate to A., provided she married with the consent of B., but if
she married without such consent, then to C, Sir William Grant, M. R.,
held, that a general permission given by B. after A. attained twenty-
one, to contract marriage as she might think fit, and subsequent appro-
bation of a marriage contracted under such general permission without
his knowledge, was a sufHcient compliance with the requisition ; but as
the consent only appeared by the answer of B., which could not be
read against C, who was an infant, a reference was directed to the
Master to inquire what consent was given by B.

The Court has assumed the power, although it be a dangerous one,
of examining whether the refusal of consent by a trustee proceeds from
any vicious, corrupt or unreasonable cause : Dashwood v. Lord Bulke-
ley, 10 Ves. 245; Clarke v. Parker, 19 Ves. 18. But even if the per-
son who refuses his consent be the devisee over, he is not obliged to
show his reason for dissent — it lies upon the party requiring assent to
show that it has been unreasonably refused ; " for," as observed by
Lord Eldon, "the testator must know that he has made necessary the
consent of a person who has an interest:" Clarke v. Parker, 19 Ves.
22. See, however, the remarks of Lord Hardwicke, in Hervey v. As-
ton, Atlc. 381 ; and of Lord Mansfield, in Long v. Dennis, 4 Burr. 2052.

If a trustee, whose consent to a marriage is required, refuse to inter-
fere, either by consenting or objecting to a proposed match, the Court

^^ „ -, '"'ill direct a reference *to inquire and state to the Court whether

r*2241

'- -^ the marriage is a proper one : Goldsmaid v. Goldsmaid, G.

Coop. 225.

If consent be once obtained, unless by fraud or misrepresentation

(Dillon V. Harris, 4 Bligh, 321), it cannot without a sufficient reason

be withdrawn, especially if the person so withdrawing his consent

would derive a benefit from a marriage without consent : Loi'd Strange

V. Smith, Amb. 263 ; Merry v. Ryves, 1 Eden, 1 ; Le Jeune v. Budd, 6

Sim. 441. In Dashwood v. Lord Bulkeley, 10 Ves. 230, the refusal

SCOTT V. TYLER. 489

of the intended husband to make a settlement was held by Lord Eldon
a sufficient reason for the trustees withdrawing their assent to the mar-
riage, which they had given upon condition of his making it.

When the consent of all the trustees is required, the consent of two,
without the third being consulted, is insufficient, as there is a discretion
in him as well as the others {darken. Parker, 19 Ves. 1) ; but the con-
sent of one of the executors or trustees, who renounced or never acted,
.would, according to the more recent authorities, be unnecessary, the au-
thority of consent being annexed to the office. See Clarke v. Parker,
19 Ves. 15, 16 ; Worthington v. Evans, 1 S. & S. 165. However, in Gray-
don V. Hicks, 2 Atk. 16, where the marriage was to be with the consent of
the executor Graydon, the executor renounced, and administration was
granted to one Timewell, a marriage took place without any consent ;
but it was objected, that it was not a breach of the condition, because
Graydon had renounced, and administration with the will annexed, had
been granted to Timewell ; but Lord Hardwicke was of opinion, that
the objection was not well grounded, and that the legacy was forfeited ;
as the word " executor " was a description of every person who should
be administrator ; and that it was a power not annexed to the office of
executor, but independent from the rest of his duty as executor.

" Where the condition has become impossible by the person dying
whose consent was necessary before marriage, it is an excuse:" Per
Lord Hardwicke, in Graydon v. Hicks, 2 Atk. 16. A,nd see Aislabie
V. Rice, 3 Madd. 256 ; Grant v. Dyer, 2 Dow. 93 ; Gollett v. Gollett, 35
Beav. 812; 14 W. R. M. R. 446. So, where a legacy was bequeathed
to a lady upon condition of her marrying with the consent of two per-
sons, who were also executors ; on the death of one of them, the con-
dition being subsequent and become impossible, she might marry
without the consent of the survivor : Peyton v. Bury, 2 P. Wms. 626 ;
but see Jones v. Earl of Suffolk, 1 Bro. C. C. 529.

The subsequent approbation of persons whose consent is necessarj'
to a marriage, is immaterial, *because it cannot \amount to a
performance of a condition, or dispense with a breach of it : '- -■
Reynish v. Martin, 2 Atk. 330 ; Fry v. Porter, 1 Oh. Ca. 138 ; 1 Mod.
300. Lord Hardwicke, in Burleton v. Humphrey, Arab. 256, where
the marriage was to be with " the consent or approbation " of a trustee,
who did not give his approbation until a month after the marriage,
struggles to distinguish between consent and approbation; and the con-
dition being in the latter part of the clause expressed in the alternative,
inclined to the opinion that the subsequent approbation would do.
" Lord Thurlow, however," says Lord Eldon, " denied that, as he did
not see why subsequent approbation, if sufficient after eleven months,
would not do at any time during the whole life of the trustee ; during
which it must be quite uncertain whether the marriage was had in con-
formity with the condition or not:" Clarke v. Parker, 19 Ves. 2L

490 CONDITIONS IN KESTRAINT OF MARRIAGE.

And where the condition was that the party should not marry against
the consent of the trustees, a marriage contracted without their knowl-
edge, but with their subsequent approbation, was held a breach of the
condition ; Long v. Ricketts, 2 S. & S. I'TQ.

Where a legacy is to vest or be paid at a particular age, and then
there is a clause of forfeiture on marriage without consent, such clause
will be construed as having relation to a marriage under the specified
age ; Lloyd v. Branton, 3 Mer. 116 ; Osborny. Brown, 5 Ves. 527. And
see Deshody v. Beyuille, 2 P. Wms. 45'r.

The court may relieve against forfeiture accasigned by the negligence
of a trustee. Thus in 0' Gallaghan v. Cooper, 5 Ves. 11*7, a trust term
was liinited to trustees, to raise out of real estate portions for daugh-
ters, to be paid on marriage, upOn condition that they should be mar-
ried with consent of their mother, or, after her death, of the trustees,
and that the husband should previously make a settlement. A marriage
having taken place with the consent of the mother and the privity of
the trustee, but by the neglect of the trustee, without any settlement,
the husband having before and after the marriage offered all that was
required of him, and being ready to execute a settlement within the
condition, relief was given upon those circumstances by raising the por-
tion upon the execution of the settlement. See also Mallon v. Fitz-
gerald, 3 Mod. 28.

Where the testator has not made the consent of other persons requi-
site, the question may arise, when he has imposed any condition with
respect either to the time of marriage, or against marriage with a par-
ticular person, how far by Ms own consent to the marriage he will be
held to have dispensed with the condition, and it seems that where the
condition is subsequent, the consent of the person *who imposed

r*226l -11 r jr

L -I the condition will remove the consequence of its non-perform-
ance. Thus, in Smith v. Cowdery, 2 S. & S. 358, a testator bequeathed
his residuary personal estate unto his executors upon trust to pay and
divide the same equally amongst his children, Susannah, Mary, Ann,
Fanny, and William, when they should respectively attain twenty-one,
or on the day of marria,ge, the interest in the meantime to be applied
for their maintenance, " except his daughter Mary, whose share the
testator directed should be paid to her upon the day of her intermar-
riage with anj-^ other person excepting H. T., and the interest in the
meantime to be applied for her maintenance." And the testator
directed that " in case his daughter Mary should at any time thereafter
intermarry with H. T., then upon trust to pay and divide her share of
the residue of his personal estate " unto and amongst his other chil-
dren. The testator died on the 1st of June, 1795, but his daughter
had during the testator's lifetime, and with his consent, married H. T.
It was held by Sir John Leach, Y. C, that Mary was entitled to her
legacy. " The testator," said his Honor, " introduces a condition in

SCOTT V. TYLER.

491

his will to prevent the marriage of his daughter Mary with H. T. After
the making of his will, his daughter married H. T. with his express
consent and approbation ; and the condition is thus dispensed with. In
coming to this conclusion I follow the cases of Clarke v. Berkeley, 2
Vern. '720 ; Grommelin v. Grommelin, 3 Ves. 22Y ; and Parnell v. Lyon,
1 Ves. & B. 419."

But the consent of the testator will not dispense with a condition
precedent, that is to say where the performance of the condition is
necessary before any interest is taken by the intended legatee or devi-
see. In Bullock V. Bennett, *l De G. Mac. & G. 283 ; a testator be-
queathed a sum of money upon trust for his daughter then a widow,
'•'■for life, or until her marriage, or after her decease or marriage,
which should first happen," upon trust for the children of his daughter
by her first and second husband, both then deceased. Between the date
of the will, and the testator's death, his daughter married a third hus-
band, with her father's knowledge and approval, but he died without
having republished his will. It was held by the Lords Justices, rever-
sing the decision of Sir W. Page Wood. V. C. (reported 1 K. & J.
315), that the interest of the daughter had ceased, and that the gift
over took effect. Their Lordships thought that the case was not
affected by the 24th section of the Wills Act (1 Vict. c. 26), which
they considered made the will speak as if executed immediately before
the death of the testator with reference to the real and personal prop-
erty comprised in it, and *not with reference to the objects 1-^0017-1
of his bounty who are to take the real and personal estate.
"The Vice-Chancellor," said Lord Justice Turner, "seems to have
placed some reliance on the circumstance of the testator having ap-
proved the marriage. But this circumstance does not appear to me to
be material. He might approve the marriage, and still intend the dis-
positions of the will to take effect. It seems probable indeed that this
was his intention, for the dispositions over are in favour of children of
the former marriages, for whom the daughter might be disabled from

providing by the tiiird marriage Some authorities were

referred to on the part of this lady in the course of the argument : but
they were cases in which the provisions of the will applied to mar-
riages with the consent of trustees appointed by the testator's will, and
the marriages afterwards having taken place in the lifetime of the tes-
tator, the legatees were held to be entitled. These cases do not seem
to me to touch the present. The plain intention in such cases is to pro-
vide for the event, not of any marriage, but of an improvident mar-
riage, and the consent of the testator proves that he did not consider
the marriage to be improvident. But here the provision in the will ap-
plies to any marriage, whether provident or improvident."

In Younge v. Furse, 3 Jur. N. S. 603, 8 De G. Mac. & G. 156, the
testator gave his daughter an annuity of 50Z. for life, " providing that

492 CONDITIONS IN RESTRAINT OF MARRIAGE.

she did not marry before she arrived at the age of twenty-eight." Sub-
sequently, on being applied to for his consent to his daughter's mar-
riage, she being then under twenty-one j^ears of age, the testator wrote,
" You have mj' qualified consent ; but I must hear, of course, from my
daughter before 1 can make that absolute." The daughter wrote to the
tastator stating her consent, and he wrote back to say he was very ill
and could not appoint a time to attend to business, and on the follow-
ing daj' he died. The daughter married after the death of the testator,
and under the age of twenty-eight years. It was held by the Lords
Justices of the Court of Appeal, reversing the decision of Sir John
RomOly, M. R. (reported 2 Jur. N. S. 864), that the daughter was not
entitled to the annuity. Lord Justice Knight Bruce is reported to
have said, that "if the condition on which the present contention arises
was precedent, I think that it was valid, and that its performance has
become impossible, and that therefore the gift cannot take effect. If it
was subsequent, it was, in my opinion, reasonable and valid ; and it
has not been testamentarily waived ; and supposing it capable of being
otherwise waived, it has not in my judgment been so waived. In say-
ing this I assume the testator's consent *to the marriage to
r*2281 ...

L -' have been absolute ; for, in my view, its being absolute is im-
material in such a case and under such testamentary dispositions as
those before us." Lord Justice Turner, said, " This condition has not
been complied with, and as to the consent of the testator to the mar-
riage, I do not think that he ever gave an unconditional assent." And
Lord Justice Knight Bruce further added, that he had assumed for the
purposes of the argument, that the testator's consent to the marriage
had been absolute ; for in his view the absoluteness of such consent
was immaterial in such a case. See West v. Kerr, 6 Ir. Jur. 441 ; Davis
V. Angel, 31 Beav. 223.

From these authorities we may come to the conclusion that the con-
sent of the testator in such cases, not testamentarilj' given, will not
dispense with a condition imposed by his will, unless it be a condition
subsequent.

As to whether conditions requiring marriage with consent are broken
by a first marriage without consent, so as to disable a legatee from
taking upon a second marriage with consent : see Randall v. Payne, I
Bro. C. C. 55; Page v. Hayward, 2 Salk. 5T0; Lowe v. Manners, 5 B.
& Aid. 91Y ; Stackpole v. Beaumont, 3 Ves. 89 ; Clifford v. Beaumont,
4 Russ. 325 ; Beaumont v. Squire, lY Q. B. 905 ; Davis v. Angel, 31
Beav. 223.

Where a condition against marriage was broken bj'' a widow, who
concealed her second marriage, her husband, who was aware of the con-
dition, was held bound to refund the income which trustees had paid
to her in ignorance of the marriage : Charlton v. Coomes, 4 Giif. 382 ;
11 W. R. (V. C. S.) 1038.

SCOTT V. TYLER. 493

In a case where an estate was limited over in a settlement to the
plaintiff on tlie second marriage of the defendant a widower, the plain-
tiff filed a bill, alleging that the marriage had taken place, and seeking
discovery, a declaration of the rights of the parties, and the appoint-
ment of new trustees. It appeared by the evidence that no marriage
had taken place, but that the defendant was cohabiting with a woman
whom he held out to the world to be his wife. It was held, however,
by Sir W. Page Wood, V. C, that as the plaintiffs failed in what was
really their whole case, they ought to pay the costs of all parties up
to the hearing, although incidental relief was granted by the appoint-
ment of new trustees : Preece v. Seale, 3 Jur. N. S. 111.

Persons will not be permitted to allow a long time to elapse without
making any claim, and then to insist on a forfeiture, and throw on the
persons entitled the burden of proving that there has been none. Thus,
wliere a legacy was given, conditional on the consent and approbation
of the trustees, and the party entitled in default of consent made no
claim until twenty-eight years had elapsed after the *marriage, r^t-noQ-i
and the trustee and the legatee were all dead, it was held by
Sir J. Romilly, M. R., although there was no distinct proof of consent,
yet that it was to be presumed, under the circumstances of the case.
"The ground," said his Honor, " I proceed on is, that after the lapse
of twenty-eight years from the marriage, and after the death of the
trustees, everything is to be presumed in favor of the legatee. That is
the ground on which I proceed in this case. If this contest had taken
place immediately after the marriage had occurred, and the fact before
me had been, that the trustees knew nothing about it, and gave their
approbation subsequently, I should be of opinion, that the legacy was
forfeited:" He Birch, 11 Beav. 358.

Of the laws as administered in England, in contrast from those of
Rome, in regard to restraint upon marriage, Mr. Fonblanque has well
observed, that " the claims of parental authority, controlled as theyare
by the law of England, merit considerable respect : nor has tlie right
which individuals have of qualifying their bounty, been disregarded.
The onlj- restrictions which the law of England imposes are such as
are dictated by the soundest policy, and approved by the purest mo-
rality : that a parent, professing to be affectionate, shall not be unjust ;
that, professing to assert his own claim, he shall not disappoint or con-
trol the claims of nature, nor obstruct the interests of the community ;
that, what purports to be an act of generosity, shall not be allowed to
operate as a temptation to do that which militates against nature, mo-
rality, or sound policy, or to refrain from doing that which would serve
and promote the essential interests of society ; are rules which cannot
reasonably be reprobated as harsh infringements of private liberty or
even reproached as unnecessary restraints on its free exercise." 1
Fonbl. 257.

494 CONDITIONS IN RESTRAINT OF MARRIAGE.

Contracts in restraint of marriage, or in fraud of the marriage con-
tract.]— Upon the principle of public policy, contracts, in restraint of
marriage are lield void. Thus, in Baker v. White, 2 Vern. 215, a widow
gave a bond to pay B. 1001. if she married again, and B. gave a bond
to her, to pay her executors the like sum if she should not marry again.
On the marriage of the widow^, a bill being filed by her and her hus-
band, the Court ordered her bond to be delivered up to her, and also
the bond of B. to be delivered up to him.

So, a contract to marry a particular person, when that person is not
bound by corresponding obligation, will be cancelled : " it being con-
trar}' to the nature and design of marriage, which ought to proceed
from a free choice, and not from any compulsion:" Key v. Bradshaw,
2 Yern. 102 ; and see Woodhouse v. Shepley, 2 Atk. 535 ; *Lowe
[*230] ^_ pggfs, 4 Burr. 2225 ;~ Cock v. Richards, 10 Ves. 429 ; Hartley
v. Rice, 10 East. 22. See Dig. Lib. xxxv., tit. 1, 1. 62, 63, 64.

A contract, however, by which persons are mutually bound to marry
each other will be valid at law. See Cock v. Richards, 10 Ves. 438,
439 ; and Atkins v. Farr, 1 Atk. 28 ; S. C, 2 Eq. Ca. Ab. 241 ; but a
bond under a penaltj- to marry a particular person, if given in fraud of
parents or persons in loco parentis will be set aside in equity : Wood-
house V. Shepley, 2 Atk. 535.

A covenant to pay a woman a sum of money as long as she continues
sole and unmarried is not illegal : Gibson v. Dickie, 3 M. & S. 463.

But although the contract may be mutual and valid at law, a Court
of equity will relieve against it, if it be a fraud upon parents, or per-
sons in loco parentis, from whom expectations are entertained. This
was much discussed by Lord Hardwicke, in the important case of
Woodhouse v. Shepley, 2 Atk. 535, where it seems that the defendant,
a tailor by trade, and entitled to a small real estate of about lit. per
annum, in the year 1730 made his addresses to the daughter of a man
who was esteemed in the neighbourhood to be a person of substance ;
the courtship had been carried on for some time before it came to the
father's knowledge, who, as soon as he was acquainted with it, declared
a great dislike to the match, and forbid his daughter giving the suitor
any encouragement ; notwithstanding which, the courtship was carried
on in a clandestine manner till January, 1'782, when they gave each
other mutual bonds in a penalty of 600/., to marry each otlaer thirteen
months after the decease of the father. Upon the death of the father,
in 1136, a bill being filed by the daughter. Lord Hardwicke, upon the
whole circumstances taken together, but principally by the encourage-
ment which a different decision might give to disobedience, and fraud
on parents, decreed the bond given by the daughter to be cancelled.
" The points," said his Lordship, " on which I found my judgment, are
these : that bonds of this sort, where parents are living, are liable to
great fraud and abuse ; that, to decree in favour of such a bond,/WOuld

SCOTT V. TYLBR.

495

be a great encouragement to persons to lie upon the catch to procure
unequal marriages against the consent of parents ; and though they dare
not solemnise the marriage in the lifetime of the parent, but only engage
the affection, and draw the unfortunate person into a bond to forfeit
their whole fortune, as is the case here, yet it is of very dangerous con-
sequence, and tends to bring great misfortunes upon families.

" Another principal ground of my opinion is, that this tends to en-
courage disobedience to parents, and indeed is a fraud and imposition
*on the parent, though there is no actual fraud as between the

. r*23n

parties. In this case she lived with her father, and was depend- ^ J
ent on him for her portion, and he considered her as a child to be ad-
vanced ; and though a parent has no power by law to prevent the mar-
riage of his child, j'et it is expected that she should take his consent
and approbation ; and by the laws of some countries that is made
necessary. It is, therefore, a fraud on the father, who thinks his child
has submitted to his opinion of the match, and in that opinion makes
a provision for her, to advance her in marriage, which, had he known
of the bond, he would not have done, or might have done in such a
manner as would have prevented the marriage ; it is, therefore, in fraud
of the father's right of disposing of his fortune among his children,
according to their deserts, and may be compared to the cases of bonds
given before marriage to return a part of the portion ; for there is no
fraud in those cases between the contracting parties, but on the parents
or friends of one of them, who are deceived, by settling lands equal to
the portion that appears to be given ; and for such reason such bonds
have been set aside. Another ground of relief is the penalty ; for this
differs greatly in the reasonableness of it from executory promises,
where the jury can consider the whole case, and whether the party has
been unwarily drawn into such a contract or not, and the change of cir-
cumstances since the execution, and give damages accordingly; and
though it has been truly said, that a great alteration of circumstances
or character would be a ground of relief here, yet that cannot be offered
at law against the penalty, and bonds tend in themselves to prevent
such circumstances from beiAg properly considered ; bonds of this sort,
therefore, deserve less favour upon this account, though perhaps that
alone would not be sufficient to set them aside. As to the cases cited,
none of them cam^e up to this: Key v. Bradshaw (2 Vern. 102). The
reason of that case was the inequality of circumstances, and the party
being a servant, and the danger of admitting such transactions into
families. Baker v. White (2 Vern. 215), went upon the general re-
straint of marriage."

In another respect, our Courts have very properly not followed the
civil law, by which proxenetse, or matchmakers, were allowed to stipu-
late for a reward not exceeding a certain amount, for promoting mar-
riages ; for it has been held in equity, from a very early period, that

496 CONDITIONS IN RESTRAINT OF MARRIAGE.

all contracts or agreenaents for promoting marriages for reward (usually
termed marriage brokage contracts) are utterly void, upon the princi-
ple, that every contract relating to marriage ought to be free and open,
whereas marriage brokage'contracts necessarily tend to a deceit on one
*party to the marriage, or to the parents or friends: Roberts v.
[*232] ^Q^g,,^g^ 3 p_ -^r^jg, ^g . Chesterfield v. Janssen, 2 Ves. 156 I

ante, Vol. 1, p. 586.

Nor does the Court interpose for the particular damage done to the
parly only, but likewise from a public consideration, marriage greatly
concerning the public. Per Lord Talbot, in Law v. Law, Ca. t. Talb
142.

A leading case upon this subject is Hall v. Thynne, Show. P. 0. 76.
There Thynne, having an intention to make his addresses to Lady
Ogle, gave a bond of lOOOL penalty, to pay 500Z. ten days after his
marriage to one Potter, who assisted in promoting the marriage, which
afterwards took effect. After the death of Th3'nne, Potter brought an
action upon the bond against the executors, and proving the marriage,
recovered a verdict for the 1000?. Thereupon the executors filed a bill
in chancery, for relief, as the bond was given for an unlawful considera-
tion. Upon hearing the cause at the Rolls, Sir John Trevor, M. R.,
decreed the bond to be delivered up, and satisfaction to be acknowl-
edged upon the judgment: this decree being reversed by Lord Keeper
Somers, the executors appealed to the House of Lords. It was argued,
on behalf of the appellants, that such bonds to matchmakers and pro-
curers of marriage were of dangerous consequence, and tended to be-
traying, and oftentimes to the ruin, of persons of quality and fortune.
That, if the use of such securities and contracts should be allowed and
countenanced, they might prove the occasion of many unhappy mar-
riages, to the prejudice and discomfort of the best of families. That
such bonds and securities had always been discountenanced, and relief
in equity given against them, even so long since as the Lord Coventry's
time, and long before, and particularly in the case of Arundel v. Tre-
villian, 4 Feb. II Car. 1, (1 Ch. Rep. 81)'; and that marriage ought to
be procured and promoted by the mediation of friends and relations,
and not of hirelings. That, if such bonds were not vacated, when ques-
tioned in a Court of equity, it would be an evil example to executors,
trustees, guardians, servants, and other people having the care of chil-
dren ; and therefore it was prayed that the decree of the Lord Keeper
might be reversed, and it was reversed accordingly : S. C, 1 Eq. Ca.
Ab. 89, pi. 3 ; 3 P. Wms. "76 ; 3 Lev. 414. The vice of such a considera-
tion is now, it seems, pleadable at law : Collins v. Blantern, 2 Wils. 347.

And so far has the principle been carried, that Lord Redesdale de-
clared a bond void which was given as a remuneration to the obligee
for having assisted the obligor in affecting an elopement and marriage

SCOTT V. TYLER.

497

without the consent of the wife's friends, although it *was given p^„„„-|
voluntarily after marriage, and without any previous agreement L -^ J
for the same. " What," said his Lordship, "is the view which Courts
of justice take of transactions of this description ? Here was a young
lady taken from her friends, carried off to Scotland, and there married,
and a young man without fortune put into a situation to demand, by
force of his marital rights, possession of her property ; and a person
concerned in the transaction, which is iniquitous on the part of the hus-
band, is to increase the distress of the injured family, by obtaining from
the husband a reward for his assistance in it. Thus the wife is to be
injured even beyond the injury which she has received by the conduct
of her husband ; for, after marriage, everything the husband is bound
to pay is an injury to the wife. This is so considered in various cases
in Courts of justice. A father prevails on his son, previous to his mar-
riage, to enter into a voluntary bond ; the son does so, and the transac-
tion is concealed from the family of the wife. The son shall be relieved,
and why ? Because the bond is a fraud upon the marriage contract.
It may have been agreed between the father and the son, and perhaps
the father, in consequence of that agreement, settled more than he could
afford ; but if the effect is to alter the condition in which the wife would
otherwise be, such a bond is not suffered to have operation ; and this
not so much for the sake of the husband, as for the sake of the wife and
her family:" Williamson v. Gihon, 2 S. & L. 35Y, 362.

The.fact of the match being an equal or proper one, as in Hall v.
Potter, will not render a marriage brokage contract valid : Cole v. Gibr
son, 1 Ves. 506 ; and such contract being contrary to public policy, is
not capable of confirmation : Cole v. Gibson, 1 Ves. 503, 506, 50'7 :
Roberts v. Roberts, 3 P. Wms. '74, and Cox's note (1); and money paid
pursuant to such contract may be recovered back in equity : Smith v.
Bruning, 2 Yern. 392 ; Goldsmith v. Bruning, 1 Eq. Ca. Ab. 89, pi. 4.
Upon the same principle, every contract by which a parent or guar-
dian obtains any security for promoting or consenting to the marriage
of his child or ward, is void : Keat v. Allen, 2 Vern. 588 ; S. C, Preo.
Ch. 267. So in Buke of Hamilton v. Lord Mohun, 2 Vern. 652 ; Gilb.
Eq. Rep. 297, the mother being guardian on the marriage of her daugh-
ter insisted upon having from the intended husband a bond, in a
penalty that he would give her a release of all accounts as guardian,
within two years after the marriage. The bond was set aside, as the
case was in the nature and reason of marriage brokage bonds, and that
there was no difference between giving a bond for procuring r^nojn
a marriage, *and a bond to release part of what became due.

Upon similar grounds, all contracts upon a treaty for a marriage,

tending to deceive or mislead one of the parties to it, or their relatives,

will be held void. Thus a security given by a son without the privity

of his parents, who provided for him on his marriage, to return part of

VOL. II. — 32

498 CONDITIONS IN RESTRAINT OF MARRIAGE.

the portion of his wife is void : Turton v. Benson, 1 P. Wms. 496 ; and
see Kemp v. Coleman, Salk. 156. So where, upon a marriage, a settle-
ment was agreed to be made of certain property, by relations on each
side, and after the marriage one of the parties procured an underhand
agreement from the husband to defeat the settlement, it was set aside,
and the original agreement carried into effect : Peyton v. Bladwell, 1
Vern. 240 ; StribUehill v. Brett, 2 Vern. 445 ; 8. C, Prec. Ch. 165.

So, where a man, on the treaty for the marriage of his sister, let her
have money privately, in order that her portion might appear as large
as was insisted on by the intended husband, and she gave a bond to her
brother for the repayment of it, it was decreed to be delivered up :
Gale V. Lindo, 1 Tern. 4'J'5 ; and see Lamlee v. Hanman, 2 Vern. 499.
So, where a father, having, upon the marriage of his son, made a settle-
ment of an annuity upon the wife, in full for her juinture, and in lieu
of dower, the son, privately, without the knowledge of his intended
wife or her father, gave a bond to indemnify his father against the an-
nuity'or rent-charge, it was held void by Sir W. Grant, M. E.., as a
fraud upon the faith of the marriage contract. " In what," said his
Honor, " does the fraud consist ? In affecting to put the party con-
tracting for marriage in one situation by the articles, and in putting
that party in another, and a worse situation, by a private agreement.
The parent, in this case, professes himself to settle the jointure. The
son, therefore, according to that, was to have no part of the burden
thrown upon his property ; but, by the private agreement, the burthen
is thrown altogether back upon the son. It is of no consequence that
the lady is equally, or more, secure ; for the contract proceeds upon
this, that he has found the means of providing for her without resorting
to his own fortune. Whereas, the effect of the private agreement is to
throw the burthen entirely upon his fortune ; by which he is to that
extent prevented from providing for his family, as he otherwise might.
This is just as much a fraud upon the marriage contract, as if, recei-ving
a fortune, he returns part of it. His capacity of providing for his
family is equally diminished in both cases :" Palmer v. Neave, 11 Ves.
165.

Relief will be granted in such transactions, although the party
l-^„„.-, *to the marriage seeking it be particeps criminis ; thus, in Bed-
man V. Bedman, 1 Vern. 343, upon a treaty of marriage be-
tween A. and the daughter of B., B. would not consent to the marriage,
because A. owed 200L to C. A.'s brother thereupon gave his bond to
secure the debt, and A.'s bond was cancelled ; A., however, without the
knowledge of B., but with the privity of his daughter, gave a counter-
bond to his brother. Upon A.'s death, it was held, that the wife, though
a party to the fraud, might set aside the bond ; and the Lord Chancel-
lor said, that if A. had been alive, and a party, he might also have been
relieved

SCOTT V. TYLER. 499

The principle upon wliicii this class of cases proceeds was much dis-
cussed in the leading case of Neville v. Wilkinson^ 1 Bro. C. C. 543.
There Mr. Neville, being about to marry, inquiry was made by the
lady's father to what extent he was indebted. Wilkinson, who was
applied to, at the desire of Neville concealed a demand which he had
against him ; after the marriage he attempted to recover it, and a bill
was filed by Mr. Neville to restrain him. Lord Tliurlow held, that
Wilkinson, having made a misrepresentation, a Court of equity must
hold him to it ; observing that the principle on which such cases had
been decided was, " that faith in such contracts was so essential to the
happiness both of the parents and children, that whoever treats fraudu-
lently on such an occasion, shall not only not gain, but even lose by it "
And see Scott v. SeoW, 1 Cox, 366 ; Shirley v. Ferrers, cited 11 Ves.
536 ; The Vauxhall Bridge Company v. The Earl of Spencer, Jac. 67.

But equity will not interfere if another equally innocent person
would thereby be injured. Thus, in Eoherts v. Roberts, 3 P. Wms. 65,
A. treated for the marriage of his son, and in the settlement on the son
there was a power reserved to the father to jointure any wife whom he
should marry in 200Z. per annum, he paying, or securing the payment,
of lOOOZ. to the son. The father, treating about marr3'ing a second
wife, the son, pursuant to an agreement with the second wife's relations,
released the lOOOZ., but at or soon after the marriage, took a new bond
from his father, without the privity of the second wife or her relations.
Upon a bill being filed by the father. Sir Joseph Jek3ll, M. R., refused
to set aside the bond given to the son, observing, that, whatever argu-
ments could be made use of in favour of the father's second wife or of
the father, to prove that he ought to be discharged of the bond for pay-
ment of the lOOOL, the very same arguments might be argued on behalf
of the son and his wife, to prove that it ought to be paid. Thus, sup-
posing it to be a hardship upon the father's second wife that her hus-
band should be forced *to pay this lOOOZ., in breach of the pub-

r*936l
lie and open agreement made by the son, was it not equally a ^ ^ -i

hardship upon the son's wife, and as much a violation of the open and

fair agreement made on her marriage, that the lOOOL should not be

paid upon the father's making a second jointure, the consequence of

which would be, that, as the agreement on the son's marriage was first,

it ought to have the preference ? Qui prior est in tempore, potior est

injure. See the remarks on this case in Lee v. Hayes, IT J. C. L. R.

(N. S.) 394.

As to settlements or contracts by a woman about to be married in
fraud of marital rights, see Countess of Strathnwre v. Bowes, ante Vol.
1, p. 406, and note.

As to Conditions annexed to Gifts for the purpose of effecting the
separation of Husband and Wife.} — Upon ijrinciples of public policj'- it
has been held, that where bequests are made to married women upon

500 CONDITIONS IN RESTRAINT OF MARRIAGE.

condition of their living separate from their husbands, the condition is
void, being considered pro non scripto, and the bequest will be good.
Thus, in the old case of Tennant v. Brail, Toth. 141, where a man be-
queathed a sum of money to his daughter " if she will be divorced from
her husband," it was held that the gift was good, though the condition
was void. So in the case of Brown v. Peck, 1 Eden's Rep. 130, where
a testator directed " that if his niece lived with her husband, his execu-
tors should pay her 2Z. per month, and no more ; but if she lived from
him, and with her mother, then they should allow her bl. per month."
It was held by Lord Keeper Henley, that the niece was entitled to the
monthly payment of bl. ; and his Lordship thought " that the condition
annexed, being impossible at the time of imposing it, and contra bonos
mores, the legacy was simple and pure."

The same principle was acted upon vn the recent case of Wren v.
Bradley, 2 De G. & Sm. 39 : there a testator bequeathed an annuity to
his daughter, a married woman, " in case she should be living apart
from her husband, and should continue so to do " during the life of his
widow, with a direction that if at any time the annuitant should cohabit
with her husband, the annuity should cease. By the same will, he be-
queathed a share in the residue, upon trust to pay the income to the
same daughter during such time as she should continue to live apart
from her said husband ; but should she at anjr time cohabit with him,
the testator directed that during such time the income should be paid
between other legatees. The will also contained a trust for children of
the daughter by any other husband. At the date of the will the daugh-
ter and her husband were living ayjart ; but before and at *the
■- -J date of the testator's death they were reconciled and living to-
gether, and so continued to live. It was held by Sir J. L. Knight
Bruce, V. C, that the daughter was entitled to the bequests. " It is im-
possible," said his Honor, " to read the will without perceiving that the
testator's wish and object were to obstruct a reconciliation, and prevent
the wife from living with her husband ; and that, by that wish, by that
object, its provisions to her were influenced and directed. The weight
of authority, and the principles of the civil law, as far as I consider
them applicable, seems to me to render a decision in this case in the
daughter's favour consistent at once with technical equity and moral
justice.''

This principle is not applicable where the bequest is of such a nature
as not to influence the conduct of the husband and wife, and the be-
quest to the husband or wife living apart from each other is to take
effect immediately on the death of the testator. See Shewell v. Dwar-
ris, Johns. 172 : in that case a testatrix made a bequest of a moiety of
her residuary personal estate to her nephew, provided and on the ex
press condition that he should be residing with his then present wife,
if she should be living at the lime of the testatrix's decease ; but in case

SCOTT V. TYLER.

501

they should not at that time be living together as man and wife, then
(subject as aforesaid) she gave and bequeathed one half of such moiety
of the said residue unto the wife absolutely, and the other half part
thereof to the husband. It was held bj^ Sir W. Page Wood, V. C, that
the bequest was good notwithstanding the rule which avoids gifts pro-
viding for a future separation. " The rule," said his Honor, " which
avoids gifts providing for a future separation between husband and wife
does not apply to a case like the present. Here the gift is by will, and
merely provides for either contingency, namely, that of the husband
and wife living together or separate at the moment when the will must
take effect, namely, at the death of the testatrix. The bequest cannot
influence their conduct, but takes eflfect immediately on the death, ac-
cording to the then state of facts."

As to separations effected between husband and wife by their mutual
consent, see the note to Stapilton v. StapiUon, post.

In determining the validity of a
condition there are two considera-
tions : What did the grantor in-
tend ; is his purpose one that the
law can approve ? It is a common
learning that the dominion result-
ing from ownership is not absolute,
but must be so exercised as not to
inflict needless injury on others.
For a like reason, one cannot in
conferring a right of property
stipulate that it shall be held or
used in a way harmful to the
community, or prejudicial to the
grantee. He cannot, for instance,
provide that the estate which he
conveys shall be inalienable, or
that it shall not be liable to the
demands of creditors, or that the
grantee shall reside on the land,
and not elsewhere ; see Maddox
V. Maddox, 11 Grattan, 804 ;
Newhirk v. Newkirk, 2 Caines,
345 ; 1 Smith's Leading Cases,
"721, 1 Am. ed. These remarks
apply to conditions in absolute
restraint of marriage. Whether
such a prohibition is beneficial or

injurious to the community as
checking the growth of population,
is a question about which judges
and political economists may differ ;
see The Commonwealth v. Stauf-
fer, 10 Barr, 350 ; but there is no
doubt that it may mar the happiness
of the person who is subjected to it.
If this were all, it might still be
enough to render such a condition
illegal, because societj' is concerned
in whatever affects the Individual.
But there is another consideration
of greater moment. To give the
means that facilitate maniage on
the one hand, and at the same time
provide that it shall not be con-
tracted on pain of forfeiture, is to
put the donee under a violent
temptation to reconcile interest
and inclination, by forming an
illicit connection. A stipulation
fvir the performance of an illegal
act is clearly void, and a stipula-
tion which operates as an induce-
ment to a course which the law
condemns is not less objectionable ;
see Dent v. Bennett, 5 Beavan, 539,

502 CONDITIONS IN RESTRAINT OF MARRIAGE.

544. The authorities accordingly
agree that a condition imposing an
absolute restraint on marriage
without sufficient cause, is invalid,
and the estate of the grantee abso-
lute ; see Waters v. Tazewell, 9
Maryland, 291; Maddoxv. Maddox,
11 Grattan, 804. It follows that
a limitation over on the breach of
such a condition will also fail. The
dicta in The Commonwealth v.
Stavffer, 10 Barr, 350, and Otis v.
Prince, 10 Gray, 582, may appear
to look the other way, but the
point can hardly be regarded as
having been before the court . in
either instance. In Otis v. Prince,
Thomas, J., seems to have thought
that an absolute prohibition of
marriage, though contrary to legal
policy as a condition, may be valid
in the form of a conditional limita-
tion ; but such a view is hardly
consistent with the opinion of
Lord Hardwicke, in Scott v. Tyler,
ante, 472, 4Y5.

The principle applies with as
much force to contracts inter
vivos, as to testamentary gifts ; see
Lowe V. Peers, 4 Burrow, 2225 ;
Phillips V. Medhury, T Conn. 568 ;
Waters v. Tazewell, 9 Maryland
291. In Waters v. Tazewell, a
provision in a marriage settlement,
that the husband should not con-
tract a second marriage, was ac-
cordingly held to be contrary to
legal policy and void. A like view
was taken in Harley v. Rice, 10
East. 22, of a wager that the de-
fendant would not marry within
six years.

Conditions against marriage are
also invalid where though not
absolute, they are in effect pro-

hibitory, or unduly limit the
opportunity for choice. In Mad-
dox V. MaddoT, 11 Grattan,
804, the testator bequeathed his
property to his daughter " dur-
ing her single life and forever, if
her conduct should be orderly and
she remain a member of Friends'
Society. Furthermore, I give and
bequeath all the remaining part of
my estate to my nearest relations
that may be living at my death,
and that shall be at the time mem-
bers of the Society of Friends."
The court held that the condition
infringed " the perfect, absolute
and nuqnalified freedom of reli-
gious opinion in matters of reli-
gion, which the civil institutions
of Virginia secured to all who
dwelt under them." It was not
less unreasonable in another par-
ticular, because the marriage of the
legatee to any one who was not a
Quaker, would lead to her expul-
sion from the Society of Friends,
and a consequent forfeiture of the
legacj'. Lee, J., said, " conditions
in restraint of marriage annexed
to gifts and legacies are allowed
when they are reasonable in them-
selves, and do not unduly restrict
a just and proper freedom of
choice. But where a condition is
in restraint of marriage generally,
it is deemed to be contrary to
public policj'', at war with sound
morality, and directly violative of
the true economy of social and
domestic life. Hence such a con-
dition will be held utterljr void.
In Elizabeth Castle^s Case, Law
Jurist. Dec. 1846, the A''ice Chan-
cellor declared in general terms
that limitations in restriction oi

SCOTT V. TYLER.

503

marriage were objectionable, and
in Long v. Dennis, i Burr. R.
2052, Lord Mansfield said, " con-
ditions in restraint of marriage
are odious, and are, therefore,
held to the utmost rigor and
strictness. They are contrary
to sound policy." Accordingly
even in those cases in which re-
straints of a partial character may
be imposed on marriage, as in re-
spect of time, place or person, they
must be such only as are just, fair
and reasonable, and where they are
of so rigid a character, or made so
dependent on peculiar circum-
stances, as to operate a virtual,
though not a positive restraint on
marriage, or unreasonably restrict
the party in the choice of mar-
riage they will be ineffectual and
utterly disregarded. Thus, a con-
dition in restraint of marriage ex-
cluding men of a particular pro-
fession has been held void ; 1 Equ.
Ca. Ab; 100. So a contract not
to marry within six years is void,
because it tends to discourage
marriage ; Hartly v. Rice, 10 East's
Rep. 22. So a covenant with a
woman not to marry any other
person, has been held not to be
binding ; Lowe v. Peers, 4 Burr.
R. 2225. So a condition annexed
to a legacy to a daughter forbid-
ding her to marry any man who
h^d not a clear unincumbered es-
tate in fee or freehold perpetual of
the yearly value of five hundred
pounds was declared by the Lord
Chancellor to be worthy of con-
demnation in every court of justice,
and it was held void as leading to
a probable prohibition of marriage.
And Judge Story lays it down

that restraints in respect of time,
place or person may be so framed
as to operate a virtual prohibition
upon marriage, or at least upon
its most important and valuable
objects, and he illustrates by a
condition that a child should not
marry till fifty years of age, or
should not marry any person in-
habiting in the same town, county
or state, or should not marry any
person that was a clergj'man, a phy-
sician or a lawyer, or any person
except of a particular trade or
employment, all of which he tells
us would be deemed mere evasions
of the law ; 1 Story Eq. Jur. 283.
In this he seems to be borne out
by the opinion of Lord Chancel-
lor Clare in Keily v. Monck, 3
Ridgway, Pari. R. 205." -

It is said in the English note
that '' where property is limited
to a person until marriage, and
upon marriage then over, the limi-
tation is good." It is not easy
to reconcile this conclusion with
the opinion of Lord Thurlow that
" gifts generally prohibiting mar-
riage are contrary to the common
weal and good order of society."
If such is the policy of the law
the testator obviously should not
be allowed to evade it by a change
in the form of the devise, which
does not vary the efl'ect. "Whether
the terms of the will are that the
bequest shall become void in the
event of marriage, or that it shall
go to a third person, the legatee
is equally compelled to choose be-
tween the loss of fortune and re-
maining single. The words which
avoid his interest may conse-
quently be rejected and eflTect

504 CONDITIONS IN RESTRAINT OF MARRIAGE.

given to the rest. The case is
substantially the same where
words of limitation are used as the
means of imposing a restraint
which the law will' not allow ; and
it would consequently appear a
bequest to one while he remains
unmarried, or during his residence
at a particular place, or so long
as he belongs to a certain religious
denomination, should be viewed as
absolute.

There is more diflSculty where
the restraint is put in the form of
a condition precedent, and it may '
be said, that if the terms on which
the legatee is to take are not ful-
filled, it must fail, whether they
are or are not contrary to the law.
Technically speaking, the argu-
ment may be sound ; but it would
seem to be as true of such a case as
it is of a gift until marriage, that a
settled policy of the law should
not be " put aside" by a " turn of
phrase." Lord Thurlow observed
in the principal case, that " if the
bequest had been to the daughter
at twenty-one or twenty-five, in
case she were then unmarried, she
could not have claimed the legacy
at any other time or in any other
case." He went on to say, that
the daughter having married at
eighteen, improvidently, and as it
appeared, against the anxious pro-
hibition of her mother, never came
under the description to which the
gift of £10,000 was attached. The
point actually determined, that
the daughter had forfeited the
legacy by marrying without her
mother's consent, is in entire ac-
cordance with the main current of
decision. In this respect, the con-

dition was not contrary to legal
policy, or unreasonable. We are
not, therefore, compelled to believe
that a restraint on marriage, wliich
would be invalid as a condition,
can be eflTectually imposed through
a designatio personse, which will
exclude the legatee if she enters
into the marriage state. The true
view seems to be, that where a
condition precedent is contrary to
legal policy, and inseparable from
the bequest, the gift will fail,
whether the condition is or is not
fulfilled. What thewisdomofthe
law deprecates, is an injurious
stress on the mind of the legatee
in a matter where choice ought to
be free. The principle may be
vindicated by holding the bequest
void, or by disregarding the condi-
tion ; and where the case admits of
it, the latter course should be pur-
sued '■'• utresmagisvaleat ; "Brown
V. Peck, 1 Eden, 140. There is,
nevertheless, a distinction in this
regard between '' real and per-
sonal estate. For, if the con-
dition regard real estate, and be in
general restraint of marriage, there,
although it is void, yet if there is
not a compliance with it, the es-
tate will never arise in the devisee,
but if it be a legacy of personal
estate, under like circumstances,
the legacy will be held good and
absolute as if no condition had
been annexed to it ; Story's Eq.
sect 289.

The principle is clearly stated in
Scott V. Tyler, ante, 4t2, in the fol-
lowing terms. " In amplification of
this law, it seems to have been well
settled in all times, that if, instead
of creating a condition absolutely

SCOTT V. TTLBR,

505

enjoining celibacy, or widowhood,
the same be referred to the ad-
vice or discretion of another, par-
ticularly an interested person, it is
deemed a fraud on the law, and
treated accordingly ; that is, the
condition so imposed is holden for
void."

" Upon the same principle, in fur-
ther amplification of the . law, all
distinction is abolished between
precedent and subsequent condi-
tions ; for it would be an easy eva-
sion of such a law, if a slight turn
of the phrase were allowed to put
it aside. It has rather, therefore,
been construed, that the condition
is performed by the marriage
which is the only lawful part of
the condition, or by asking the
consent ; for that also is a lawful
condition, and, for the rest, the
condition not being lawful, is hol-
den jiro non adjecta."

In Brown v. Peck, 1 Eden, 140,
the testator directed his executors
to pay his niece £5 per month if
she resided with her husband, and
£15 per month if she lived apart
from him, and with her mother.
The lord keeper said, that the con-
dition was contra bonos mores, and
the legacy pure and simple. The
legatee was consequently entitled
to the larger sum, although she
had not complied with the terms
prescribed. The principle is ob-
viously the same whether the ob-
ject of the donor is to prohibit
marriage, or to separate husband
and wife. But it seems that a
court cannot treat a devise of land
as absolute, although the condition
on which it is limited to take effect
contravenes the rules or policy of

the law. See Taylor v. Mason, 9
Wheaton, 350.

The rule was accurately stated
as follows in Maddox v. Maddox,
11 Grattan, 804, 816 : " It may be
said, however, that as the restric-
tion in the residuary clause is in
the nature of a condition prece-
dent, no estate can vest, if it be
not complied with, whether it be
valid or void. This is undoubt-
edly true in reference to devises
of real estate with a precedent con-
dition in restraint of marriage ; for
though void, yet if it be not com-
plied with, no estate arises in the
devisee. If it be a legacy of per-
sonal estate, however, under like
circumstances, the legacy will be
held good and absolute, as if no
condition whatsoever * had been
annexed to it. (1 Story's Eq. Jur.,
§ 289.) And there would be every
reason for applying the same doc-
trine to a restriction like that in
this case."

Where the restraint on marriage
is not absolute, or is designed for
a purpose that the law approves,
or regards with indifference, it may
be upheld on the general principle
that the power of disposition im-
plies the right to prescribe the
terms on which the gift shall be
enjoyed. A minor may conse-
quently be prohibited from marry-
ing without the consent of his
parents or guardian ; Collier v.
Slaughter, 20 Alabama, 263; or,
as it would seem, from entering
into the married state until he is
of full age. For, as such a re-
restraint merely postpones choice
until a period when it presumably
can be made to more advantag e

506 CONDITIONS IN RESTRAINT OP MARRIAG:

there is no reason why it should
not be enforced by the courts.

It has also been held, for rea-
sons which, though unlike, are not
less valid, that a gift to a widow
while site remains such, or on con-
dition of her not marrjnng, is not
contrary to any legal rule. If
such conditions are not always
beneficial, they may Serve a salu-
tary purpose, and this is a suffi-
cient reason for sufiering the will
of the testator to have its course.
The question may arise between
creating an express trust for the
nurture and education of children,
and leaving the estate to their
mother, whose maternal instincts
will probably render her the "best
trustee, if no one else has an equal
claim upon her heart. The donor
may, therefore, reasonably provide
that the property shall be hers
during widowhood, and go over in
the event of her taking another
husband. The right to impose
such a condition is,therefore, gen-
erally recognized by the courts ;
Little V. Bardwell, 21 Texas ;
Vance v. Campbell, 1 Dana, 229 ;
MoCullough^s Appeal, 2 Jones,
19Y ; Phillips v. Medhury, 7 Conn.
568; Chapin v. Marvin, 12 Wend.
538 ; Commonwealth v. Staujfer,
10 Barr, 350 ; Bannerman v. Wea-
ver, 8 Maryland, SIT ; Gough v.
Manning, 26 Id. 347 ; Neal v.
Ward, 3 Harris & McHenry, 93.

In Phillips V. Medbury, the
violation of such a proviso iu
a devise was accordingly held
to work a forfeiture, which the
heir might enforce by entry.
" it is insisted,'' said Daggett, J.,
" that limitations of this kind,

when introduced into a will, are
merely in terrorem, and shall not
work a forfeiture of the estate de-
vised. They are also compared to
bonds given not to marry, which
are always void on the ground of
public policj'. A bond not to
marry, or not to marry any one
except the obligee, is doubtless
void. Marriage should be free ;
should proceed from choice, not
from compulsion. This is a salu-
tary rule of the common law ;
Lowe V. Peers, 4 Burr. 2225.
Hence, also, all marriage brokage
contracts are discountenanced.
But declaring restraints upon
marriages in wills void, as made
in terrorem, is another and differ-
ent doctrine. It is not a doctrine
of the common law, but intro-
duced into the Court of Chancery
in England from the canon law.
As that court is considered as
possessing the power over legacies,
it has adopted the rule of the canon
law to a certain extent. It has
declared, for example, in many
cases where the devisor has im-
posed an unreasonable restraint
upon a young male or female, and
annexed it to a devise, that it
should be deemed in terrorem ;
and, therefore, that the devise
should, notwithstanding, take ef-
fect. But in all these cases, it is
admitted, that this power is not
given by the common law ; nor is
it ever exercised in relation to real
estate, but only as to personal es-
tate, which is in the case of lega-
cies, subject to the control of a
court of chancery. Nor is it ap-
plied to a widow. It would seem
very reasonable that a man leaving

SCOTT V. TYLER.

507

a widow with seven children, as is
the present case, should be permit-
ted to encourage her, by a suitable
provision in his will, to remain
single, and not subject his own
oflfepring to the probable evils of a
step-father to waste her substance,
and tliereby render her less able to
support and educate them. In-
deed, it entirely accords with rea-
son, as it appears to me, that she
should have an option to take such
provison, and remain unmarried,
or refuse it, and be thrown upon
the general prcfvision of the law —
her dower. Nor have I been able
to find any case, or any dictum of
any judge or chancellor, in oppo-
sition to these principles. In Amos
V. Horner, 1 Eq. Ca. Abr. 112, and
in Scott V. Tyler, 2 Bro. Can. Rep.
48T, 488, they are expressly recog
nized. In the latter case, Lord
Thurlow, after a very elaborate
discussion, by very able counsel,
in which all the cases are exam-
ined, declares the result to be, that
' a fconditiou that a widow shall
not marry, is not unlawful. An
annuity during her widowhood, a
condition to marry or not to marry
Titus, is good.' "

The better opinion seems to be,
that a condition that a widow shall
not take a second husband, can
only be imposed for the sake of the
offspring of the first marriage, and
will be invalid if she has no chil-
dren, or on their decease. The
point has not been determined, but
would seem to be a just inference
from the principle that an absolute
restraint of marriage is void unless
there is some sufficient cause.

It is an open question, whether

the prohibition of a second mar-
riage, which is confessedly good
in the case of a wife, can be im-
posed on a husband. In Waters;
V. Tazewell, 9 Maryland, 291, the
court seems to have thought that
it cannot ; but it is not easy to see
why such a distinction should be
made between the sexes. If a
widow may reasonably be required
to choose between remaining sole,
and relinquishing the estate which
she receives from her husband to
their children, a like condition may
with no less justice be imposed on
a widower.

To make a condition in restraint
of marriage effectual, it must not
only be consistent with legal pol-
icy, but such that the courts can
afford a remedy if it be not fulfilled.
It is an established rule which
seems to have been derived from
the civil through the canon law,
that a court of equity, or ecclesi-
astical court, will not enforce a
forfeiture. Where personal prop-
erty is bequeathed to one with a
proviso, that on the happening of a
particular event it shall go to an-
othel", the rule does not apply,
because the person who is to take
in the second place has an equal
claim to the aid of the court with
the first taker ; Gough v. Man-
ning, 26 Maryland, 34t, 361 ; Mit-
chell v. Mitchell, 29 Id. 581, 592.
But a condition that a bequest
shall fail if an act be done or
refrained from, without a limita-
tion over, will be regarded as
imposed for the • purpose of de-
terring the legatee, with a knowl-
edge that it will not be compulsory
on him. The rule is well settled

508 CONDITIONS IN RESTRAINT OF MARRIAGE.

and has been repeatedly applied
to bequests conditioned against
marriage ; M'llvain v. Githen, 3
Wharton, 584 ; Cornell v. Lovat,
11 Casey, 100, 104; Hoopes v.
Dundas, 10 Barr, lb ; Otis v.
Prince, 10 Gray, 582 ; Maddox v.
Maddox, 11 Grattan, 804 ; Parsons
V. Winslow, 6 Mass. 279. It is
not enough that the will contains
a general or residuary bequest,
there must be a distinct provision
that the legacy shall vest in a third
person on the breach of the condi-
tion ; M'lluain v. Oithen, 3 Whar-
ton, 581 ; Hoopes v. Dundas, 10
Barr, 15; Cornell v. Lovat, 11
Casey, 100, 104. In Maddox v.
Maddox, the court said "there is
no bequest over of the third thus
given to her in case of her breach
of the condition, and the condi-
tion therefore will be treated as
in terorem merely, and the legacy
becomes pure and absolute ; 1
Roper, Leg. Ch. 13, § 1, p. 654 ;
Garrett v. Pritty, 2 Vernon Rep.
293 ; Wheeler v. Bingham, 3 At-
kins R. 364 ; Lloyd v. Branton, 3
Meriv. R. 108, 111 ; nor will the
residuary clause be regarded as
equivalent to a bequest over. To
render the condition effectual, there
must be an express bequest over
on breach of the condition, or a
special direction that the forfeited
legacy shall fall into the residuum ;
Wheeler v. Bingham, 3 Atkyns,
364 ; Lloyd v. Branton, 3 Merivale,
108; Keely v. Monck, 3 Ridgway
P. C. 205, 252."

There is no such difficulty in
the case of real estate, because tlie
heir may always enter for condi-
tion broken, and a recovery may

then be had in ejectment in a court
of common law. A ccmdition
which consists with legal policy
may therefore be enforced, al-
though the estate is not given to
a third person in the event of
breach. It has accordingly been
held in numerous instances, that a
devise to a widow on condition
that she does not marry, is
valid although the will does not
say who is to take advantage
of the forfeiture ; The Common-
wealth V. Stauffer, 10 Barr, 350 ;
Cornell v. Lovat, 11 Casey, 100,
104.

In Cornell v. Lovat, 11 Casey,
100, 104, it was said to be " the
settled rule in Pennsylvania, that
where realty is devised with a con-
dition in restraint of future mar-
riage, effect will be given to the
condition b}' making the breach
of it work a forfeiture, whether
there is a limitation over to an-
other in that event or not."

In Otis V. Prince, 10 Gray, 582,
the court seems to have thought
that a limitation over is essential
to the validity of a condition in
restraint of marriage, although the
subject matter of the devise is
land. Thomas, J., said " the es-
tate is devised in trust to pay the
net income to the plaintiff so long
as he shall remain unmarried, and
in the event of his marriage, or
dying unmarried, to convey it to
his legal heirs."

" The condition is subsequent,
and the restraint upon the mar-
riage of the grandson without
limitation as to time or person.
It is therefore clearly against the
policy of the law and void, unless

SCOTT V. TYLER.

509

there is a valid gift over ; Parsons
V. Winslow, 6 Mass. 169 ; Lloyd v.
Branton, 3 Meriv. 108 ; Morley v.
Bennoldson, 2 Hare, 570 ; 1 Jar-
mon on Wills, 843 ; 1 Story on Eq.
280-288."

The trustees upon the marriage
are to convey the legal estate to
the heirs of the plaintifl'. It is
very familiar law that a devise to
the heirs of one living is void ;
Nemo est Heeres viventis, Shep.
Touehst. 415 ; 6 Cruise Digest, tit.
58, c. 10, 31.

There are exceptions to the rule
as well settled as the rule itself,
as where, in the case of a devise,
it is plain from the whole will that
the testator intended to use the
words heirs or legal heirs as words
of description or purchase. Upon
the examination of the will of Mr.
Otis, we iind no manifestation of
such purpose. Assuming that
there was no inadvertency or mis-
take in the drafting of this clause
there are no clear indications that
the words legal heirs were to be
used in any other than their ordi-
nary legal sense. The result is
that the equitable devise over is
void ; Heard v. Horton, 1 Denio,
165."

A gift over is not essential to
the validity of a condition prece-
, dent in restraint of marriage even
where the propertj' bequeathed is
personal. The law was so held in
Scott V. Tyler, ante, and again in
Collier v. Slaughter, 20 Alabama,
263, of the bequest of a legacy to
vest " on the legatee's arriving at
the age of twenty-one, or marrying
before that time with the approba-

tion of her guardian." The court
held that the condition was not
in terrorem, but an indispensable
requisite which must be complied
with in order to entitle the legatee,
and that the consent of her grand-
father was not sufficient, although
she had no guardian and both her
parents were dead.

The authorities agree that a gift
to a widow until she marries, or
durante viduitate, is valid, although
the testator has omitted to provide
who is to have the property when
her interest terminates. The prin-
ciple has been frequently enunci-
ated in the United States, and
applies whether the property in
question is real or personal. For
where the estate is only given un-
til the happening of a particular
event, and ceases when that occurs,
the court is not called on to en-
force a forfeiture ; Mitchell v.
Mitchell, 18 Maryland, 405 ; 29 Id.
581 ; Phillips v. Medbury, 1 Conn.
578 ; Vance v. Campbell, 1 Dana,
229; McCullough's Appeal, 2
Jones, 197; Beekmhn v. Hudson,
20 Wend. 53; Holtz's Estate, 2
Wright, 422; Cornell v. Lovat, 11
Casej', 100 ; Pringle v. Dunkley, 14
Smedes & Marshall, 16 ; Hughes v.
Boyd,^ Sneed, 512; Bennett y. Rob-
inson, 10 Watts, 348. In Bennett v.
Robinson, a devise of the profits
of land to the testator's wife so
long as she remained a widow, was
held to be determined by her mar-
riage. So the power conferred by
the appointment of the testator's
wife as the guardian of his minor
children durante viduitate, will fail
if she takes a second husband, al-

510 CONDITIONS IN KESTRAINT OF MARRIAGE.

though the will does not name any
one to take her pl&oe;' Holmes v.
Field, 12 Illinois, 424.

In Holtz^s Estate, the testator
gave his executors the sum of
$5,000, in trust to invest the same,
after the death of his wife, and
pay the interest " unto my daugh-
ter-in-law, Mary H. Holtz, wife of
my son Peter, if she shall be living
and the wife and widow of my son,
for her sole and separate use, upon
her own receipt, and for and dur-
ing all the term she shall continue
tiife wife or -widow of my son,"
with a limitation over for life to
another. The court held the fol-
lowing language in giving judg-
ment : " In this bequest no prior
estate or interest is given to Mrs.
Holtz for life or for any other pe-
riod to which a condition is ap-
pended. The interest of the fund
is directed in tlie first instance to
be paid to her for and during all
the term she shall continue the
■widow of testator's son. No es-
tate is to be defeated by her mar-
riage, for none is given. The
period of her marriage is fixed as
the limit at which the payment of
the interest is to cease as to her,
and then the same is given over
to another beneficiar3'. No other
expressions in the will indicate any
other intention. In case of the
marriage of the annuitant, the tes-
tator directs that the interest and
income of the trust fund shall be
paid to her daughter, if then liv-
ing, for and during the term of
her life ; and further, in case of
the termination of the interest
bequeathed as to the sum so held
in trust, the said sum is expressly

included in the residue of the es-
tate and bequeathed to the three
daughters of the testator. It ap-
pears, therefore, that the bequest
was a restricted one, with a limi-
tation over for life to another, at
its termination by marriage ; and
a further disposition of it if, by
the decease of the second cestui
que trust, the fund should come
into the residue of the estate.
Under no fair construction can
this be considered a bequest upon
a condition in terrorem."

In view of this distinction, it is
material to distinguish between a
limitation and a condition. In
Hoopes V. Dundas, 10 Barr, 75,
the testator bequeathed an annuity
to the widow of his deceased son
during the term of her natural life,
if she so long remained his widow
and unmarried, with a residuary
devise over of his estate. Gibson,
C. J., said that it was settled un-
der Mcllvain v. Githen, that " a
condition in restraint of marriage
is invalid where there is no be-
quest over, and the question be-
fore the court was a single one, is
this a condition or a limitation ?
The bequest was " the same in sub-
stance as if the testator had said I
give my daughter-in-law an an-
nuity for life, but if she marry
again it shall cease. The words
will bear no other interpretation,
for with little or no exception the
word "if" has always been held
to make a condition." It was said
to follow that as there was no gift
over, the consideration must be re-
garded as in terrorem, and the be-
quest absolute.

In Mitchell v. Mitchell, 18

SCOTT V. TYLER.

511

Maryland, 405, 29 Id. 581 ; the
terms of the bequest were " that if
the legatee should unite herself to
any religious sisterhood and con-
tinue therein for ten years, the
property devised in trust for her
should devolve on the testator's
other children," and it was lield to
create a conditional limitation
which a court of equity would en-
force on the happening of the
event provided for in the will.

The law will not sanction any
stipulation or proviso which has a
direct or necessary tendency to
sever husband and wife, or to pre-
vent a reconciliation where they
are already separated. A condi-
tion in a gift to a married woman
that she shall leave her husband,
or shall not return to him, is con-
sequently invalid, and the princi-
ple applies where the illegal end is
sought to be attained through a
limitation, ante, 500. But the mere
circumstance that a man and wife
live apart, will not preclude either
of them from being the recijnent
of a bequest or legacy, although
the incidental effect may be to
prolong the difference bj^ affording
the means of a separate mainte-
nance.

The question was considered in
Cooper V. Eemaeyi, 5 Johnson Ch.
459, on grounds that are not alto-
gether satisfactory. The testator
bequeathed to his daughter " dur-
ing her separation from her hus-
band $1,000 a year, to be paid
out of his real estate." The daugh-
ter was living separate from her
husband when the will was execu-
ted ; but they afterwards came to-
gether and were cohabiting as

man and wife when the testator
died. Some three months after-
wards they again sepaiated aid
continued to live apart. Chancel-
lor Kent said, " there is a wide
difference between a bequest to a
daughter during her separation
from her husband, when the sepa-
ration is then actually existing
without being procured by the tes-
tator, and a legacy to her if she
lives apart from her husband, for
that would be to hold out a temp-
tation to a separation, which would
be contra honos mores. The legacy
would be simple and pure in the
latter case, according to the deci-
sion of Lord Northington in
Brown v. Peck, 1 Eden, 140, but
in the former cas,e, the legacy de-
pends upon the fact of a separation,
which has already taken place,
and is in that aspect, a kind and
charitable provision." It was held
to follow that if as these considera-
tions indicated, the condition did
not conflict with the policy of the
law in the first instance, nothing
that occurred afterwards could
render it illegal. And as the lega-
tee was not within the terms of the
condition when the will took effect
by the death of the testator, the
legacy failed, and was not revived
by the subsequent separation.

Marriage is a valuable consider-
ation, and will sustain a promise
by either of the parties to make a
settlement on the other, or by a
third person to provide adequately
for one or both of them ; and in
Donnellan v. Lennox, 6 Dana, 89,
the court upheld an agreement to
compromise a suit in consideration
of a promise of marriage. But a

512 COMMISSIONS OF TRUSTEES AND EXECUTORS.

promise to compensate a third either party, are yet void, because

person for his services as a broker they are a fraud on third persons,

or agent in procuring a marriage, and a public mischief, as they have

is contrary to the policy of the a tendencj' to cause matrimony to

law, and invalid. See Boynton be contracted on mistaken princi-

V. Hubbard, 1 Mass. 168. " Mar- pies, and without the advice of

riage brokage bonds," said Par- friends, and tliey are relieved

sons, C. J., in Boynton V. Hubbard, against as a general mischief, for

" which are not fraudulent on the sake of the public."

[*238] *ROBINSON' v. PETT.'

DE TERM. PASCHCE, 1734.

REPOETBD 3 P. WMS. 132.

No Allowance to an Executor or Trustee for his Care and
Trouble. — The Court never allows an executor or trustee for his
time and trouble, especially where there is an express legacy for his
pains ; neither will it alter the case, that the executor renounces, and
yet is assisting in the executorship ; nor even, though it appears that
the executor has deserved more, and benefited the trust, to the prejv^
dice of his own affairs.

The question was, wliether an executor who had renounced,
but had yet been assisting in the trust, according to the request
of the testator, should have any additional consideration, when
he had an express legacy for such his assistance.

Robert Pett, a considerable draper and mercer at Aspallstone-
ham, in Suftblk, made his will in October, 1710, whereby he de-
vised the surplus of his real and personal estate to his grandchil-
dren, and appointed the defendant Pett, who had been first his
servant, and afterwards his journeyman, together with one Larkin,
executors, giving to each of his executors IQOl. for their trouble
about the execution of their trust, and directing, that if the de-
fendant Larkin should refuse the executorship, he should lose his
legacy ; but if the defendant Pett should refuse to take on him
the executorship, yet that he should have his lOOi. paid him, pro-
viding he would be aiding and assisting in the management and
execution of the trusts.

Larkin only proved the will, and the defendant Pett renounced
the executorship.

On a bill brought by the plaintiiFs, the grandchildren,

■ 8. 0., 2 Eq. Ca. Ab. 454, pi. 10.

EOBINSON V. PBTT, 513

*against the executors, for an account of the personal es- r*239i
tate, the defendant Pett was allowed his 100/'. legacy ; '- -'
but he likewise insisted to have 400/. more for his extraordinary
pains, trouble, and expense of time in and about tjje aflairs of the
testator, particularly for having made up some very intricate ac-
counts, and got in some desperate debts ; and there was some
proof that the defendant Pett had greatly benefited the testator's
estate, and prejudiced his own (he himself being a mercer), and
that he had neglected his own trade, and lost some customers
while he was looking after the concerns of his testator.

This cause was first heard before the Master of the Polls, Sir
Joseph Jekyll, who declared it to be a rule so settled, that a trustee
or executor in trust should not have any allowance for his care and trou-
ble, unless there were some particular words in the will for that pur-
pose,^ that he could not break into it, and that there was the
less occasion to do so in the present case, as the testator had here
given the defendant an express legacy of 100/. for his care and
trouble ; so that the testator himself had set an estimate and
value upon it of 100/, which, since the defendant had accepted,
the Court would not increase.

From this decree there was an appeal to the Lord Chancellor,
before whom it was insisted by the Attorney and Solicitor-G-en-
eral (who had both signed the petition of appeal), that the de-
fendant Pett having renounced the executorship, and the other
executor only having proved the will, the defendant Pett was as a
stranger ; and in regard that he appeared to have done these emi-
nent services to the estate so much to his own prejudice, he was
entitled to a quantum meruit in the same manner as if he had not
been an executor ; so that this was out of the common case, and
to be considered as if the defendant had been employed in the
nature of a bailift', &c. ; for which reason it was prayed that the
Master might be directed to have regard to, and make some al-
lowance for, the great trouble and successful pains taken by the
defendant, in relation to the aftairs of the testator.

*LoED Chancellor Talbot. — It is an established rule, r^o^n-,
that a trustee, executor, or administrator, shall have no allow- '- -I
ancejor his care and trouble ; the reason of which seems to be,/or
that, on these fretences, if allowed, the trust estate might be loaded, and
rendered of Hide value f besides the great difficulty there might
be in settling and adjusting the quantum of such allowance, espe-
cially as one man's time may be more valuable than that of
another ; and there can be no hardship in this I'espect upon any
trustee, who may choose whether he will accept the trust or not.

The defendant's renouncing the executorship is not material,
because he is still at liberty, whenever he pleases, to accept the
executorship ; otherwise, if both the executors had renounced,

1 Bee Ellison v. Airey, 1 Yes. 115 ; Willis v. Kibble, 1 Beav. 560.

2 See Moore v. Frowd, 3 My. & Cr. 50, where Lord Cottenham approves of
this reason,

VOL. II. — 33

514 COMMISSIONS OF TRUSTEES AND EXECUTOES.

and the ordinary had thereupon granted administration.' And
if this were to make any difference, it would be an art practised
by executors to get themselves out of this rule, which 1 take to
be a reasonable one, and to have long prevailed. But further, in
the present case, the testator has by his will expressly directed
what should be the defendant's recompense for his trouble, in
case of his refusing the executorship ; viz., that he still should
have the 100^. legacy, to which I can make no addition. How-
ever, it being a hard case, let the defendant take back the de-
posit.^

There is no rule better established than that stated by Lord Talbot
in the principal case, viz., that a trustee^ executor, or administrator
shall have no allowance for his care and trouble. It proceeds upon the
well-known principle, almost invariably acted upon *by Courts
' -■ of equity, that a trustee shall not profit by his trust. " The

reason of the rule," observes Lord Cottenham, " is well stated in Ilob-
inson v. Fett : ' The reason seems to be, for that, on these pretences,
if allowed, the trust estate might be loaded and rendered of little
value.' It is not because the trust estate is in any particular case
charged with more than it might otherwise have to bear, but that the
principle, if allowed, would lead to such consequences in general : "
Moore v. Frowd, 3 My. & Cr. 50 ; and see New v. Jones, 1 Hall & T.
634 ; Hamilton v. Wright, 9 C. & F. 111.

And so strict is the rule, that, although the trustee or executor may,
by the direction of the author of the trusts, have carried on a trade or
business at a great sacrifice of time, he will be allowed nothing as a
compensation for his personal trouble or loss of time. Thus, in Brock-
sopp V. Barnes, 5 Madd. 90, the testator directed certain businesses to
be carried on by his trustees and executors, and directed several oner-
ous trusts to be performed by his trustees, but gave no legacies or re-

' Where there are two executors, and one renounces, he is still at liberty io
acce, t (if the executorship, iiecus where both renounce and administr^itiou is
granted; though ii this mutter llie common lawyers differ from the civilians;
the latter holding that a renunciation once made, though only by one of them,
is peremiJtory. See Howes and Downes v. Lord I'etre, Salk. 321 ; The King
V. Simpbon, '6 Burr. 1463. As to the necessity of an executor intending to act
before he can claim a legacy, see Harrison v. Rowley, 4 Ves. 312, 216 ; Harford
V. Browning, 1 Cox, fcOa ;' Reed v. Devaynfes, 2 Cox, 285, 3 Bro. C. C. 95;
Brydges v. Wotton, 1 V. & B. 134 ; Stackpoole v. Howell, 13 Ves. 417 ; Dix v.
Reed, I Sim. and Stu. 287 ; Calvert v. Sebbou, 4 Beav. 222 ; Wildes v. Davies,
1 Sm. & 6. 485; Hanbury v. Spooner, 5 Beav. 630; Compton v. Bloxbara, 2
Coll. 201 ; Piggott v. Green, 6 Sim. 72 ; Hollingsworth v. Grassett, 15 Sim. 52 ;
Cockerell v. Barber, 2 Russ. 685 ; Angerman v. Foid, 2S) Beav. 349 ; Lewis v.
Matthews, 8 L R. Eq. 277 ; Lewis v. Lawrence, 8 L. R. Eq. 345 ; Bubb v.
"ielverton, 13 L. R. Eq. 131.

2 Reg. Lib. B. 1732, fol. 322, 1733, fol. 333, by which it appears the Master of
the Rolls directed generally, that all parties should have just allowances, and
on appeal by the deiendant Pett, this decree was affirmed, but the particular
gravamen is not stated.

EOBINSONV. PBTT. 515

ward to them for their trouble. Upon a petition being presented by
one of them to ascertain what would be proper to be allowed to him as
a compensation or .recompense for his loss of time, personal trouble,
and expense in the management and settlement of the testator's affairs.
Sir John Leach, V. C, said, " The trustee is, of course, entitled to all
reasonable expenses which he may have incurred in the conduct of the
trust, and requires no order for that purpose ; but the general rule must
be applied to him, that a trustee is not entitled to compensation for per-
sonal trouble and loss of time." And see Barrett v. Hartley, 2 L. R.
Eq. 182.

The rule is also applicable to an executor carrying on the business of
his deceased partner: Burden v. Burden, 2 V. & B. ItO; Stocken v.
Dawson, 6 Beav. 311 ; and an executor or trustee will not be entitled to
make a profit out of his trust by his professional business. Thus, a
factor acting as executor, is not so entitled (Scattergood v. Harrison,
Mos. 128) ; nor is a commission agent (Sheriff v. Axe, 4 Russ. 33).
So, an executor and trustee, acting as auctioneer in the sale of the
trust property, cannot charge for commission, (Kirkman v. Booth, 11
Beav. 273 ;) nor can an attorney or solicitor charge his cestui que trust,
save for expenses and costs out of pocket (New v. Jones, 1 Hall & T.
632 ; Bainbrigge v. Blair, 8 Beav. 588 ; 2hdd v. Wilson, 9 Beav. 486 ;
Gomley v. Wood, 3 J. & L. 102 ; Pollard v. Boyle, 1 Drew. & Sm.
319); nor can his partner (Collins v. Cary, 2 Beav. 129; Christophers
T. White, 10 Beav. 523 ; but see Clack v. Garlon, 30 L. J. N. S. Ch.
639) ; but *the costs of his town agent in a cause will be r^cov n-i
allowed (Burge v. Brutton, 2 Hare, 313) ; and under peculiar
circumstances an inquiry may be directed to give some remuneration
or compensation to a solicitor for his loss of time and trouble (Marshall
Y. HoUowell, 2 Swanst. 453 ; Bainbrigge v. Blair, 8 Beav. 595).

Upon the same principle an assignee of a bankrupt, who had acted
as solicitor to the fiat, although allowed to charge for his clerk's time
employed in the business of the bankruptcy as costs out of pocket,
was not allowed any profit thereupon : £]x parte Newton, 3 De G. &
Sm. 584.

A chairman or director of a Railway Company stands in a fiduciary
relation towards the Company, and will not, as a general rule, be
allowed to derive any profit beyond his salary from his office. Thus,
in the case of The Luxembourg Railway Company v. Sir William
Magnay, 25 Beav. 586, a railway company furnished a director with a
large sum of money to enable him to purchase the "concession" of
another line. He purchased it, as it turned out, from himself, he being
the concealed owner of it. It was held by Sir John Romilly, M. R.)
that the transaction could not stand. And see Bensonv. Heathorn, 1 Y.
& Cv C. C. 326 ; Maxwell v. The Port Tenant, &c.. Company, 24 Beav.
495 ; The North Midland Railway Company v. Hudson, 25 Beav. 593,

516 COMMISSIONS OF T E U S T E E S AND EXECUTORS.

595, cited ; Bluck v. Mallalue, 21 Beav. 398 ; Gaskill v. Chambers, 26
Beav. 360 ; Hodkinson v. - The National Live Stock Insurance Com-
pany, 26 Beav. 473 ; 4 De G. & Jo. 422 ; Inre The Anglo-Greek Steam
Navigation and Trading Company (Limited), 35 Beav. 399, 410 ; Xim-
ber V. Barhor, 20 W. R. (M. R.) 602.

A company, however, may in their articles of association, stipulate
that they will not avail themselves of the benefit of the general rule.
Thus in the Imperial Mercantile Credit Association v. Coleman, 6 L.
■R. Ch. App. 558, by the articles of association of a financial company,
it was provided that a director should vacate his office, if he partici-
pated in the profits of any work done for the company, without declar-
ing his interest at a meeting of directors ; and that no director so inter-
ested should vote at any meeting or on any committee of the directors,
or on any question relating to such contracts or work. A director hav-
ing undertaken to obtain money for certain railwaj- debentures at 5?.
per cent, commission, oifered them to the company at 1^1. per cent,
commission. The offer came before a committee of directors, of which
he was not a member, and they recommended the Board to accept the
offer. The recommendation came before a board meeting of the direc-
r*9iq"l t°^^i ^t which the director making the *oflfer was present. He
stated that he was interested in the matter, and proposed to
retire, but was told by the chairman that it was unnecessary, and the
oSev was accepted hj the Board. The director appeared to have pre-
viously given full information to the two managers of the company as
to his interest in the debentures. It was held by Lord Hatherly, L. C,
reversing the decision of Sir R. Malins, V. C, that according to the
articles of association, it was contemplated that a director might have
an interest in business brought by him to the companj' ; and that under
the circumstances, this director could retain the difference between the
\^l. per cent, and the 5L per cent, commission.

As a mortgagee with a power of sale stands in a fiduciarj'' relation
with regard to the mortgagor, he will not be allowed, either alone or
conjointly with his partner in any business, to derive any profit from
the sale. Thus, in the recent case of Malthison v. Clarke, 3 Drew, 3,
a mortgagee with power of sale employed the firm of auctioneers, of
which he was a member, to sell the mortgaged property for him. It
was held by Sir R. T. Kindersley, V. C, that they were not entitled to
anj' commission. So in another recent case, where B., a solicitor, one
of the mortgagees with a power of sale, arranged with another solici-
tor to "act as his agent" in the matter of the mortgage on agency
terms. It was held by Sir J. Romillj^, M. R., that a sum of money
paid to B. as his share of the profits, inured for the benefit of the per-
sons entitled to the equity of redemption. In re Taylor, 18 Beav. 165;
and see Broad v. Selfe, 11 W. R. (M. R.) 1036.

A general release, where the cestui que trust has been assisted by

EOBINSON V. PETT. 517

an independent solicitor, may prevent a cestui que trust from insisting
upon his riglit to have a settled account opened against a solicitor
being a trustee, although he may have charged for professional ser-
vices: Stanes v. Parker, 9 Beav. 385 ; In re Sherwood, 3 Beav. 338,
341. Secus, if- he had not such assistance: Todd v. Wilson, 9 Beav.
486. And see Barrett v. Hartley, 2 L. R. Eq. 789.

Although it is clear that a solicitor made party to a cause as trustee,
who either acts for himself or employs his partner to do so, will be
allowed his costs out of pocket only {Lyon v. Baker, 5 De G. & Sm.
622 ; Pollard v. Doyle, 1 Drew. & Sm. 319), it was upon no very intel-
ligible principle held by Lord Cottenliam, in Cradock v. Piper (1 Hall
& T. 617, 628 ; 1 Mac. & G. 664 , affirming the decision of Sir L. Shad-
well, V. C, 17 Sim. 41), that the circumstance of a solicitor being a
trustee will not prevent him from receiving his usual costs, where
he acts as solicitor in a suit for any of the cestuis que trust, or
*where he acts for himself and Ms co-trustees, or cestuis que r^ni,-i
trust jointly, provided the costs are not increased by his being
one of the parties for whom such joint appearance is made. And see
Fraser v. Palmer, 4 Y. & C. Bxch. Ca. 517; but see Bainhrigge v.
Blair, 8 Beav. 588 ; and Manson v. Baillie, 2 Maeq. 80, where Lord
Cranworth, C, observed, '' that he was inclined to think that the true
principle was considerably trenched upon by Lord Cottenham, when
he said that a solicitor might act as a solicitor for his co-trustee in, and
be allowed j)rofessional charges, as he apprehended that the true prin-
ciple is that each trustee should be a check and control on each and all
of the co-trustees, a principle which was placed in danger by the allow-
ance of a pecuniary profit (p. 82). Lord Brougham also disapproved
of the decision of Cradock v. Piper, and expressed great doubts as to
the soundness of that decision to the length to which it goes " (p. 91).

Certainly there is no inclination to extend the doctrine laid down by
Lord Cottenham in Cradock v. Piper, for it has been decided that it
does not apply to the case of a solicitor being a trustee and acting for
himself and co-trustee in the administration of the trust estate out of
Court: Lincoln v. Windsor, 9 Hare, 158; Broughton v. Broughton, 2
Sm. & Giff. 422 ; 5 De G. Mac. & G. 160.

Where a solicitor who is a trustee is a defendant as a trustee, and is
held to be entitled to his costs, the course of the Court is to direct
them to be taxed as between solicitor arid client (York y. Brown, 1
Coll. 260). In a recent case, where a mortgagee had acted as his own
solicitor in a suit in defence of his own title. Sir R. T. Kindersley, Y.
C, refused to allow him, as against a second mortgagee, any other
costs except his costs out of pocket : Sclater v. Cottam, 3 Jur. N. S. 630.

A solicitor who is trustee, is not obliged to account for any profits,
which he may have made professionally, by his charges against a mort-
gagor, upon the security of whose property he advanced monies be-

518 COMMISSIONS OF TRUSTEES AND EXECUTORS.

longing to the trust. Thus, in Whitney v. Smith, 4 L. R. Ch. App.
513, a trustee, who was a solicitor, sold out stock forming part of the
trust estate, and invested it on mortgage. He acted in the transaction
as solicitor for the mortgagor as well as for the trust estate, but made
no charge against the trust estate for his services, being paid for them
by the mortgagor. He also derived some profit as a solicitor in conse-
quence of the employment of part of the mortgaged estates for build-
ing purposes. It was held by the Lords Justices of the Court of Appeal,
that the plaintiff could not charge him with the profit thus made, as
r*94.Fii having been made by the employment of the trust *estate in his
business. " No doubt," said Lord Justice Giffard, " if trust
money is laid out in such a thing as the purchase of cotton, or if it is
lent out upon bills of exchange, or if it is put into a business and
actually turned over and used in the business, the cestuis que trust are
entitled, if they thinlc fit, to an account of the profits, and to have the
profits. But what lias taken place here is this — the money has been
lent by the trustee upon certain securities which, probably, were not
securities justified by the trust. He happened to be a solicitor, and I
liave no doubt that the loan of that money tended to bring him custom
in his profession of a solicitor. But no case has gone the length of
saying, that because a loan of that sort made by a trustee who happens
to be a professional man, tends to bring him custom in that profession,
he charging the estate nothing for his work and labour, it not being in
any sense the produce of the trust estate — no case has gone the length
of saying that the cestuis que trust are entitled to the profits of that.
I think it very unjust that they should be so entitled. The utmost the
matter comes to is this : that he, being a solicitor, the loans probably
put him in the way of getting some business, and by that means con-
duced to his getting profits from that business. But that is not fairly
the produce or profit of the trust estate, or a matter with which the
cestuis que trust have anything to do."

There are, however, some few exceptions to the rule laid down in the
principal case. Thus, the trustees and guardians managing the estate
of West India proprietors, according to the Acts of Assembly, are enti-
tled to a commission not above 61. per cent, as long as they personally
take care of the management and improvement of the estates committed
to their charge ; but not if they leave the island and trust the manage-
ment to others, acting as attornies (Chambers v. Goldwin, 5 Ves. 834;
9 Ves. 254, 257, 26t, 2T3; Denton v. Davy, 1 Moore, P. C. C. 15 ; and
see Henckell v. Daly, lb. 51). But although they have no right to be
paid their commission during absence, they are entitled to what tbey
have actually paid to others for the management of the estate, provided
the payments be in themselves reasonable ; as to which, if it be dispu-
ted, an inquiry will be directed {Forrest v. Elwes, 2 Mei'. 68) ; and
although a trustee individually abstains from acting in the trusts of a

ROBINSON V. PETT.

519

will, yet if he is qualified, and is ready and willing to act when called
upon by his co-trustee, he is entitled to a share of the commission
under the Jamaica Act, 24 Geo. 2, c. 10, s. 8 {Grant v. Campbell, 1
Moore, P. C. C. 43); and mortgagees in possession *are not en- j-j^„.„-,
titled to any commission, except what is paid by them to the '- -^
factor for commission ; Chambers v. Goldwin, 5 Ves. 801 ; 9 Ves. 268.

So, an executor appointed in the East Indies was formerly entitled,
in passing his accounts in the Courts of equity in this country, to the
commission of 51. per cent, upon the receipts or payments, according to
the practice in the East Indies. See Chetham v. Lord Audley, 4 Ves.
T2, where Lord Rosslyn allowed the commission, observing, that the
appointment of an executor in India, no legacy being given to him, was
the appointment of an agent for the management of the estate ; that
there would be no possibility of getting the business done at all with.
out the allowance ; and if the executors in England were to get a per-
son to do the business in India, they could not get it done so cheap.

But an Indian executor would not have been entitled to commission
if he had a legacy for his trouble, nor would he, after a long lapse of
time, be admitted to renounce the legacy in order that he might claim
the commission ; Freeman v. Fairlie, 3 Mer. 24.

The law of India is now altered, and no commission will be allowed
to an executor there unless it is expressly given to him by the testator.
See note to Matthews v. Bagshaw, 14 Beav. 126.

The general principle that a trustee cannot make a profit for himself
by the use of the trust property, applies to an agent entrusted with
money or any other property, for the purpose of using it for the own-
er's benefit. Thus, in Attorney-General v. Edmunds, 6 L. R. Eq. 381,
it having been the practice in the Inland Revenue Department for the
purchasers of stamps to be allowed a reduction on payment in cash , the
Clerk of the Patents had been accustomed to purchase stamps in the
Revenue Office for the accommodation of the patentees, he paying the
reduced amount for the stamps, and afterwards receiving the amount in
full from the patentees. It was held by Lord Justice Giffard, that the
Clerk of Patents was liable to account for any profit that might have
been made on the purchase of stamps purchased with public moneys,
but not for any profit made on the purchase of stamps purchased with
his own money. So in Shallcross v. Oldham, 2 J. & H. 609, the mas-
ter of a ship having authority to employ the vessel on freight to the
best advantage, but not to purchase a cargo on the owner's account,
being unable to procure remunerative freight, loaded the ship with a
cargo of his own. It was held by Sir W. Page Wood, V. C, that he
was liable to account to the owners for all the profits made by the sale
of the cargo, and not merely for *the proper freight. See also
Gardner V. M'Cutcheon, i Beav. 534. L 247]

So likewise, in the absence of any agreement express or implied, a

520 COMMISSIONS OF TRUSTEES AND EXECUTORS.

part owner or partner in ships who acts as ship's husband is not enti-
tled to charge the usual commission: Miller v. Mackay, 31 Beav. 77.

The managing owner of a ship however is, it seems, competent to
appoint himself to act as broker to the ship in collecting and distribu-
ting freight, there being no incompatibility between those services (as
it appears there would be between the services of ship's chandler or
ship's carpenter), and his fiduciary character as managing owner; see
Smith v. Lay, 3 K. & J. 105, in which case, however, before allowing
the managing owner a commission in respect of the services in ques-
tion. Sir W. Page Wood, V. C, directed an inquiry, whether according
to the custom of shipowners or otherwise, he being managing owner,
was entitled to any, and what commission in respect of duties per-
formed by him, and which duties are ordinarily performed by ship-
brokers.

In.Waters v. Earl of Shaftesbury, 2 L. R. Ch. App. 281, the agent
of a landholder who had contracted with the Land Drainage Company
under their. Act (12 & 13 Vict. c. 91), to execute the drainage works
as agent and surveyor of the company, (the landowner finding money
for the purpose,) and being paid an agreed amount by the company, it
was held by Lord Chelmsford, L. C, varying the decree of Sir John
Stuart, V. C, that notwithstanding the apparent terms of the contract,
it might be shown that the agent was not the real contractor, and was
not entitled to any profit on the contract.

Thle creator of the trust may authorise the trustee to make profes-
sional charges (Douglas v. Archhutt, 2 De Gr. & Jo. 148), or he may, as
was admitted by Sir Joseph Jekyll, M. R., in the principal case, direct
generally, compensation to be made to an executor or trustee, for his
care and trouble, or he may himself fix it at a particular sum of money,
or a salary ; see Webb v. The Enrl of Shaftesbury, 7 Ves. 480, and
Baker v. Martin, 8 Sim. 25 ; in which case a testator had directed that
lOOZ. a year should be annually paid to one of his executors, for his
trouble in superintending his concerns, until a final settlement of his
aflairs should take place. The executor proved and acted. Some time
after the testator's death, a suit was instituted for the administration
of his estate, but no receiver was appointed, and some of the assets were
still outstanding; it was held by Sir L. Shadwell, V. C, that the an-
nuity had not ceased, as it was not shown that the trouble of the execu-
tors had ceased.

Bvit where the creator of the trust does not himself fix the amount
*of compensation, a reference will be directed to settle what

r*248n

L ^ will be a proper allowance : Ellison v. Airey, 1 Ves. 115 ; Willis
V. Kibble, 1 Beav. 559 ; Jackson v. Hamilton, 3 J. & L. 702. So, as
observed by Lord Langdale, M. R., in Bainbrigge v. Blair, 8 Beav.
597, a testator, though knowing that if his trustee acted as solicitor,
and were allowed to make his professional charges, he would be enabled

ROBINSON V- PBTT.

521

to make business for himself, might, nevertheless, insert an authority
in the will permitting it (and this is not unfrequently done), and there
would be then no question about the matter.

Although trustees or executors will not generally be entitled to any
allowance for their trouble, they may, nevertheless, contract with their
cestui que trust to receive some compensation for acting, or to make
professional charges for acting. Such contract, however, would be most
carefully watched by the Court, and, unless it were perfectly fair, and
obtained without any undue pressure upon the cestui que trust, would
not be enforced. See Ayliffe v. Murray, 2 Atk. 58, in which case two
persons, executors and trustees under a will, refused to prove the will,
or act in the trust, or suffer the cestui que trust to take out letters of
administration cum testamento annexo, till he had executed a deed by
which he was to pay lOOL to Ayliffe, one of the executors, who was the
solicitor who drew the will, and 200L to the other, over and above their
legacies, within six months after they should have exhibited an inven-
tory. Upon a bill being brought for a specific performance of the
contract, and for an account. Lord Hardwicke declared, that the deed
was unduly obtained, and decreed that no allowance should be made
for the sum of lOOL and 200Z. " With regard to the merits,'' observed
his lordship, " whether, upon general grounds, a trustee may make an
agreement with his cestui que trust for an extraordinary allowance,
over and above what he is allowed by the terms of the trust, I think
there may be cases where this Court would establish such agreements,
but at the same time would be extremelj' cautious and wary in doing it.

" In general, this Court looks upon trusts as honorary, and a burthen
upon the honour and conscience of the person intrusted, and not under-
taken upon mercenary views ; and there is a strong reason, too, against
allowing anything beyond the terms of the trust, because it gives an
undue advantage to a trustee to distress a cestui que trust ; and, there-
fore, this Court has always held a strict hand upon trustees in this par-
ticular. If a trustee comes in a fair and open manner, and tells the
cestui que trust that he will not act in such a troublesome and burthen-
some office unless *the cestui que trust will give him a further

r*2491
compensation, over and above the terms of the trust, and it is L -^

contracted for between them, I will not say this Court will set it aside ;
though there is no instance where they have confirmed such a bargain.
... I consider the case in this light : — Two trustees are making an ill
use of an authority they had under the will, to extort a reward from a
cestui que trust. If they had told him. Give us a further reward, or
we will renounce, they had acted fairly, and something may have been
said in favour of the contract. The personal estate was vested in them
before probate, and could not be got out of them without an actual re-
nunciation ; the real estate likewise vested in them, and could not be
taken out of them but by an actual assignment ; and, sensible of .these

522 COMMISSIONS OF TRUSTEES AND EXECUTORS.

difficulties upon the defendant, the plaintiffs would not act, in order to
force him into their terms.

" This case has been compared to several other cases of fraud, and,
amongst the rest, of marriage brokage bonds, and not improperly ; for
the person who has the reward there, has as much trouble as the trus-
tees have here, and the party giving the reward in those cases, full as
willing as the defendant in this ; and yet the Court always set those
bargains aside as unconscionable. Consider the ill consequences of
such a case ; suppose it should be necessary that a will should be im-
mediately proved, as in the case of a widow and children. Shall a
trustee in whom the testator reposed a trust and confidence, and de-
pended upon his honour and kindness, insist upon such hard terms as
to have an unreasonable reward, before he will either, prove the will or
act in the trust ?"

In the recent case of In re Wyche, 11 Beav. 209, on an application
within twelve months, Lord Langdale refused to order the taxation of
a bill paid under other professional advice, to a trustee who had acted
as solicitor for a lady, he having, however, first declared that he would
not act, except on the ordinary terms of being paid as between solici-
tor and client; and the cestui que trust acquiesced in this proposal,
and signed a retainer in such special terms as to provide for it. " It
is said," observed his Lordship, " that it is extremely difficult for a
trustee against a cestui que trust, or for a solicitor against a client, to
make the client pay more than the rules of law allow. I will not ven-
ture to say, that, in such a case as this, it cannot be done ; because, if
the parties understand the principle that a trustee, acting as a solicitor
in the trust matters, is only entitled to the costs out of pocket, — ^if the
cestui que trust has clear knowledge and proper protection, I should
hardly say that such an * agreement is illegal, or that it cannot
[*250] ^g carried into effect. This lady, from the first, did know that
a trustee, acting as solicitor, was not entitled to ordinary costs as be-
tween solicitor and client ; and it does not appear that she had other
professional advice besides that given by the trustee himself." See also
In re Sherwood, 3 Beav. 338.

And even if a trustee makes a valid contract with his cestui que
trust for compensation for the trouble incident to the trust, it will not
be allowed if the trustee, in consequence of his death or otherwise, fail
to complete his contract. Thus, in Gould v. Fleetwood, Mich. 1132, at
the Rolls, an executor in trust, who had no legacy, and where the ex-
ecution of the trust was likely to be attended with trouble, at first re-
fused, but afterwards agreed with the residuary legatees, in considera-
tion of 100 guineas, to act in the executorship, and he dying before the
execution of the trust was completed, his executors brought a bill to
be allowed these 100 guineas out of the trust money in their hands, in-
sisting that the residuary legatees might as well make a contract with

ROBINSON V. PETT.

523

the executor touching the surplus (which was their own property), as
the testator himself, and that no harm could happen thereby to the
trust estate ; but Sir Joseph Jekyll, M. R., said, that all bargains of
this kind ought to be discouraged, as tending to eat up the trust ; and
here the executor had died before he had finished the affairs of the trust.
Wherefore tlie plaintiff's demand was disallowed : 3 P. Wms. 251, n.
(A.) ; 2 Eq. Ca. Ab. 453, pi. 8.

Nor will a contract by a trustee with his cestui que trust for prpfes-
sional charges be enforced, unless in distinct terms it takes the trustee
out of the general rule ; Moore v. Frowd, 3 My. & Cr. 45. See, also,
Matthison v. Clarke, 3 Drew. 3 ; Broughton v. Broughton, 5 De G. Mac.
& G. 160.

But it seems that a trustee may by implication, if clear, be author-
ized to make professional charges. Thus, in Douglas v. Archbutt, 2
De G. & Jo. 148, property was assigned to the plaintiff (who was known
to the assignor to be an auctioneer, although not so described in the
deed) upon trust to sell by public auction or private contract, and out
of the sale monies to pay the costs, charges, and expenses of prepar-
ing for making and completing such sales, " including the usual auc-
tioneer's commission." It was held by the Lord Justices, affirming the
decision of Sir John Romilly, M. R., that the plaintiflF, if he acted as
auctioneer at the sale, could retain his own commission. " The deed,"
said Lord Justice Turner, " contemplates a sale by auction. If the
words ' including the usual auctioneer's commission ' had not been in-
serted, it would have been *competent to the plaintiff under -,
the other words to charge any auctioneer's commission paid by L -'
him. These words, therefore, were not wanted for that purpose, and
for what purpose can they have been inserted but to authorise the plaintiff
to charge auctioneer's commission, if he himself acted as auctioneer ? " ■

Although a solicitor appointed executor " is to be at liberty to charge
for his professional services," he will only be entitled to charge for
services strictly professional, and not for matters which an executor
ought to have done without the intervention of a solicitor, such as for
attendances to pay premiums on policies, attending at the bank to make
transfers, attendances on proctors, auctioneers, legatees, and creditors :
Harbin v. Darby, 28 Beav. 325.

A trustee may contract with the Court, that he will not undertake
the trust without proper compensation ; and if he have undertaken the
trust upon the understanding! that application should be made to the
Court for compensation, a reference will be made to Chambers to ascer-
tain and settle what would be a reasonable allowance both for his past
and future services. See Marshall v. Holloway, 2 Swanst. 432, 453,
454 ; Brocksopp v. Barnes, 5 Madd. 90 ; Morrison v. Morrison, 4 My.
& Cr. 215.

Upon the same principle in the Bankruptcy Act of 1869 (32 & 33

524 COMMISSIONS OF TRUSTEES AND EXECUTORS.

Vict. c. "71), it is enacted that "a trustee (appointed under the Act)
shall not without the consent of the committee of inspection, employ a
solicitor or other agent, but where the trustee is himself a solicitor he
may contract to be paid a certain sum by way of percentage, or other-
wise as a remuneration for his services as trustee including all profes-
sional services, and any such contract shall, notwithstanding any law
to the contrary, be lawful." Sec. 29.

But, although trustees and executors will not, in the absence of con-
tract, be allowed any remuneration for their own trouble and loss of
time, they may, in special cases, employ agents, whose expenses will be
allowed out of the estate. Thus, a trustee, upon making out a proper case,
may employ a bailiff to manage an estate and receive the rents (Boni-
thon V. Hickmore, 1 Vern. 316; Stewart v. Hoare, 2 Bro. C. C. 663);
even although a recompense may have been given to him by the creator
of the trust for his trouble. Thus, in Wilkinson v. Wilkinson, 2 S. & S.
23T, a testator gave annuities of Ave guineas each to his trustees, for
the care and trouble they might have in the execution of the trusts, and
appointed them executors. Amongst other property, the testator was
entitled to about fifty houses in London, thirty four of which were let
at weekly rents. The trustees employed a person to collect those
*rents and the Master, on passing their accounts, allowed the
L -I salary they had paid to him ; and Sir J. Leach, V. C, overruled
an exception taken to the Master's report on account of that allowance.
" It does not appear to me," observed his Honor, " that the annuity of
five guineas to each trustee makes any difl[erence in this case. It is
given to them as a recompense for the care and trouble which will at-
tend the due execution of their otHce ; and, if it be consistent with the
due execution of their office that they should employ a collector to re-
ceive the rent, they will still be entitled to the annuity. A provident
owner might well employ a collector to receive such rent ; and the
labour of such collection cannot be imposed upon trustees."

So an executor, although he may be a solicitor, may employ another
solicitor to do business for him in the management of the testator's af-
fairs {Macnamara v. Jones, 2 Dick. SST ; Stanes v. Parker, 9 Beav.
389) ; or an accountant, if the accounts are of a diflScult or complicated
nature (Henderson v. Mclver, 3 Madd. 215 ; New v. Jones, 1 Hall & T.
634) ; or an agent to collect debts at a commission ; but the Court will
reduce it if too high. See Weiss v. Dill, 3 My. & K. 26, where an ex-
ecutor, having charged for the emploj^ment of an agent, at 5L per cent.,
to collect del)ts to the amount of 2000L, an exception, taken to the
Master's report, who allowed only 2^Z. per cent., was overruled by Sir
John Leach, M. R. " Generally speaking," said his Honor, " executors
are not allowed to employ an agent to perform those duties which, by
accepting the office of executors, they have taken upon themselves ;
but there may be very special circumstances in which it may be thought

ROBINSON V. PETT. 525

fit to allow them such exjDenses as thej^ may have incurred by the em-
ployment of agents. It is for the Master to determine whether an ex-
ecutor, who makes a claim for the employment of an agent, ought to
be allowed to charge his testator's estate with such a burthen. The
Master has here thought that the executor ought not to be allowed to
charge the testator's estate with the whole commission claimed, but that
2^1. per cent, is a fit allowance. I have some doubt whether in this case
the Master ought to have made any allowance ; but with the allowance
of 2^1. per cent, which he has made, the defendants must be content."
And see Hopkinson v. Roe, 1 Beav. 180 ; Day v. Croft, 2 Beav. 488 ;
Harbin v. Darby, 28 Beav. 325, where it is laid down that an executor
will not be allowed the charges of a solicitor for doing things which
the executor ought strictly to have done himself.

Upon the principle, that a trustee should not profit by his trust, a
person, whether he is sole trustee *or a trustee jointly with
others, will not in general be appointed receiver with a salarj^, L ^
for this would be a mode of giving a trustee emolument (Anon., 3 Ves.
515 ; V. Jolland, 8 Ves. 12; Sykes v. Hastings, 11 Ves. 363 ; Sut-
ton v. Jones, 15 Ves. 584 ; Nicholson v. Tutin, 3 K. & J. 159) ; "un-
less no one else can be procured who will act with the same benefit to
the estate, where there is a necessity, from the circumstance, that, by
any one else, the estate would not be so well managed" (Sykes v. Hast-
ings, 11 Ves. 364, per Lord Eldon; Newport v. Bury, 23 Beav. 30);
and even where a trustee oflTers to act as receiver without a salary, the
Court will only appoint him to the office on the ground that it is for
the benefit of the estate, because it is the duty of the trustee to examine
with an adverse eye, and see that the receiver does his duty : Hibbert v.
Jenkins, cited 11 Ves. 363, 364. " The consequence is," says Lord Eldon,
" the case of appointing a trustee to be receiver is extremely rare, and
only where he will act without emolument : " Sykes v. Hastings, 11 Ves.
364. It is no objection, however, that a person is trustee to preserve
contingent remainders : Sutton v. Jones, 16 Ves. 587. So, it is compe-
tent for the Court, as a matter of discretion, to appoint an executor
and trustee, consignee, with the usual profits ; and where a discretion of
that kind has been exercised and acted upon, it will not at a subsequent
period be withdrawn : Marshall v. Holloway, 2 Swanst. 432 ; Morrison
V. Morrison, 4 My. & Cr. 215, 224.

Where a person standing in a fiduciary position has sold property of
his own to his cestui que trusts, they must either adopt the bargain or
repudiate it altogether.

If they repudiate it, the transaction can only be set aside upon the
terms of their restoring to the trustee the property which they received
from him, the principle of the Court being to place the jmrties in ex-
actly the same situation as they were in before the transaction.

If the return of the property to the trustee becomes impossible

526 COMMISSIONS OF TRUSTEES AND EXECUTORS.

through no fault of the trustee, his cestui que trust would have to
allow him the value of it, he not being allowed to make any profit
tlierefrom: The Bank of London v. Tyrell,21 Beav. 213; 10 H. L,
Cas. 26.

But if tlie cestuis que trust, impeaching a sale to them by their trus-
tee, sold the property in question pending the litigation concerning the
transaction, they will be entitled to no relief. See The Great Luxem-
bourg Railway Company v. Sir William Magnay, 25 Beav. 586 : there
a railway company furnished a director with a large sum of money to
enable him to purchase the " concession " of another line. He pur-
chased, as it turned out, from himself, being the concealed *owner
[*254] ^j j^_ j^ ^g^g jjg^^ ^^ gjj, JqJ^j^ Romilly, M. R., that the trans-
action could not stand, but that the company must adopt or repudiate
the transaction altogether ; and, the company having sold the conces-
sion pending a suit impeaching the transaction, it was also held that
they could have no relief either as to the application of the money or
otherwise. See note to Fox v. Mackreth, ante. Vol. 1, p. 148

Upon the same principle as that laid down in Eohinson v. Pelt, if a
trustee or executor improperly keeps in his own possession trust
money which ought to have been invested, or paid over to the person
entitled to it, although it be not shown that he made a profit by so
doing, he will be charged interest, at a rate which may be varied at the
discretion of the Court. See Tehhs v. Carpenter, 1 Madd. 290, 306,
where Sir T. Plumer, after an elaborate examination of the authorities,
observed, that it appeared that a distinction had been taken, as in
every moral point of view there ought to be, between negligence and
corruption in executors.

Where money is thus improperly retained, it appears to be immate-
rial how the sum has arisen, whether from a legacy, or a distributive
share, or a residue, or the arrears of income. In the latter case, the
claim for interest is not made on account of the arrears, but for the
improper keeping back of a sum of money, from whatever source de-
rived, which tlie executor or trustee ought to have paid over. Per
Lord Chelmsford, L. C, in Blogg v. Johnson, 2 L. R. Ch. App. 228.
And in a proper case interest will be given though it be not prayed for
by the bill : Pearse v. Green, 1 J. & W. 185 ; Johnson v. Prendergast,
28 Beav. 480 ; Blogg v. Johnson, 2 L. R. Ch. App. 229.

A special case is necessary to induce the Court to charge executors
with more than 4L per cent, upon the balances in their hands : Court
V. Roharts, 6 C. & F. 65 ; Attorney-General v. Alford, 4 De G. Mac. &
G. 843 ; Penny v. Avison, 3 Jur. N. S. 62 ; Stafford v. Fiddon, 23 Beav.
386 ; Johnson v. Prendergast, 28 Beav. 480. And no interest will be
cliarged against money found to be in the hands of executors or trus-
tees, unless the retention thereof was improper: Blogg v. Johnson, 2
L. R. Ch. App. 225.

ROBINSON V. PBTT. 527

If, however, a trustee or executor employ the trust funds in a trade
or adventure of his own, whether he keeps them separate from, or
mixes them with, his own private monies, and notwithstanding the
difficulties which in the latter case may arise in taking the accounts,
the cestui que trust, if he prefers it, may insist upon having the profits
made by, instead of interest on the amount of, the trust funds so em-
ployed. In the important and leading case of *Z>oc^^erv. /Somes,
2 My. &. K. 655, trustees having paid part of the trust funds to ^ -'
their bankers, to the credit of their general account, without distin-
guishing the same from the monies employed in their own business of
ship-chandlers and sail-makers, it was argued that the trustees ought
only to be charged interest for the trust monies employed by them.
Lord Brougham, however, in an elaborate judgment, held that the
cestui que trusts might at their option charge them either with interest
or with a proportionate share of the profits. " Wherever," said his
Lordship, " a trustee, or one standing in the relation of a trustee, vio-
lates his duty and deals with the trust estate for his own behoof, the
rule is, that he shall account to the cestui que trust for all the gain
which he has made. Thus, if trust money is laid out in buying and
selling land, and a profit made by the transaction, that shall go, not to
the trustee who has so applied the money, but to the cestui que trust
whose money has been thus applied. In like manner (and cases of
this kind are more numerous), where a trustee or executor has used the
fund committed to his care in stock speculations, though the loss (if
any) must fall upon himself, yet, for every farthing of profit he may
make, he shall be accountable to the trust estate. So, if he lay out the
trust money in a commercial adventure, as in buying or fitting out a
vessel for a voyage, or put it in the trade of another person, from
which he is to derive a certain stipulated profit, although I will not say
' that this has been decided, I hold it to be quite clear, that he must ac-
count for the profits received by the adventure, or from the concern.
In all these cases it is easy to tell what the gains are. The fund is
kept distinct from the trustee's other monies, and whatever he gets, he
must account for and pay over. It is so much fruit, so much increase,
on the estate or chattel of another, and must follow the ownership ot
the property and go to the proprietor. . .

'.' Such being the undeniable principle of equity, such the rule by
which breach of trust is discouraged and punished — discouraged by
intercepting its gains, and thus frustrating the intentions that caused
it — punished by charging all losses on the wrongdoer, while no profit
can ever accrue to him — can the Court consistently draw the line as
the cases would seem to draw it, and except from the general rule those

instances where the risk of the malversation is most imminent those

instances where the trustee is most likely to misappropriate, namely
those in which he uses the trust funds in his own traffic ? At first

528 COMMISSIONS OF TRUSTEES AND EXECUTORS.

sight this seems grossly absurd, and some reflection is required to
understand how the Court could ever, even in appearance, *coun-
L -I tenance such an anomaly. The reason which has induced judges
to be satisfied with allowing interest only, I take to have been this :
they could not easily sever the profits attributable to the trust money
from those belonging to the whole capital stock ; and the process be-
came still more difficult where a great proportion of the gains pro-
ceeded from skill or labour employed upon the capital. In cases of
separate appropriation, there was no such difficulty, as where land or
stock had been bought and then sold again at a profit ; and here ac-
cordingly, there was no hesitation in at once making the trustee account
for the whole gains he had made. But where, having engaged in some
trade himself, he had invested the trust money in that trade along with
his own, there was so much difficulty in severing the profits, which
might be supposed to come from the money misapplied, from those
which came from the rest of the capital embarked, that it was deemed
more convenient to take another course, and, instead of endeavouring
to ascertain what profit had been really made, to fix upon certain rates
of interest as the supposed measure or representative of the profits,
and to assign that to the trust estate

" This principle is undoubtedly attended with one advantage — it
avoids the necessity of an investigation, of more or less nicety, in each
individul case, and it thus attains one of the important benefits result-
ing from all general rules. But mark what sacrifices of justice and of
expediency are made for this convenience. All trust estates receive
the same compensation, whatever risks they may have run during the
period of their misappropriation — all profit equally whatever maj' be
the real gain derived by the trustee from his breach of duty ; nor can
any amount of profit made be reached by the Court, or even the most
moderate rate of mercantile profit — ^that is, the legal rate of interest —
be exceeded, whatever the actual gains may have been, unless by the
very clumsy and arbitrary method of allowing rests, in other words,
compound interest, and this without the least regard to the profits ac-
tually realised ; for, in the most remarkable case in which this method
has been resorted to {Raphael v. Boehm, stated in 11 Ves. 92, and 1
Madd. 300, which indeed is always cited to be doubted, if not disap-
proved), the compound interest was given with a view to the culpability
of the trustee's conduct, and not upon any estimate of the profits he had
made by it.

" But the principal objection which I have to the rule, is founded
upon its tendency to cripple the just power of this Court in by far the
most wholesome and indeed necessary exercise *of its functions,
L -' and the encouragement thus held out to fraud and breach of
trust. What avails it towards preventing such malversations, that the
contrivers of sordid injustice feel the power of the Court only where

ROBINSON V. PETT. 529

tliey are clumsy enough to keep the gains of their dishonesty severed
from the rest of their stores ? It is in vain they are told of the Court's
arm being long enough to reach them, and strong enough to hold them,
if they know that a certain delicacy of touch is required, without which
the hand might as well be paralysed or shrunk up. The distinction, —
I will not say sanctioned, but pointed at by the negative authority of
the cases, — proclaims to executors and trustees, that they have only to
invest the trust money in the speculations, and expose it to the hazards
of their own commerce, and be charged 5Z. per cent, on it, and then they
may pocket 15Z. or 201. per cent, by a successful adventure. Surely the
supposed difHculty of ascertaining the real gain made by the misappli-
cation, is as nothing compared with the mischiefs' likely to arise from
admitting this rule, or rather this exception to one of the most general
rules of equitable jurisdiction.

" Even if cases were more likely to occur than I can think they are, of
inextricable difficulties in pursuing such inquiries, I should still deem
this the lesser evil by far, and be prepared to embrace it.

" Mr. Solicitor-General put a case of a very plausible aspect, with a
view of deterring the Court from taking the course which all principle
points out. He feigned the instance of an apothecary buying drugs
with lOOL of trust mone3f, and earning lOOOZ. a year by selling them to
his patients; and so he might have taken the case of trust money laid
out in purchasing a piece of steel, or skein of silk, and these being
worked up in goods of the finest fabric, Birmingham trinkets, or Brus-
sels lace, where the work exceeds by 10,000 times the material in value.
But such instances in truth prove nothing ; for they are cases not of
profits upon stock, but of skilful labour very highly paid ; and no
reasonable person would ever dream of charging a trustee, whose skill
thus bestowed had so enormously augmented the value of the capital,
as if lie had only obtained from it a profit ; although the refinements of
the civil law would certainly bear us out, even in charging all gains
accruing upon those goods, as in the nature of accretions belonging to

the true owners of the chattels

" The last person who can be heard to argue from the diflaculty of
tracing or apportioning the profits of the misapplied fund, is the man
whose breach of trust has caused the misapplication, and created the
difficulty.

" When did a Court of justice, ^whether administered ac- rj^^nro-i
cording to the rules of equity or of law, ever listen to a wrong-
doer's argument to stay the arm of justice, grounded on the steps he
himself had successfully taken to prevent his iniquity from being
traced ? Rather let me ask, when did any wrong-doer ever yet possess
the hardihood to plead, in aid of his escape from justice, the extreme
difficulties he had contrived to throw in the way of pursuit and detec-
tion, saying, ' You had better not make the attempt, for you find I
VOL. II. — 34

530 COMMISSIONS OF TRUSTEES AND EXECUTOKS.

have made the search very troviblesome ?' The answer is, ' The Court
will try.' " See also Palmer v. Mitchell^ 2 My. & K. 672, n. ; Wedder-
burn V. Wedderburn, 2 Kee. 41 ; 4 My. & Cr. 41 ; 22 Beav. 84, 100,
124 ; Fosbrooke v. Balguy, 1 My. & K. 226 ; Willett v. Blandford, 1
Hare, 253 ; Portloclc v. Gardner, lb. 603 ; Parker v. Bloxam, 20 Beav.
295 ; Cummins v. Cummins, 8 Ir. Eq. Rep. t23 ; Vyse v. Foster, 20 W.
R. (V. C. B.) 69Y.

Should, however, in any case a serious difficulty arise in tracing and
apportioning the profits derived by a trustee or executor from the
employment of trust fands together with his own, in any trade or
speculation, it maj' be a reason for preferring a fixed rate of interest to
an account of the profits, and it seems the Court would allow interest
at bl. per cent, per annum, with yearly rests, that is, with compound
interest {Jones v. Foxall, 15 Beav. 392) ; and the same interest will be
charged by the Court, if the trustee or executor, who is a trader, pays
the trust fund into his own account at his bankers' ( Williams v.
Powell, 15 Beav. 461, 468) ; unless he can show that he has not had the
benefit thereof in his trade : lb.

As, however, the business of a solicitor is not a trade, in which com-
pound interest is made on the money emplo3'ed therein, compound
interest will not be charged on trust mimeys paid by a solicitor into the
account of his firm, but only interest at bl. per cent. : Burdick v. Oar-
rick, 5 L. R. Ch. App. 233.

The rule laid down in the principal case, was enforced recently by
Sir John Stuart, V. C, in the very singular case of Sugden v. Gross-
land, 3 Sm. & G. 192. There a trustee in consideration of t5Z. paid to
him by the defendant agreed to retire from the trust and cause the
defendant to be appointed a trustee in his place. The arrangement
was subsequently carried out. His Honor declared the deed appoint-
ing the defendant a trustee to be void, and the sum of t5Z. should be
treated as part of the trust fund. " It is a well-settled principle," he
observed, " that if a trustee make a profit of his trusteeship, it shall
inure to the benefit of his cestui que trusts. Though there is some
-, peculiarity in the case, there does *not seem to be anj' difl'er-
ence in principle whether the trustee derived the profit by
means of the trust property, or from the office itself."

If, however, a person is merely a constructive trustee, from having
employed the money of another in a trade or business, and does not
expressly fill any fidiiciary character, as that of trustee or executor,
although he must account for the profits of the money he employed, he
will have an allowance made to him for his loss of time, skill, and
trouble. Thus, in Brown v. Litton (1 P. Wms. 140 ; 10 Mod. 20), the
captain of a ship having 800 dollars on board, which he intended to
invest in trade, died on his voyage, and the mate, becoming captain,
took the 800 dollars, and investing them in trade, made great improve-

ROBINSON V. PBTT. 531

ments thereof, and on his return to England, the executrix of the first
captain brought a bill against him for an account. The defendant
admitted the receipt of the money, and offered to repay the same with
interest, whereas the plaintifi' insisted on the profits produced in trade,
and the several investments that had been made therewith. Lord
Keeper Harcourt, however, considering that the defendant was like a
trustee, held that he ought clearly to account for the profits made of
the money ; but that, to recompense him for his care in trading with
it, the Master should settle a proper salary for the pains and trouble he
had been at in the management thereof. And his Lordship compared
it to the case of two joint traders, where, if one dies, and the survivor
carries on the trade after the death of the partner, the survivor shall
answer for the gain made by this trade ; and, that this being an island,
all imaginable encouragement ought to be given to trade ; and such
construction was for the benefit of him who carried out this money
with that intent ; and there was no reason that his death should so far
injure his family and relations, as to deprive, them of the benefit which
might accrue from it in the way of trade. In Brown v. De Tastet, Jac.
284, on the death of one of the partners in a business, the survivor, re-
taining his capital, and employing it in the trade, was decreed by Lord
Eldon to account for the profits derived from it, but proper allowances
were to be made to him for his management of the business. And see
Crawshay v. Collins, 15 Ves. 218; 1 J. & W. 26t ; 2 Russ. 325;
Feather stonhaugh v. Fenwick, l"? Ves. 298 ; Cooke v. Collingridge, Jac.
607.

Although trustees employing the trust funds in any trade or busi-
ness are liable to account for the profits made therebjf, nevertheless,
when without authority they lend the trust funds to traders, who with
notice of the trust employ such funds in their *business, such r^nnn-i
traders will not be liable to account to the cestui que trust for
a share of the profits of the business : Slroud v. Gwyer, 28 Beav. 130 ;
Townend v. Townend, 1 Giff. 210; Macdonaldv. EicJiardson, 1 Giff".
81 ; Simpson v. Chapman, 4 De G. Mac. & G. 154.

Upon the principle laid down in Bobinson v. Pett, a trustee will not
be allowed to have the sporting over the trust estate, nor to appoint
gamekeepers to preserve the game for his own amusement : see Webb v.
The Earl of Shaftsbury, 1 Ves. 488, where Lord Eldon directed an
inquiry whether the liberty of sporting could be let for the benefit of
the cestuis que trust ; and if it could not, he thought the game would
belong to the heir. If it was necessary for the preservation of the
game, that the trustees should appoint a gamekeeper, he would not be
prevented from appointing one, but for that purpose only ; for he could
not under the will have an establishment of pleasure on the trust es-
tate ; and see Hutchinson v. Morritt, 3 Y. & 0. Exch. 547.

532 COMMISSIONS OF TRUSTEES AND EXECUTORS.

So, likewise, a person standing in a fiduciary relation towards an-
other will not be allowed to benefit by his trust by obtaining a re-
newal of a lease (see Keech v. Sand ford, and note, ante, Vol. 1, p. 24) ;
or by purchasing from his cestui que trust (Fox v. Mackreth, ante, Yol.
1, p. 115). And the principle is applicable to receivers (In re Ormsby,
1 Ball & B. 189) ; and committees of lunatics' estates : Anon., 10 Ves.
103.

Upon the same principle, where the Court of Madras had under its
general jurisdiction made a general order authorizing the registrar of the
Court to institute proceedings in certain eases on behalf of infants, and
it appeared that the registrar was entitled to receive fees upon proceed-
ings in such suits, as well as on commission upon the amount of monies
paid into Court, it was held bj' the Judicial Committee of Privy Coun-
cil, that such general order was void, it being against public policy to
allow an officer of the Court to institute suits, in the conduct of which
he might have a direct personal interest, and that all orders made in a
suit instituted by the registrar in pursuance of such order ought to be
reversed. '' Whatever," said Pemberton Leigh, P. C, " may be the
propriety of making provision by the appointment of a public officer
for the institution of suits on behalf of infants, it is of the utmost
importance that no person should be appointed for that purpose of
whom even a suspicion can exist, that he may be biassed by any per-
sonal interest, either in the institution of the suit, or in the mode of
conducting it :" Kerakoosew. Serle, 4 Moore, P. C. C. 459.

The principle that a person in a fiduciary position should not derive
r*9An ^"3^ profit thereby, seems *to have been departed from in those
cases which have decided, after some conflict of judicial opinion,
that it is not illegal or contrary to public policy for a member of the-
British legislature to make a profit by an agreement for the withdrawal
of his opposition to a bill aflfecting his property, although it is evident
that by such an agreement he necessarily places his private interest in
conflict with his duty as a legislator. See Simpson v. Lord Howden,
1 Keen, 583 : there, by agreement between Lord Howden, a peer of
Parliament, and the proprietors of shares in a projected railway, it was
stipulated on one hand that Lord Howden should withdraw his oppo-
sition to a bill in Parliament for establishing the railway according to
a certain line, and on the other hand, that the proprietors, on the bill
passing, should pay certain sunis to Lord Howden by way of compen-
sation for the injury his laud would sustain, and use their best en-
deavours to procure a deviation from the original line in the next
session of Parliament. After the bill for establishing the railway had
passed, the proprietors filed a bill to have the agreement delivered up
to be cancelled, as being contrary to public policy, and therefore void.
Lord Langdale, M. R., overruled a general demurrer for want of equity.

ROBINSOX V. PETT,

533

" The plaintiffs," said his Lordship, " allege that the agreement is ille-
gal and against public policy, on three grounds : — First, they say that
it was a fraud on the other landowners through whose ground the line
of railway was intended to pass. Secondly, that it was a fraud on the
legislature by procuring an Act of Parliament on a representation that
one line of railway was best, and intended to be pursued, Imt which, in
fact, was not intended to be adopted. Thirdly, that it was an illegal
act in Lord Howden, who, as a member of Parliament, had no right to
make an agreement which necessarily placed his private interest in con-
flict with his duty as a legislator. It is said, and truly said, that every
member of the legislature ought to preserve his judgment free, unbi-
assed, and disinterested, for the performance of his legislative duties ;
and it is argued that it is illegal to enter into an agreement which gives
him a direct and immediate interest in the very subject with reference
to which that duty is to be performed. I do not think it is necessarj- for
me to determine on the present occasion whether this agreement can
properly be considered as a fraud on the landowners through whose
grounds the line of railway was to pass, or how far the character of
the defendant, as ,1 member of Parliament, precludes him from any
right, which persons not invested with that character, may have, to
enter into such an agreement. It has been held that the *with- r*9/.9-i
drawing opposition to a bill in Parliament may be a good con-
sideration for a contract, and it certainly may be st) in cases where the
provisions of the Act are consistent with, and are not intended to be
thwarted by, the provisions of the agreement ; but it by no means fol-
lows that it should be so in this case. I do not, however, enter particu-
larly into that question, because it appears to me that the second of
the grounds alleged by the plaintiffs for considering this agreement in-
valid is sufficient to enable me to decide on this demurrer." On appeal,
the decision of Lord Langdale was reversed by Lord Cottenham, C.
(3 My. & Or. 97 ; 1 Eailway Cas. 326). The agreement was after-
wards held by the Court of Exchequer Chamber, reversing the decision
of the Court of Queen's Bench, to be valid at law : Lord Howden v.
-Simpson, 1 Eailway Cas. 34Y. See also Lord Petre v. The Eastern
Counties Railway, 1 Railway Cas. 462. See, however. Earl of Shreivs-
bury y. North Staffordshire Eailway Company, 1 L. R. Eq. 593.

It is not, however, permitted to a person who is a member of a body
not of a governing or legislative character, to make, contrary to his
duty as a member of such body, a bargain for his own private advan-
tage. Thus, in Bowes v. The City of Toronto, 1 1 Moo. P. C. C. 463,
the mayor and corporation of the city of Toronto, in Canada, were au-
thorized by the Canadian Act, 13 & 14 Vict. c. 84, to issue debentures
to a certain amount, to assist in the construction of the Toronto, Sim-
coe and Lake Huron Railway. At that period the appellant Bowes

534: COMMISSIONS OF TRUSTEES AND KXECUTORS.

was the mayor and a member of Finance Committee, and took an ac-
tive part in passing a by-law which authorized the issue by the corpora-
tion of debentures for the completion of the railway. Bowes at that
time was engaged in co-partnership with Hall, and their firm, Bowes and
Hall, purchased of Story and Companj', contractors for the railway
company, some of the debentures so issued, which had been assigned
to Story and Company by the corporation. Bowes and his partner
afterwards sold the debentures, and thereby realized a large profit.
This transaction was without tlie knowledge of the coiporation. It
was held by the Judicial Committee of the Privy Council (affirming
the decree of the Court of Chancery in Canada), that Bowes must, in
the circumstances of his being a member of the corporation, and the
manner in which he acted througliout the transaction, be treated as the
trustee of the corporation, and was not entitled to any benefit received
from the sale of the debentures, and was liable to account to the cor-
poration for the ascertained and unquestioned amount of profit made
r^ofisH ^^^ received by him in the transaction *in which he had en-
gaged m respect of the sale of the corporation debentures, and
that it was immaterial that the profit from the sale of the debentures
was made by Bowes and his partner. Hall, jointly, and not by Bowes
alone. '' It has been argued," said Lord Justice Knight Bruce, in de-
livering judgment, "that the governing body of the corporation was a
deliberative bodj', and on that ground out of the operation of any civil
rules or principles applicable to agents and trustees, and the reported
cases of Lord Petre. v. The Eastern Counties Bailway (1 Railway
Cases, 462), and Simpson v. Lord Eowden (3 My. & Cr. 9Y), were
mentioned ; and it was said that members of the British legislature
often vote in Parliament respecting matters in which they are person-
ally interested, and do so without censure or risk. We are of opinion,
however, that neither the governing character nor the deliberative char-
acter of the corporation council makes any difference, and that the
council was in effect and substance a body of trustees for the inhabi-
tants of Toronto — trustees having a considerable extent of discretion
and power, but having also duties to perform, and forbidden to act cor-
ruptly. With regard to members of a legislature, properly so called,
who vote in support of their own private interests, if that ever hap-
pens, tliere may possibly be insurmountable difficulties in the way of
the practical application of some acknowledged principles by Courts of
civil justice, which courts, however, are nevertheless bound to apply
those principles where they can be applied. The Common Council of
Toronto cannot in any proper sense of the term be deemed a legislative
body, nor can it be so treated. The members are merely delegates in
and of a provincial town for its local administration. In every pur-
pose at present material, they must be held to be merely private per-

ROBINSON V. PETT. 535

sons, having to perform duties, for the proper execution of which they
are responsible to powers above them. We agree that the cases of
Lord Petrie v. The Eastern Counties Railway, and Simpson v. Lord
Howden, must at present be viewed as correct expositions of English
law ; but so viewed, they do not, we conceive, affect the controversy
before us."

Although trustees and executors are not allowed any remuneration
for their trouble, they will be allowed all proper expenses out of pocket,
whether they be provided for in the instrument creating the trusts or
not: Hide v. Haywood, 2 Atk. 126; Worrall v. Harford, 8 Ves. 8 ;
Dawson v. Clarke, 18 Ves. 254 ; Attorney- General v. The Mayor of
Norwich, 2 My. & Cr. 424. Thus, they will be allowed the expense of
travelling (Ex parte Lovegrove, 3 D. & 0. T63) ; of fees for counsel
(Gary, 14) ; costs of a *law suit (Amand v. Bradbourne, 2 Ch. r^ic.jo^-i
Ca. 138 ; Fearns v. Young, 10 Ves. 184) ; unless such expenses
were improper (Malcomb v. 0' Gallaghan, 3 M. & C. 52) ; or the liti-
gation was occasioned by their own negligence : Caffrey v. Darby, 6
Ves. 488, 497.

But it seems they will in no case be allowed interest on costs : Gor-
don V. Trail, 8 Price, 416.

Although a trustee ought to keep an account of his expenses, his not
having done so will not, it seems, disentitle him to an allowance :
Hethersell v. Hales, 2 Ch. Rep. 158.

And he will have a lien on the trust estate for his expenses {Ex parte
James, 1 Deac. & C. 272) ; but it will not extend to the persons em-
ployed by him in the affairs of the trusts ( Worrall v. Harford, 8 Ves.
8; Lawless v. Shaw, L. &. Q., t. Sugd. 154, reversed Dom. Proc. 5 C.
& F. 129) ; and if the trust estate no longer exists, the trustee may
proceed in equity against the cestui que trust personally : Balsh v.
Hyham, 2 P. Wms. 453.

A trustee maj', however, from accidental circumstances, profit by his
trust, as where the cestui que trust dies intestate without heirs ; for in
that case the lord cannot claim by escheat, and, subject to the right of
creditors, the trustee may retain possession, not by any title of his
own, but because no other person can show a title. This was deter-
mined after much discussion in the important case of Burgess v.
Wheate, 1 Eden, 177. There A., being seised in fee ex parte paterna,
conveyed real estate to trustees, in trust for herself, her heii'S and
assigns, to the intent that she should appoint, and for no other use,
intent or purpose whatsoever. A. died without having made any ap-
pointment, and without heirs ex parte paterna. It was held by Lord
Keeper Henley, and Sir John Clarke, M. R., first, that the maternal
heir was not entitled; and, secondly, that there being a terre tenant,
the Crown, claiming by escheat, had not a title by subpoena to compel

536 COMMISSIONS OF TRUSTEES AND EXECUTORS.

a conveyance from the trustee, the trust being absolutely determined ;
but no opinion was given upon the right of the trustee : and see Attor-
ney-General V. Sands, Hard. 496 ; Tudor's L. C. Real. Prop. p. 664,
2nd ed. ; Bavall v. New River Company, 3 De G. & Sm. 394 ; Cox v.
Parker, 22 Beav. 168.

Upon the same principle, where land is devised to trustees upon trust
to convert into monej'^ for purposes which either fail or never take
eflfect, and the testator dies without heirs, the lord cannot claim by
escheat, as there are tenants in possession ; nor has the Crown any
right to come into equity to ask that the land should be converted, in
order that it may take the money as bona vacantia, nor even if the land
r*9fifn ^^^ ^^^" unnecessarily converted, can the *Crown make good
any claim, as the money will be the absolute property of the
trustees : Taylor v. Haygarth, 14 Sim. 8 ; Walker v. Denne, 2 Ves. Jun.
185 ; Cradock v. Oweii, 2 Sm. & GiflF. 241.

But a trustee must convey to trustees according to the directions of
a testator, although the trusts for which the conveyance was directed
may have failed or never arisen ; Onslow v. Wullis, 16 Sim. 483, 1 Mac.
& G. 506. See also Jones v. Goodchild, 3 P. Wms. 33.

In case of the attainder of the cestui que trust for felony, it seems to
have been the opinion of Lord Keeper Henley and Sir Thomas Clarke,
M. R., that if he were pardoned by the Crown, he might enforce the
trust; see 1 Eden, 210, 255. Lord Mansfield, however, observed, that
he could find no clear and certain rule to go by ; and yet he thought
equity would follow the law throughout; 1 Eden, 236.

It seems, however, doubtful whether the heir of a person executed
for felony could sue the trustee. See Br. Ab. tit. " Fefl'. al. TJs." 34. But
see now o3 & 34 Vict, c- 23, abolishing the forfeiture of lands and
goods for treason and felony.

It is however clear, that upon the failure of the heirs of the cestui que
trust, the heir of the trustee cannot come into equity as plaintiff, to as-
sert his right. See 1 Eden, 212 ; and Williams v. Longsdale, 3 Ves.
752, in which case a cop^'hold (duly surrendered) was devised to A.
and his heirs, in trust for B. and his heirs. Upon the death of B. with-
out heirs, it was held by Lord Rosslyn, that the heir of the trustee had
no equity to compel the lord to admit him ; and his bill was dismissed,
without costs. " The only point," observed his Lordship, " determined
in Burgess v. Wheate, was that the Crown entitled, as it was supposed,
by escheat upon the death of the cestui que trust, had not a title by
subpoena in this Court to make the heir of the trustee, having merelv a
legal estate, convey ; that there was no equitj' for this Court to exercise
jurisdiction. Is not the converse of that equally true ? If the lord has
no equity in that case, can I find any ground of equity where the per-
son having the legal estate, and telling me he has no beneficial interest.

ROBINSON V. PETT. 537

desires me to act for his benefit upon tlie estate of the Lord ? The
Court considers the mere legal estate as nothing."

But the Court of King's Bench will by mandamus compel the lord to
admit the heir of a trustee, although he has a mere legal title ; The
King v. Coggan, 6 East, 431 ; S. C, 2 Smith, ill ; King v. Wilson, 10
B & C. 80.

Lord Mansfield asked, in Surges v. Wheate (see 1 Eden, 185),

whether, in the event of the attainder of the cestui que trust, the right

would not result to the *creator of the trust ; but no notice ap-

r*266l
pears to have been taken of this observation, nor does the ques- '- -^

tion ever appear to have been determined, and since the passing of 33 &

35 Vict. c. 23, it has ceased to be important.

If the cestui que trust of real or personal chattels, having no next of
kin, dies, either intestate (Jones v. Goodchild, 3 P. Wms. 33 ; Ruther-
ford V. Maule, 4 Hagg. 213 ; Taylor v. Haygarth, 14 Sim. 8), or, if
under the old law, having made a will, he appointed an executor, who
either expressly or by implication was excluded from all beneficial in-
terest, so as to be converted into a mere trustee (Middleton v. Spicer,
1 Bro. C. C. 201 ; Barclay v. Russell, 3 Ves. 424 ; Henchman v. Attor-
ney-General, 3 My. & K. 492 ; Gave v. Roberts, 8 Sim. 214), the Crown
in either case, by virtue of its prerogative, may claim the chattels as
bona vacantia ; Powell v. Merrett, 1 Sm. & Giff. 381 ; Gradock v.
Owen, 2 Sm. & G. 241 ; Read v. Stedman, 26 Beav. 495; Dacre v. Pat-
rickson, 1 Drew. & Sm. 182. But if under the old law there was noth-
ing in the will to convert the executor into a trustee ; or if, ^ince the
passing of 11 Geo. 4 & 1 Will. 4, c. 40, it appears to be the intention
that he shall be the beneficial owner, the Crown cannot make good its
claim. See note to Attorney-General v. Sands, Tudor's L. C. Real
Prop. 61fi, 2nd ed. ; see also Dyke v. Walford, 5 Moore, P. C. C. 434 ;
Ellcock V. Mapp, 3 H. L. Cas. 492 ; Russell v. Cloiues, 2 Coll. 648.

As aliens could not before the Naturalization Act, 1810 (33 & 34
Vict. c. 14), hold lands as against the Crown, it was couten.led, but un-
successfully, that trustees to whom lands were devised in trust for an
alien, were entitled to hold the lands discharged of the trust. See Bar-
row V. Wadkin, 24 Beav. 1 ; 3 Jur. N. S. 6T9 ; 5 W. R. 695, where Sir
John Romilly, M. R., held that the trust ought to be executed for the
Crown. See also Sharp v. St. Sauveur, 1 L. R. Ch. App. 343, overrul-
ing Rittson V. Stordy, 3 Sm. & Giff. 230.

It has been before shown that an alien, although he could not hold
land, was entitled to the proceeds of lands devised to trustees to sell for
his benefit ; Du Hourmelin v. Sheldon, 1 Beav. 79 ; 4 My. & Cr. 525 ;
and see ante. Vol. 1, p. 845.

These questions will not now often arise, inasmuch as, by the Natur-
alization Act, 1870 (which is not, however, retrospective) aliens may
hold property of every description, like British-born subjects.

538 COMMISSIONS OF TRUSTEES AND EXECUTORS,

*The subject of a trustee's com-
pensation, is intimately connected
with that of his liability. Where
he is treated as a paid agent, and
has undertaken the trust as such,
it would seem that his accounta-
bility should be much greater than
where his services have been
gratuitously rendered. " That a
trustee is answerable for negli-
gence, only where it is so gross as
to be evidence of wilful miscon-
duct, is not to be disputed. But
the reason of the rule shows, that
it is not for cases in which tlie
trustee is to receive a stipulated
compensation. It is said that a
trustee, even of a charitj"^, may not
be charged for more than he has
actually received, except for very
supine negligence, and that the
gratuitous nature of the service
distinguishes him from a bailee
for hire But the foun-
dation of the rule fails entirely,
when tlie trust has been accepted
on terms of receiving a stipulated
reward;" Ex parte Gansel, 3
Watts, 443. There would seem,
however, to be a medium degree
of accountability, arising in cases
where the trust has been under-
taken, not, indeed, wholly gratui-
tously, nor yet with any stipulated
reward, but with the expectation
of receiving such compensation as
comes within a court's discretion
to allow, and these are the cases
of most frequent occurrence in
this country, and whose classifica-
tion will be here attempted.

Although as a general principle
of equity, no rule can be more

salutary, and none is more univer-
sally recognized, than that a trus-
tee sliall not profit by his trust
(see the notes to Fox v. Mackreth),
yet when carried to the extent of
denying a reasonable compensa-
tion for his services, it can scarcely
be said to have, at the present
day, any application on this side
of the Atlantic. " The state of
our country, and the habits of
our people are so different, as to
have induced the legislatures of
nearly all the states to introduce
provisions by statute, for compe-
tent remuneration to those to
whom the law commits the care
and charge of the estate of infants
and deceased persons, and the
courts make a reasonable allow-
ance to receivers appointed by
them, besides reimbursing their
expenses. . . . And the equity
of the statute is, by construction,
generally extended to conventional
trustees, when the agreement is
silent ;" Boyd v. Hawkins, 2 Dev.
Equity R. 334.

The rule of Bohinson v. Pett,
was, however, at an early day,
adopted in parts of this country.
In the State of New York, in the
early case of Green v. Winter, 1
Johnson, Ch. 3*?, Mr. Chancellor
Kent declared, that even were he
free from the weight of English
authority, he would greatly hesi-
tate before he undertook to ques-
tion the wisdom of this rule, and
in the subsequently carefully con-
sidered case of Manning v. Man-
ning, lb. 534, the same learned
judge enforced his views by a

*This note was originally- from the pen of Wm. Henry Rawle, Esq. It has
been re-written for the present edition by Angelo T. Freedley, Esq.

ROBINSON V. PETT.

539

reference to the rule of tlie civil
law, and added, "nor does the
rule strike me as so very unjust,
or singular and extraordinary ;
for the acceptance of every trust
is voluntary and confidential ; and
a thousand duties are required of
individuals, in relation to the con-
cerns of others, and, particularly,
in respect to numerous institutions,
partly of a private, and partly of
a public nature, in which a just
indemnity is all that is expected
and granted. I should think it
could not have a very favorable
influence on the prudence and dili-
gence of a trustee, were we to
promote, by the hopes of reward,
a competition, or even a desire for
the possession of private trusts,
that relate to the moneyed con-
cerns of the helpless a;id infirm.
To allow wages or commissions
for every alleged service, how
could we prevent abuse?"

But, as was pertinently said by
Story, " to say that no one is
obliged to take upon himself the
duty of a trustee, is to evade and
not to answer the objection. The
policy of the law ought to be such
as to induce honorable men, with-
out a sacrifice of their private in-
terest, to accept the office, and to "
take away the temptation to abuse
the trust for mere selfish purposes,
as the only indemnity for services
of an important and anxious char-
acter;" Eq.Jur. §1268,n. Such is
the view generally taken through-
out this country ; Barney v. Saun-
ders, 16 Howard (U. S.), 542;
Shirley v. Shattuck, 6 Cushman,
26 ; and though at an early period
some of the states recognized the

English rule, yet in them, as was
the case in New York, its judicial
adoption called forth almost im-
mediate •legislative action, while
in others, the allowance of a com-
pensation to all acting in a fidu-
ciary capacity has either formed a
part of their local common law, or
has proceeded from an equitable
construction of some statute.

The rules upon this subject, are
however, to a great extent so local,
as almost to defy their uniform
classification. In some parts of
the country, statutes have fixed
precisely both the amount of
compensation and the manner m
which it shall be allowed, while in
others they are less exact, some-
times merely declaring the general
principle. As to the latter, how-
ever, courts have endeavored to
form a standard with as much
precision as the varying circum-
stances of each case have admitted,
and in some of the older states,
the allowance of compensation is
reduced to rules, which are gradu-
ally becoming both more precise,
and more general in their applica-
tion.

In New York, the doctrine
adopted by Chancellor Kent in
Green v. Winter and Maiming v.
Manning, supra, met with little
favor, as the decisions were soon
after followed by the Act of 1817,
which made it lawful for the Court
of Chancery, in the settlement of
accounts of guardians, executors
and administrators, to make to
them a reasonable allowance for
their services as such, over and
above their expenses ; Matter of

510 COMMISSIONS OF T B TJ S T E E S AND EXECUTORS.

BoUrtH, 3 Johns. Ch. 43. An
order in chancery, made in, the
same year, (3 Johns. Ch. 630,) re-
duced these provisions 4o some
precision, by directing that the
allowance for receiving and pay-
ing money should be five per cent,
on all sums not exceeding one
thousand dollars — two and a half
per cent, on sums between one
and five thousand — and one per
cent, for all above that amount,
and the revised statutes afterwards
adopted the same rule (2 Rev. St.
93), but by the Act of 1863, the
compensation of executors and ad-
ministrators (which includes guar-
dians ; Foley v. Ugan, n. to 3Ior-
gan v. Hannas, 1'3 Abb. Prac.
Rep. N". S. 362), is increased by
raising the limit upon which two
and a half per cent, is allowed,
from four thousand to nine thou-
sand dollars; Laws of 1863, Ch.
362, §8; 6 New York Stat, at
Large, 126. The revised statutes
also provided that any provision
made by a testator for specific
compensation is to be deemed a
full satisfaction for his services,
unless by a written instrument
filed with the surrogate he elect to
renounce such legacy ; and in
1849, it was further provided, that
in all cases such allowance should
be made for their actual and neces-
sary expenses, as should appear
just and reasonable (3 Rev. St.
180, ed. of 1859). These provi-
sions have been held to be retro-
spective, and, therefore, to apply,
in cases of accounts settled since
its passage, to services performed
before that time ; Baking v. Dem-
ming, 6 Paige, 95.

Although these statutes only
specifically enumerate guardians,
executors and administrators, j'et,
by an equitable construction, their
provisions have been extended to
committees of the estates of luna-
tics ; Robert's Case, 3 Johns. Ch.
48 ; Livingston's Case, 9 Paige,
440 (though not, of course, to
committees of their persons ; In
re Colah, 3 Daly, 530), to trus-
tees ; Meachamy. Sternes, 9 Paige,
403 ; Duffy v. Duncan, 32 Barbour,
590 ; Ogden v. Murray, 39 N. Y.
202 ; and, in the absence of proof
of the services performed, to re-
ceivers ; Muller y. Poiid>Jt, 6 Lan-
sing, 481 ; although as the compen-
sation of a receiver rests within
the discretion of the court, a
higher rate may be awarded ;
Gardiner v. Tyler, 3 Transcript
Ap. 161. In Jewett v. Woodward,
1 Edw. Ch. 199, it seems to have
been thought that this did not ap-
ply to trustees under voluntary
assignments, but in Meacham v.
Sternes, supra, it was said that, in
the absence of all agreement, a
trustee under any express trust
" will be allowed the same fixed
compensation for his services by
way of commissions, as is allowed
by law to executors and guardians,
to be computed in the same man-
ner,'' and, therefore, a trustee under
an assignment for the benefit of
creditors was held to be within the
equity of the statute. The doc-
trine thus announced has been re-
peatedly approved ; Duffy v. Dun-
can, supra ; Goiving v. Howard,
46 Barbour, 586 ; Ogden v. Hur-
ray, supra ; In re Schell, 53 N.
Y. 263 ; and with respect to testa-

ROBINSON V. PETT.

541

mentary trustees, incorporated
into the statute law by the act of
1866 (ch. 115, 6 N. Y. Stat, at
Large, TOO), which provides that
" The surrogate shall allow to the
trustee or trustees the same com-
pensation for his or lier services,
by way of commissions, as are
allowed by law to executors and
administrators, and also all such
allowance for expenses as shall be
just and reasonable," under which
it has been held to be compulsory
upon the surrogate, upon each set-
tlement of a trustee's account, to
allow full commissions ; Pirnie's
Estate, I Tucker, 119.

Where, however, the instrument
creating the trust itself provides
a compensation, this will be its
measure, and, therefore, where a
testator declared that his executors
should " retain and pay to them-
selves out of the rents and income
all costs, charges, and expenses
they have to pay or be put unto
in the fulfilment of this my will,
and a reasonable compensation for
their services,'' it was held that
the compensation was to be de-
termined with reference to the
duties performed, without regard
to the statute ; In re Schell, 53
N. Y. 263. " The object of the
statute," said the court, " is to
furnish a general and arbitrary
rule for cases not otherwise pro-
vided for, but it should not govern
where the testator has, by reason
of peculiar circumstances existing
in reference to his estate, required
extraordinary services on the part
of those to whose care he has con-
fided it, and has specially provided
that their compensation shall be

reasonable, which is equivalent to
declaring that it shall be propor-
tioned to the value of the services
they may render. By such a di-
rection the testator necessarily
confides to the tribunals under
whose jurisdiction the administra-
tion of his estate may come, the
adjustment of the compensation of
his trustees, and this is a duty
which those tribunals must per-
form upon the evidence before
tliem." It is obvious, however,
that this only applies to solvent
estates, and that an insolvent as-
signor cannot, in his assignment,
provide a more liberal compensa-
tion than that allowed by the stat-
ute; Barney v. Griffin, 2 Com-
stock, 3T2 ; as otherwise, under
the name of commissions fraudu-
lent preferences might easily be
created, and in Nichols v. ilf' Ewen,
21 Barb. 66, a provision for the
payment of " a reasonable counsel
fee" to the assignee, in addition to
the other expenses and commis-
sions, was held to render the in-
strument void as to creditors, as
being apparent evidence of an in-
tent to defraud them.

As to the right to compensation,
no distinction exists between realty
and personalty ; De Feyster^s
Case, 4 Sandf. Ch. 514. '■ It seems
to have been supposed," said
Davies, J., in Wagstaffe v. Lowerre,
23 Barb. 224, " that the trustee in
this case is limited to liis commis-
sions on that part of the estate
which has become personal prop-
erty ; and this doubtless has arisen
from assuming such to be the in-
tent of the statute in the case of
executors and administrators. The

542 COMMISSIONS OF TRUSTEES AKD EXECUTORS.

statute alludes to personal estate,
simply because that is all executors
and administrators have in charge.
In reference to them, the statute
allows commissions on all sums of
money that they may receive and
pay out. But commissions on the
whole amount of the trust estate
in their hands, under their control,
and managed by them, was in-
tended, and has been uniformly
allowed, even though a very small
part was in money actually re-
ceived or paid out. If the estate
of the deceased consisted of stocks,
or bonds and mortgages, it might
be and often is the case, that the
executor actually receives and
pays out only the interest or in-
come ; yet he would be entitled to
and does receive his commissions
upon the whole amount of the es-
tate. The compensation is given
to him for his care and manage-
ment of the estate, and not for the
simple act of receiving and paying
out. And I am unable to see why
the trustee, in this case, should be
restricted to his commissions upon
the sums of money he receives and
pays out, and the personal prop-
erty which he transfers. The rea-
sons for his compensation apply,
in my judgment, with greater force
even, in regard to real estate than
personal. The responsibility and
difficulty of managing a trust es-
tate, consisting of stocks, bonds
and mortgages, are far less than
that consisting, like the present,
of unproductive real estate, lying
in the suburbs of a large and
growing citj^. Tliis property has
been subject to the system, pre-
vailing here, of local improve-

ments, by opening streets and ave-
nues, regulating and paving streets,
constructing sewers and other like
opei'ations. It has always been
subject to annual taxation, and
constant watchfulness is required
to save property thus circum-
stanced from total loss and confis-
cation."

In JZ' Whorter v. Benson, Hopk.
28, it was held, that the discretion
of the court was limited as to the
manner of compensation, and that
it had no power to sanction any
specific charge or per diem allow-
ance. Nor was such a mode of
compensation deemed at all ex-
pedient. "It is evident," said
Sandford, Ch., " that all attempts
to assess the value of services per-
formed in these trusts, by placing
each case upon its peculiar circum-
stances and intrinsic merit, must
terminate in a power of mere dis-
cretion, a discretion to a great ex-
tent merely arbitrary. This mode
of assessment would be so ex-
tremely uncertain in its operation,
that it would frequently defeat the
very justice which it proposes to
attain ; and its certain effect would
be, to produce extensive litigation
in adjusting the rewards of execu-
tors, administrators and guardians.

. . . It has also been pro-
posed, to make the compensation
depend upon time, by making an
allowance for each day employed
in the business of the trust. This
would indeed be a universal rule,
embracing all services ; but the
principle would be most pernicious.
No rule could be more dangerous
than that which should declare that
every guardian, executor and ad-

ROBINSON V. PETT.

543

ministrator, shall receive a daily
allowance for time employed in his
trust. Much of the utility of tliese
trusts always consists in attention,
superintendence, fidelity, and econ-
omy ; and cares and services like
these cannot be measured with any
exactness by days or months. The
duties of these trusts do not, in
general, require entire days of at-
tention, but they are usually per-
formed, as occasion may require,
with little or no interruption of
the private pursuits of tlie trus-
tee. The injustice of allowing
daily wages, the temptation to
abuse which would be offered by
such a rule, and the difficulty of
preventing abuses in its execution,
are decisive objections to its adop-
tion. If we regard the duration
of these trusts, this fact aflfirds no
rule of compensation. One of
these trusts continuing five years,
niay be far more arduous and may
require much greater services than
another extending to fifteen years,
for its entire execution. The idea
of compensation measured merely
by time, must therefore be re-
jected."

The rule of this case has been
subsequently approved, both upon
principle, and as a correct inter-
pretation of the statute ; Beviser's
note to § 54, tit. 3, ch. 6, pi. 2 ;
Vanderheyden v. Vanderheyden,
2 Paige, 288 ; Valentine v. Valen-
tine, 2 Barb. Ch. 438 ; though in
Jewett V. Woodward, 1 Edw. Ch.
199 (which, however, was decided
before the doctrines relating to
this subject were well settled),
a per diem allowance was given
to a trustee under an assign-

ment for the benefit of creditors.
Indeed, notwithstanding the em-
phatic opinion of Chancellor Kent,
in Green v. Winter, supra, p. 538,
the rule adopted by him in that
very case made the distinction be-
tween it and the general current of
American authority rather one of
kind than of principle, as. he gave
a per diem allowance to the trustee,
not, indeed, as compensation, but
by way of indemnity.

Compensation to a fiduciary be-
ing thus the subject of positive
enactment in New York, seems to
be thought a matter of right and
not of grace, and in cases coming
within the statute the surrogate
has no discretion to refuse to al-
low it ; Halsey v. Van Amringe, 6
Paige, 12 ; Dakir v. Demming, Id.
95. Hence a receiver or guardian
when required by order of court
or act of Assembly to settle an-
nual accounts is entitled to full
commissions upon each settlement ;
In re Bank of Niagara, 6 Paige,
216; Morgans. Hannas, 49 N. Y.
667 ; S. C. more fully reported, 13
Abb. Prac. Rep. N. S. 369. So
executors have been allowed com-
missions even when charged with
compound interest ; Vanderheyden
V. Vanderheyden, 2 Paige, 28Y ;
Rapalje v. Norsworthy, 1 Sandf.
Ch. 399 ; or when guilty of gross
negligence amounting to a breach
of trust ; Meacham v. Sternes, 9
Paige, 398 ; and this has been car-
ried to the extent of allowing com-
missions to a trustee ex maleficio;
Iddings v. Bruen, 4 Sandf. Ch.
223, 268 ; Cowing v. Howard, 46
Barb. 579 ; but compensation was
obviously refused in a case where

544 COMMISSIONS OF TRUSTEES AND EXECUTORS.

the directors of a company consti-
tuted themselves trustees of the
same corporation ; Ogden v. Mur-
ray, 39 N. Y. 202. Commissions
have also been allowed to a trustee
upon the payment of a debt due to
himself; MIeacham v. Sternes, 9
Paige, 399; Hosack v. Rogers, Id.
462 ; and upon amounts charged in
the inventorj', but which the ex-
ecutor did not receive ; Meacham
V. Sternes, supra ; and where the
executor instead of calling in the
bonds and assets of the estate,
merely transferred them to the
trustee of the legatees, with their
assent; Cairns v. Ghaubert, 9
Paige, 161 ; and where, being dis-
charged from his trust, he trans-
ferred the property to his successor
in the same condition in which he
received it from his predecessor ;
De Feyster's case, i Sandf. Ch.
514 ; although in the very recent
case of Foley v. Egan, 13 Abb.
Prac. Rep. N. S. 361, n. (the facts
of which are not reported), the
Supreme Court apparently refused
to allow a guardian upon retiring
from the trust, commissions upon
such portions of the capital as were
invested by his predecessor.

On the other hand, commissions
have been refused where the execu-
tor has died before converting the
personalty into money for the pur-
poses of administration ; Cairns
V. Chaubert, 9 Paige, 160 ; nor will
they be allowed upon the transfer
of stock specifically bequeathed
Schenck v. Dart, 22 N. Y. 420
Burtis V. Dodge, 1 Barb. Ch. 78
nor where it appears that the trust
has been expressly undertaken
from motives of benevolence ; Ma-

son V. Roosevelt, b Johns. Cli. 534.
So in order to save an estate from
double commissions by reason of
frequent changes of trustees, the
vice chancellor held, in Jones'
case, 4 Sandford Ch. 616, upon
English authority, that a trustee's
petition for his discharge, upon
no other cause assigned tlian his
wish to be relieved from his duties,
would only be granted by his pay-
ing the costs of the petition and
appointment of his successor, and
by being allowed no commissions
upon the capital of the estate ; and
see Foley v. Egan, 13 Abb. Prac.
Rep. N. S. 361, n.
■ It will be observed, that the
statute does not specify how much
is to be allowed for receiving, and
how much for paying out the
amounts on which commissions are
to be charged ; " and it may some-
times happen," as was said by
Walworth, Ch., in Kellogg's case,
T Paige, 26'?, " that upon a loss
of the fund, without any fault of
the guardian or other trustee, or
upon a change of trustees, the
guardian or trustee may be entitled
to compensation for one service
and not' for the other." The rule
in genei'al was, therefore, said to
be, " to allow one-half commission
for receiving and one-half for pay-
ing out the trust moneys." In
that case, the guardian had been
allowed commissions for receiving
and paying out the amount of a
legacy bequeathed to his ward, al-
though its principal part had been
invested by him. " This mode of
computing the commissions would
be correct, if the infant were now
of age, and this was a final settle-

ROBINSON V. PETT.

545

ment of the account of the guar-
dian, with a view to turn over the
whole fund to liis ward. . . .
But it certainly was not the inten-
tion of the Legislature, or of this
court, to sanction the principle of
allowing to the guardian or trustee
full commissions upon every re-
ceipt and reinvestment of the trust
fund committed to his care and ar-
rangement. The result of such a
principle of computing the allow-
ance for commissions, if the invest-
ments were made from year to
year, and the accounts rendered
annuallj', would be lo give the
trustee his full commissions upon
the principal of the trust fund
every year, as well as upon the in-
come received and expended from
time to time. . . . The proper
rule, therefore, for computing the
commissions upon the first annual
statement, or passing of the ac-
counts of the guardian, receiver
or committee, who is required to
render or pass his account periodi-
cally, during the continuance of
the trust, is to allow him one-half
of the commissions, at the rates
specified in the statutes, upon all
moneys received hy him as such
trustee, other than the principal
moneys received from investments
made by him on account of the
trust estate. And lie is also to be
allowed his half commission on all
moneys paid out by him in bonds
and mortgages, stocks, or other
proper securities, for the benefit,
of the trust estate under his care
and management, leaving the resi-
due of his half commissions upon
the fund which has come to his
hands, and which remains invested
VOL. II. — 35

or unexpended at the time of ren-
dering or passing such account for
future adjustment, when such funds
shall have been expended, or when
the trustee makes a final settle-
ment of his account upon the ter-
mination of the trust. And upon
every other, periodical statement
of the account during the continu-
ance of the trust, half commissions
should be computed in the same
manner uJ)on all sums received as
interest or income of the estate, or
as further additions to the capital
thereof, since the rendering or
passing of his last account, and
half commissions upon all sums
expended, except as investments."
See also. In re Bank of Niagara,
6 Paige, 216; Livingnton's case,
9 Id. 403 ; Morgan v. Hannas, 13
Abb. Prac. Rep. N. S. 369 ; S. C,
49 N. Y. 661. " And where," said
Walworth, Ch., in Hosackv. Sogers,
9 Paige, 468," an executor or trus-
tee who has a large claim against
the estate, and is entitled to a pre-
ference, receives and applies mo-
nej's in part payment of principal
and interest, if the amount so paid
is large, it appears to be equitable
that his commissions on the amount
so applied should be first deducted,
so as to give him the interest on
the balance of the principal of his
debt from that time, after deduct-
ing the commission on such partial
payment. But where that is done,
the subsequent commissions should
be computed in such a manner that
the aggregate amount of the whole
commissions allowed will not ex-
ceed the statute allowance upon
all his receipts and disbursements."
Where the trustees are more

546 COMMISSIONS OF TRUSTEES AND EXECUTORS.

than one in number, the commis-
sions are computed upon the ag-
gregate sums received and paid
out by all of them collectively,
and not upon the amounts received
and disbursed by each individually.
In Valentine v. Valentine, 2 Barb.
Ch. 430, it was intimated that the
surrogate could apportion the com-
missions according to the services
performed, but this has since been
doubted ; White v. Bullock, 20
Barb. 99 ; S. G. on appeal. 15 How.
Prac. Rep. 104 ; and as the act of
181 7 gave the surrogate no express
power of apportionment, it has
been held that, in the absence of
any action on his part, a court of
law possessed no such jurisdiction ;
and hence in an action by one ex-
ecutor against his co-executor for
an equal share of the commissions
charged in the account, the plain-
tiff, notwithstanding he had ren-
dered no services whatever while
the defendant had solely managed
the trust, was held to be entitled
to recover ; White v. Bullock, 15
How. Prac. Rep. 103, reversing S.
C. 20 Barb. 99. By the act, of 1849,
however, (Ch. 150, § 1, 2 N. Y.
Stat, at Large, 95) it is provided,
that in the case of two or more ex-
ecutors or administrators, the sur-
rogate shall apportion the commis-
sions " according to the services
rendered by them respectively,"
and a somewhat similar enactment
prevails with regard to trustees, it
being provided that, " If there be
more than one trustee, and the es-
tate be insuflScient to give full
commissions to each trustee, the
surrogate shall apportion such
compensation among the said trus-

tees according to the services ren-
dered by them respectively ;" but
the practice prevailing prior to the
act of 1849, has, with respect to
large estates of personalty, been
re-enacted by the act of 1863, which
declares that, " If the personal es-
tate of the testator or intestate
shall amount in value to not less
than one hundred thousand dollars,
over and above all debts and lia-
bilities of the testator and intes-
tate, and there shall be more than
one executor and administrator,
then, instead of apportioning the
compensation hereinbefore men-
tioned among such executors or
administrators, each and every of
such executors or administrators
shall be entitled to, and shall be
allowed the full amount of com-
pensation to which he would have
been entitled by the provisions of
this act if he had been sole execu-
tor or administrator ; provided,
however, that the whole amount of
the compensation of such execu-
tors or administrators shall not
exceed what would be by the pro-
visions hereof paid to three execu-
tors or three administrators ; and
that if there shall be more than
three executors or administrators,
then, what would be the compensa-
tion of three executors or three
administrators shall be divided
among them in equal shares," Laws
1863, ch. 361 ; 6 New York Stat,
at Large, 127 ; and in cases coming
within this provision, full commis-
sions will be given to all irrespec-
tively of the services rendered ;
Nest's Estate, 1 Tucker, 130.

The allowance to a fiduciary
cannot, in the absence of any pro-

ROBINSON V. PETT.

647

visions to the contrarj', exceed the
amount prescribed by tlie statutes,
even though he perforins services
not falling within his ordinarj^ du-
ties and which materially benefit
the estate, as the word " commis-
sions" is construed to include not
merely a per centage, but a full
compensation measured by a fixed
standard for all personal services
rendered to the trust ; Stevenson
V. Maxwell, 2 Sandf. Ch. 284;
Vanderheyden v. Vanderheyden, 2
Paige, 288. Hence, a receiver is
not allowed additional compensa-
tion by reason of having acted as
counsel for himself and his co-re-
ceiver ; In re Bank of Niagara, 6
Paige, 213 ; so of a trustee ; Binsse
V. Paige, 1 Abb. Ct. Ap. Dec, 138 ;
so, where an executor acting, at the
request in writing of his co-execu-
tors and the adult legatees, as
counsel for the estate, rendered
important services greatly increas-
ing its value, his claim for fees
was disallowed as against those not
sui juris ; Munn^s , Estate, 1
Tucker, 136; affirmed. Collier v.
Munn, 41 N. Y. 14:^ ; so, too, an
executor will not be allowed addi-
tional commissions for acting as
agent ; Fisher v. Fisher, 1 Bradf.
335 ; unless a special authority be
given by the will ; Clinch v. Ec-
ford, 8 Paige, 412 ; Oilman v. Gil-
man, 2 Lansing, 1 ; nor can an ex-
ecutor receive extra compensation
as trustee for fulfilling the duties
of a trust attached to liis office of
executor ; Holley v. S. O., 4 Edw.
Ch. 284 ; Valentine v. Valentine, 'i
Barb. Ch. 430 ; Drake v. Price, 1
Selden, 430 ; Wester field v. Wester-
field, 1 Bradf. 198 ; Mann v. Law-

rence, 3 Id. 424 ; Lansing v. Lan-
sing, 45 Barb. 182.

In Morgan v. Morgan, 39 Barb.
20, a guardian was allowed .to
charge for mechanical labor per-
formed by himself upon the prop-
erty of his ward, as the Supreme
C(mrt, while conceding that the
compensation of a guardian was
governed by the rule applicable to
executors, yet held these rules not
to be " so narrow and restricted
that they deny all compensation to
a guardian for services of a per-
sonal or professional character,
rendered by him for the benefit of
the ward, and in doing which he
has bestowed personal labor and
incurred actual expenses, which
have been useful and serviceable
to the estate," but this is clearly
opposed to the weight of author-
ity, and was subsequently over-
ruled by the Court of Appeals ;
Morgan v. Hannas, 13 Abb. Prac.
Rep. N. S. 361 ; S. C. 49 N. Y.
66Y.

But although a fiduciary cannot
himself by acting as counsel, agent
or the like, or by any other extra
services, receive a compensation in
excess of the statutory provision,
yet the courts have shown no dis-
position to restrict the employment
of others in such relations, if neces-
sary for the trust, and hence ex-
ecutors have been allowed salaries
paid to clerks, agents, &c., when
required in the management of the
estate ; Mc Whorter v. Benson,
Hopk. 28 ; Vanderheyden^. Van-
derheyden, 2 Paige, 28T; Cairns
V. Chaubert, 9 Id. 164 ; In re Liv-
ingston, Id. 442 ; Glover v. Holley,
2 Bradf. 291 ; Duffy v. Duncan, 32

548 COMMISSIONS OF TRUSTEES AND EXECUTOKS.

Barb. 591 ; as also for other gen-
eral necessarj' expenses ; Downing
V. Marshall, 3Y N. Y. 380.

As to costs and counsel fees, it
is familiar that, in England, it
rests within the discretion of the
Court of Chancery to allow trus-
tees, in action brought by or
against them, to charge the estate
with their costs " as between soli-
citor and client," which, of course,
include proper counsel fees, upon
the doctrine that a trustee acting
in good faith, is entitled to full in-
demnity for all proper and neces-
sary expenses. This rule also
exists in New York, not having
been touched by legislation ; hence
an executor asliing, upon reasona-
ble grounds, for a construction of
the will, or for directions as to the
disposition of the estate, is al-
lowed, in addition to the taxable
costs provided by the code, to
payment out of tlie estate of all
reasonable expenses, including his
counsel fees. In re Howe, 1
Paige, 214; Irving v. 31c Cay, 9
Id. 533 ; 'Downing v. Marshall,
31 N. Y. 380, and in the
very recent case of Wetmore v.
Parker, 52 N. Y. 466, this doc-
trine was affirmed, the court say-
ing " whether the rule should be
applied to ca^es of executors asls-
ing for a construction of a will
merely, and whose accounts must
be rendered to, and passed upon
by, the surrogate, or. limited to
cases where tlie fund is defiLiSely
and finally disposed of by the
court, miglit, as an original ques-
tion, well be doubted ; but as the
decision \_Downing v. Marshall]
extends the rule to cover the for-

mer, we are not inclined to dis-
turb it."

So, where an executor in good
faith, and under advice of counsel,
brings an action for the purpose of
protecting the estate from loss,
the expense of the litigation will
be allowed him, although his at-
tempt was unsuccessful, and the
result proved that other modes of
proceeding would have been better ;
Collins V. Hoxie, 9 Paige, 81 ; so,
counsel fees are allowed to trus-
tees who have not improperly or
unnecessarily litigated ; Jewett v.
Woodward, 1 Edw. Ch. 200 ; but,
obviously, not to those guilty of
negligence, fraud or wilful mis-
conduct ; Willcox V. Smith, 26
Barb. 330; Si-encer v. Spencer,
11 Paige, 299; Smith v. Bock-
afeller, 3 Hun, 295 ; nor where
the professional services are more
for the benefit of the trustee than
of the estate ; Meacham v. Sternes,
9 Paige, 401 ; and, therefore, exe-
cutors are not permitted to charge
the fund with the expenses of their
unsuccessful resistance to an appli-
cation for an order requiring them
to account, nor for the expenses
incurred in proceeding against
them for contempt in not so ac-
counting ; Oilman v. Oilman, 2
Lansing, 1. Nor can the estate
be charged with fees paid by the
executor for services rendered upon
the final settlement of their ac-
counts before the surrogate, nor
for drawing up the accounts in a
proper form for such settlement ;
Burtis V. Dodge, 1 Barb. Ch. 91 ;
Willcox V. Smith, 26 Barb. 300.
'' These rules '' it was said in
Willcox V. Smith, " harmonize,

ROBINSON V. PBTT,

549

and they are founded on solid
reason. It is not often that exe-
cutors or administrators need the
services of counsel in making
final settlements of their accounts
before the surrogate, if they have
properly managed the estates in
their hands, and are diligent in
making settlements ; and when
they are negligent, or permit their
accounts to become confused, or
suffer the estate under their con-
trol to decrease unnecessarily, they
ought to pay counsel out of their
own funds for assisting them in
closing up the trusts. And the
reasons are too obvious to be
stated which uphold the rule that
permits the surrogate to allow
them all actual and necessary ex-
penses incurred by them, which
appear reasonable and just, in
bringing and defending actions in
good faith, with the expectation
of benefiting the estates under
their control, and in managing
such estate solely for the benefit
of those interested in them."

Executors, however, will not be
justified in pajdng unreasonable or
extortionate charges ; Frith v.
Cavipbell, 53 Barb. 325 ; and the
discretion of the court below in
granting an allowance for counsel
fees, has been held to be the sub-
ject of review ; Downing v. Mar-
shall, BY N. Y. 394 ; though this
has recently been doubted ; Wet-
more V. Parker, 62 N. Y. 467.
Nor is a master in taking an ac-
count in anticipation, of a decree,
and before the question Of costs
has been disposed of by the court,
authorized to make allowances for
counsel fees in that suit, unless di-

rected to do so by the order of
i-eference ; Hosack v. Rogers, 9
Paige, 463.

But while it is thus well settled
that those suing or defending iu
autre droit, are, independently of
legislation, entitled to full indem-
nity from the estate for their
proper expenditures, yet it is
equally well settled that the other
parties to the action can only re-
cover the statutory taxable costs ;
Hahey v. Van Aniringe, 6 Paige,
12 ; Rose v. Association, 28 N. Y.
184; Downing v. Marshall, 37 Id.
380.

In Pennsylvania, although
compensation to executors has
been said to "extend as far back as
tlie testamentary law can be traced ;
Wilson v. Wilson, 3 Binn. 560 ;
yet the only statutory provision
upon the subject was an act passed
in 1713 (1 Dall. Laws, 99), which
authorized orphans' courts to order
the payment by executors, of such
reasonable fees for copies and " all
other charges, trouble and attend-
ance which any officer or other
person should necessarily be put
to," as the court sliould deem just,
and by an equitable construction
of tills statute, its provisions were
extended to trustees ; Frevost v.
Gratz, 3 Wash. C. C. R. 434. With
respect to trustees under assign-
ments for the benefit of creditors
the act of 24th March, 1818, pro-
vided that the court should allow
the assignee " such pay or com-
mission for his trouble and ser-
vices, as the court, in its discretion,
might think reasonable ;" and the
revised statute of 14th June, 1836,

550 COMMISSIONS OF TRUSTEES AND EXECUTORS.

which has supplied all former en-
actments, lias provided, not only
with reference to assignees for the
benefit of creditors, but to trus-
tees generally, "that it shall be
lawful for the court, whenever
compensation shall not have been
otherwise provided, to allow such
compensation to assignees and
other trustees, out of the effects in
their hands, for their services, as
shall be reasonable and just."

Compensation to a fiduciary thus
resting in the discretion of the
court, is, therefore, purely matter
of grace ; Ex parte Cassel and
Spayd, 3 Watts, 443 ; and will be
withheld whenever the conduct of
the party merits such a punish-
ment. " Although it is perfectly
just and reasonable," as was said in
Swartsivalter's Accounts, 4 Watts,
79, " that every one acting under
proper authority in the character
of a trustee, should receive a fair
compensation for his services, yet
it is of infinite importance to the
public, as well as to the individ-
uals interested in the execution of
the trust, that he should perform
the duties of it with the most strict

honor and integrity

Now it is certainl}' inconsistent
with every principle of retributive
justice, that a trustee who betrays
the confidence reposed in liim,and
attempts to defraud the cesiuis
que trust, by appropriating the
trust funds to the discharge of a
pretended claim of his own, should
receive the same reward that is
due to virtue only, and given as a
remuneration for services rendered
with a view to advance the inter-
ests, of the cesiuis que trust. On

principles of policy, as well as
those of morality and justice, in
order to insure a faithful and hon-
est execution of the trust as far as
practicable, it would be inexpedi-
ent to allow to the trustee who has
acted dishonestly, and with an in-
tent fraudulently to convert the
trust funds to his own use, the
same compensation with him who
has acted uprightly in all respects,
and with a single view to promote
the true interests of his cestuis que
trust. The withholding compen-
sation altogether in the first case,
and bestowing it only in the latter,
may have a tendency to deter trus-
tees from attempting anything un-
fair in the execution of the trust,
and induce them, at the same time,
to perform their duties with com-
mon honesty, at least, if not with
all the skill and diligence that
might possiblj' be applied ;" and
hence it has been consistently held,
that compensation will be denied
to fiduciaries who have shown a
want of good faith and ordinary
care and diligence in the execution
of their trust ; Stehman's Appeal,
5 Barr, 418. Thus commissions
are obviously forfeited where an
executor misapplies the assets of
the estate by employing them in
his business ; Bobinett's Appeal,
12 Casey, IH; or assumes a posi-
tion hostile to the trust ; Drys-
dale's Appeal, 2 Harris, 531 ;
Greenfield's Estate, 12 Id. 232 ;
Landis v. Scott, 8 Casej', 498 ;
Stearly's Appeal, 2 Wright, 525 ;
or sets up a spurious or unfounded
claim ; Swartswalter's Accounts ;
RohinetVs Appeal, svpra ; or re-
sists, for his own advantage, the

ROBINSON V. PETT.

'551

payment of a just one; Wit-man's
Appeal, 4 Casey, 396 ; or, by his
wilful misconduct, lessens the in-
come ; BerryhilVs Appeal, 11
Casey, 245. So where an assignee
for the benefit of creditors, having
purchased debts at a discount,
charged the estate with the full
value of the same ; Hermstead^s
Appeal, 10 P. F. Smith, l09 ; so,
too, where the estate was dimin-
ished by reason of his assignee
having allowed the proceeds thereof
to be paid to his sureties as an in-
demnity for prospective loss ; Dy-
ott's Estate, 2 Watts & Serg. 565
(and the same wholesome rule was
applied to the case of an attorney
who neglected to pay over money
received for his client until sued
by the latter ; Bredin v. King-
land, 4 Watts, 420) ; and, gener-
ally, compensation is denied when
the accounts of the fiduciary are
either so erroneously or fraudu-
lently kept, that they fail to dis-
close the true state of the trust ;
Swartswalter^s Account, 4 Watts,
19 ; Stehman's Appeal, 5 Barr,
413; McGahanh Appeal,^ Barr,
59 ; Cassey's Estate, 11 Wright,
421 ; Wistar's Appeal, 4 P. F.
Smith, 60 ; LartiVs Appeal, 8 Id.
142; Hermstead^s Appeal, 10 Id.
429 ; Norris' Appeal, 21 Id. 126 ;
Morton's Estate, 1 Philada. 490 ;
for " the dutj"^ of a trustee or an
agent in charge of property to
keep regular and correct accounts,
is imperative, and if he does not,
every presumption of fact is against
him. He cannot impose upon his
principal, a cestui que trust, the
obligation to prove that he has ac-
tually received what he might have

received, and what it is his duty
to endeavor to obtain. By failing
to keep and submit accounts, he
assumes the burden of repelling
the presumption, and disproving
negligence and faithlessness ;"
Landis v. Scott, 8 Casey, 498.

But, on the other hand, in the
absence of any evidence of actual
fraud, compensation will not be
refused to executors for a mere
mistake of judgment in the con-
struction of their testator's will ;
Myer's Appeal, 12 P. F. Smith,
109; or for an error in distribut-
ing the estate, when no practical
loss results ; Brennan's Estate, 15
P. F. Smith, 16 ; so, where an ex-
ecutor deposited the funds of the
estate in his private bank account,
but obtained no benefit therefrom,
the court, while expressing strong
disapprobation of the practice,
yet allowed commissions thereon ;
Parker's Estate, 14 P. F. Smith,
307.

i pon similar doctrines necessa-
rily depends the right of a fiduci-
ary to charge the subjects of his
trust with expenses incurred in
actions brought by or against him.
Necessary and reasonable costs,
including counsel fees, will, there-
fore, be allowed to one acting iu
good faith for the apparent benefit
of the estate, "on the principle
that a trust estate must bear the
expense of its administration ;"
Trumper's Appeal, 3 Watts &
Serg. 443 ; Pusey v. Glemson, 9
Serg. & Rawle, 204 (where tiie fund
was charged with counsel fees for
advice as to the manner of stating
the accounts) ; Drysdale's Appeal,
2 Harris, 531 ; Beck v. Ulrick, 4

552 COMMISSFONS OP TRUSTEES AND EXECUTORS.

Id. 500 ; Gallender v. Keystone Go.
11 Id. 411 ; Heckert's Appeal^ 12
Id. 483 ; Lowrie's Appeal^ 1 Grant,
313; Wilson's Appeal, 5 Wright,
94 ; McElhenny'g Appeal, 10 Id.
349 ; Grave's Appeal, 14 Id. 193.

Such allowances, however, will
be denied where the litigation is
conducted for the benefit of the
fiduciary ; SterreWs Appeal, 2 Pa.
426 ; Brinton's Estate, 10 Barr,
409 ; Withers' Appeal, 1 Harris,
582; JRaybold v. Rayhold, 8 Id.
308 ; Martin's Appeal, 1 1 Id. 433 ;
Witman's Appeal, 4 Casey, 316 ;
Stephens' Appeal, 6 P. F. Smith,
409 ; or is caused by his miscon-
duct ; Berryhill's Appeal, 11 Ca-
sey, 245 ; Gable's Appeal, 12 Id.
395 ; or by his assertions of un-
founded demands ; Sterrett's Ap-
peal, 2 Pa. 419; In re Harlan, 3
Pa. Law Jour. 116 ; Bell's Estate,
2 Parsons Eq. 200 ; or, when in pos-
session of assets, by resisting the
paj'ment of just claims ; Callaghan
V. Ball, 1 Serg. & Rawle, 246
Armstrong's Estate, Q Watts, 236
Gossner's Estate, 6 Wharton, 401
or, obviously, by the presentation
of erroneous or fraudulent ac-
counts; Burr V. McEwen, Baldw.
164 ; Landis v. Scott, 8 Casey,
504; Lamb's Appeal, 8 P. P.
Smith, 143 ; Norris' Appeal, 21
Id. 106 ; though they have been
allowed when the errors in the ac-
count were either unintentional or
in favor of the estate ; Yoder's Ap-
peal, 9 Wright, 394; McElhenny's
Appeal, 10 Id. 348. In Parker's
Estate, 14 P. F. Smith, 308, the
court, while allowing commissions
to an executor who had mingled
the funds of the estate with his

own money, yet imposed the costs
of the audit upon him.

" Where an estate is so situated
that legal advice is proper to direct
the course of the executors, or
where they must bring suits to re-
cover part of the estate, or defend
suits brougiit against them, coun-
sel must be employed, and where
they are employed to obtain what
is honestly supposed to be the
rights of the estate, the estate
ought to pay the reasonable coun-
sel fees. But where executors ne-
glect to settle and pay, and are
sued by creditors, or cited by heirs,
and employ counsel to defend them
in their iniquity', no counsel fees
should come from the estate. The
man who is doing wrong, must
himself pay the expense of that
wrong ; " Sterrett's Appeal, 2 Penn.
426. In Robinett's Appeal, 12
Casey, 114, an administratrix sur-
charged with the profits of a busi-
ness carried on with the funds of
the intestate, was yet allowed the
expenses consequent upon the en-
suing litigation, and in Smith's
Appeal, 4 Wriglit, 424, the same
allowance was made to an execu-
tor, when the balance originally
charged against him was dimin-
ished upon each subsequent bear-
ing, but these cases must be re-
garded as exceptional.

With respect to costs incurred
by an executor in an issue devisa-
vit vel non, or in otherwise sup-
porting the will of his testator, it
was held in the early case oi Brad-
ford V. Boudinot, 3 Wash. C. C.
R. 122, that the executor in that
case was not only authorized, but
that it was his duty, believing the

ROBINSON V. PETT.

553

will to be that of his testator, to
support the decision of the regis-
ter in its favor, and that lie was
entitled to the aid of the estate to
discharge all reasonable costs and
expenses incurred on that account.
So, in the later case of Oeddis'
Appeal^ 9 Watts, 284, it was said
that an executor, having proved
the will, was bound to support it
against the attack of those who
claimed an opposite interest ;
though the decision was only to
the point that this must be deemed
his duty, unless the devisees and
legatees chose to abandon their
claims under it, and required him
to yield to their opponent, and it
was considered to be hard to make
him pay out of his own pocket,
expenses incurred apparently for
the benefit of others. In the pre-
vious case, however, of Koppen-
hoffer V. Isaacs, 1 Watts, 110, it
had been briefly held, that the
costs of a devisavit vel non must
be borne by the parties who liti-
gated for their particular interests ;
and the recent cases have denied
the position that an executor is
bound at all events to support his
testator's will. " Generally, the
ordinary costs and expenses in-
curred by him," as was said in
Mumper's Appeal, 3 Watts &
Serg. 443, " in either prosecuting
or defending a suit, as executor,
for the benefit of the estate, are to
be paid out of it. This would
seem to be right upon the general
principle that a trust estate must
bear the expense of its administra-
tion. But suppose, in this case,
that the issue joined for the pur-
pose of proving the validity of the

will, had been decided against the
executor, can it be imagined that
be would be entitled to retain out
of the estate which had come into
his hands, not only the legal costs
of the issue for which judgment
had been rendered against him, but
likewise the $600 paid by him to
counsel for their advice and pro-
fessional services given in order to
sustain the will ? As regards the
quantum of the estate, it is a mat-
ter of indiflference whether there
be a will or not. Will or no will,
is a question which cannot affect
the estate, in this respect, in the
slightest degree ; but it may be,
and generally is a matter of great
interest to those who claim as lega-
tees or devisees under the writing
purporting to be a will. They are
the only persons interested in
establishing it as a will. While
on the other hand, the heirs at law,
or next of kin to the deceased, who
are either excluded by the writing
from receiving any portion of the
estate, or as much of it as they
would be entitled to in ease of in-
testacy, are the persons principally
interested in opposing the estab-
lishment of the writing as a will.
If the person appointed by it as
executor, be named also as a lega-
tee or devisee, then, as such, he
may be deeply interested also in
establishing it to be the last will
of the deceased. But it is clear
that creditors and the rest of the
world have no interest whatever in
the question. It would, therefore,
seem to be just, as well as equita.
ble, that those who have an imme-
diate and direct interest in the
question, should be left to contest

554 COMMISSIONS OP TRUSTEES AND EXECUTOKS.

and bear all the costs and cliarges
attending it. It ought to be left
to them to employ counsel or not,
as thej- please ; and consequently to
bear tlie expenses of doing so. If
left to those named in the writing
as legatees, or devisees, to employ
counsel, when thought advisable,
they can, bj' agreement among
themselves, apportion the expenses
of it according to their respective
interests, which would certainly be
both equitable and just. But if it
be left to the person or persons
named in the writing as executors,
who have no other interest in it,
to employ and pay counsel out of
the estate for their services ren-
dered in establishing the will, it is
not only leaving it to persons who
have no private interest in the
matter to restrain them from being
prodigal at the expense of those
immediately interested in estab-
lishing the writing as a will, but it
will, wherever tliere are residuary
legatees or devisees, throw the
whole expenses upon them, if their
interest should be suflflcient to
meet it ; and if not more than
sufficient, would leave them noth-
ing. This, if just, would certainly
not seem to be equitable. The
person named as executor in the
writing, when advised that its
validity as a will is about to be
Contested, ought to give notice to
those who are named in it as lega-
tees or devisees, so that thej^ may
employ counsel, if deemed requi-
site, or authorize him to do so at
their expense. If they, after being
so notified, do not choose to em-
ploy counsel or authorize &nj to
be employed on their behalf, they

must abide the consequences, and
will have no reason to complain if
the writing be not established as a
will, seeing they were not willing to
encounter the expense with which
the employment of counsel would
have been attended." And this de-
cision was, in the subsequent case
of Eoyer's Appeal, 1 Harris, 5t3,
entirely approved and followed.

So where there is a contest be-
tween the executor and the dis-
tributees; Heister's Appeal,*! Barr,
457 ; and it is, of course, quite clear,
as was held in Dietrich's Appeal, 2
Watts, 332, that an administrator
pendente lite who, of course, has
nothing to do in his official capa-
city with such a contest, cannot
charge the expenses of it in his
account. (See to the same eflfect
in Ohio, Andrews v. Andrews, T
Ohio S. R. 150, infra p. 596.)

These cases are distinguishable
from Scotfs Appeal, 9 Watts &
Serg. 100, where the whole estate
having been devised to a charity,
the executor was allowed counsel
fees paid by him in opposing pro-
ceedings instituted for the purpose
of escheating the estate, as the
executor litigated "for the inter-
est of the party who got the whole
estate by the litigation, and who
then refused to reimburse him for
his expenses." See the distinc-
tion noticed in Royers^ Appeal, 1
Harris, 573.

In Greenfield's Estate, 2 Harris,
489, a lady of large property, and
advanced in years, executed a
deed of all her estate, absolute on '
its face, to four persons, who, on
the same day, declared by deed,
that they held the estate in trust

ROBINSON V. PETT.

555

to pay to each of themselves
$10,000 — to pay the Income to
herself for life, and after her death
to distribute the principal among
sundry persons. A bill filed after
her death to set aside these instru-
ments on the ground of influence,
■was dismissed with costs, on the
ground that the proofs not being
suffiiient to support the charges
in the bill, there was nothing in
the reservation of the compensa-
tion so contrary to equity as to
invalidate the transaction. But
this decree was reversed by the
Supreme Court, who, while sus-
taining the deed ani declaration,
yet struck out the i rovision for
compensation in the latter, hold-
ing that, by reason of the confi-
dential relations existing between
the parties, it rested upon the
beneficiaries to show expressly
that the arrangement was fair and
conscientious beyond the reach of
suspicion, and that the grantor
was aware that, by the terms of
the declaration, her estate was
charged with the payment of this
sum as compensation to the trus-
tees even though they performed
no services. " In denying to the
defendants," said the court, "the
specific sums ascertained by their
declaration, we do not mean to
say they are entitled to no com-
pensation for their care, labor, and
responsibility in the management
of the estate committed to them.
This we leave to be ascertained as
in other cases of trust, by the
proper tribunal." Upon subse-
quent settlement of the accounts
of these trustees, commissions (of
which the amount is not stated in

the report) were allowed, except
in the case of one of them, who
had assumed a position hostile to
the trust ; S. C. 12 Harris, 238.

As to the manner in which com-
pensation is given, the court did
not, in the case of Harland's Ac-
counts, 5 Rawle, 330, evince the
same disapprobation of specific
compensation, as has been ex-
pressed in New York, in M' Whor-
ter V. Benson, &c., supra, p. 542.
" It may be awarded," said Gibson,
C. J., " in a gross sura, according to
a common practice in the country,
which I take to be the preferable
one, as it necessarily leads to an
examination of the nature, items,
and actual extent of the services,
which the adoption of a rate per
cent, has a tendency to leave out
of view ;" and in Armstrong'' s Es-
tate, 6 Watts, 231 ; M'Farland
Estate, 4 Barr, 149; Brinton^s
Estate, 10 Id. 411 ; Pedrick's
Estate, 5 Phila. Rep. 4Y8, the al-
lowance was made in a gross sum.
But in general, the prevailing
practice is to allow compensation
by means of commissions ; and with
respect to their amount, it may
perhaps be said that in by far the
great majority of estates adminis-
tered either by executors or trus-
tees, five per cent, is the usual
commission charged; Pusey v.
Glemson, 9 Serg. & Rawle, 209
Burr V. 3I'Ewen, Baldw. 386
Pennell's Appeal, 2 Barr, 216
Hemphill's EHate, Parsons Eq,
31; Bird's Estate, 2 Id. ITl
Mayberry's Appeal, 9 Casey, 258
Gable's Appeal, 12 Id. 395 ; Esh-
le.man's Ap., 24 P. F. Smith, 42
Wharton's Est., 32 Leg. Int. 90

556 COMMISSIONS OF TRUSTEES AND EXECUTORS-

[n Pusey v. Clevison, Tilghman,
C. J., said, "In the cases which
generally occur, it appears to me,
after considerable research, that
the common opinion and under-
standing of this countr}', has fixed
upon five per cent, as a reasonable
allowance. But to this rule there
must be exceptions. Tliere are
estates where the total amount is
small, and that, too, collected in
driblets. In such, five per cent,
would be insufficient. [Thus, in
a case where the sums were small,
and had to be remitted by mail to
the party entitled to receive them,
ten per cent, was not deemed ex-
cessive ; ITarateller's Appeal, 4
"Watts, 268.] On the contrary,
there are others, where the total
being very large, and made up of
sums collected and paid away in
large masses, five per cent, would
be too much. It must be left to
the discretion of the courts, to as-
certain those cases in which the
general rule should be departed
from. The personal care and anx-
iety of the executor is a fair sub-
ject of consideration. An estate
not equal to the payment of its
debts, is alwa3'^s attended with
hazard, which should not be for-
gotten in fixing the compensation."
In the case then before the court,
however, the estate being large,
" the trouble having fallen princi-
pally upon the counsel employed
for the executors, for whose re-
ward a very liberal allowance had
been made, and all the expenses of
the executors having been paid,
over and above their commissions,"
and the money having come into
the hands of the executors in large

sums, the commissions were re-
duced to three per cent. So in
Muntier's Appeal, 7 Phila. Rep.
491, it was said, " where the prin-
cipal part of the personalty con-
sists of a debt due by the account-
ant, and all the labor as to sale of
the realty has devolved upon coun-
sel, two per cent, commission on
the purchase money would seem
to be a reasonable allowance." In
Harland's Accounts, 5 Rawle,
331, rather less than five per cent,
for the management of a fund of
$40,000 accumulated to $100,000,
in twenty years, was claimed,
which the court said, gave a sum
to which objections could not be
taken on either side, and this to
compensate not only for labor ex-
ponded, but for responsibility and
expenses incurred in litigation ; in
M'Farland's Estate, 4 Barr, 149,
the allowance was about the same,
though on a much less estate, and
the payment by administrators of
$1000, and one-third of an appar-
ently desperate claim at Washing-
ton as a contingent fee to agents,
was sanctioned- under the circum-
stances. So in Bird's Estate, 2
Parsons Eq. 171, where the execu-
tor had charged five per cent, on
an estate amounting to over $100,-
000, and it appeared from the re-
port of the auditor, as well as from
the will, that there were import-
ant trusts devolving upon the ex-
ecutor— some difl[icult and compli-
cated— that he had been intimately
acquainted with the afll'airs of the
estate in the lifetime of the de-
ceased, and had now only charged
the usual commission, the claim
was allowed.

ROBINSON V. PETT,

557

In Stephenson's Ustate,i Whar-
ton, 104, a very precise basis was
attempted to be fixed by the court
with respect to executors, who, of
course, charge their commissions
on the whole amount of the estate.
" Tlie responsibility which is in-
curred by the receipt and disburse-
ment of money, is a legitimate
subject of compensation, and an
unvarying rate per cent., without
regard to the magnitude of the
sum, will always be a just measure
of it, because the responsibility in-
creases in proportion to the
amount. It is, consequently, sus-
ceptible of a uniform measure,
which we think may be reasonably
put at two and a half per cent.
Not so the compensation of trou-
ble. The settlement of a very
large estate may be the business of
a few days, while that of a small
one may occupy as many years ;
and the compensation for all be-
yond the responsibility, ought to
be graduated to the circumstan-
ces." In that case, a commission
of five per cent., charged by the
executors of an estate of $350,000,
was reduced to three, " the bulk
of tlie property- being readily con-
vertible into cash, and but little of
it outstanding." So in Walker's
Estate, 9 Sergeant & Rawle, 225,
where the estate consisted princi-
pally of bank stock, which was
transferred by the executors to the
legatees, three per cent, was said
to be a very ample allowance, and
the same rule was adopted on the
authority of these cases, in Miller's
Estate, 1 Ashmead, 335 ; Whelen's
Estate, 20 P. F. Smith, 431.

But where, in Ouien's Estate, 1
Ashine.'id, Sit, a testator gave to
his executors two per cent, on the
" net proceeds " of his estate,
which was supposed to be solvent,
but turned out otherwise, the com-
missions were raised to four per
cent. " An allowance made to the
executors of a solvent estate,"
said King, Pres. J., " in the ad-
justing of which little difficulty or
responsibility could arise, would
be manifestly inadequate to the
lubor and responsibility of collect-
ing the scattered funds, settling
the complicated transactions, and
distributing the proportions of tiie
estate of an insolvent merchant
in large business. It may be said,
that the executors accepted this
trust with the compensation fixed,
and are bound by the acceptance.
The answer to this is, that if they
did so, it was with reference to the
state of things presented by the
will, the settlement of a solvent
estate, not the collection and dis-
tribution of the scattered assets of
a bankrupt estate. . . To siiow
the effect produced by the insol-
vent condition of this estate, let
us suppose the testator had fixed
fifteen per cent, as the amount of
compensation to be taken by the
executors. This direction would
be certainly disregarded, and the
executors allowed no more than a
just compensation for their labor.
The best light in which such a di-
rection could be viewed, would be
as a legacy to the executors, and
as such it must await tiic satisfac-
tion of the debts of the decedent ;
Fretwell v. Stacy, 2 Vernon, 434.

558 COMMISSIONS OF TRUSTEES AND EXECUTORS.

Otherwise, fixing an extravagant
compensation to executors, would
be an ingenious mode by which
an insolvent could make valuable
bequests. (See Barney v. Griffin,
2 Comstock, 372; supra, p. 541.)
It is a bad rule that will not work
both wa^'s ; and if the insolvency
of the estate would defeat a liberal
allowance for care and trouble
given by the testator to the execu-
tor, it must leave the executor
free to claim a sum beyond that
fixed in the will, where the justice
of the case demands that he should
have it. Where an estate is in-
solvent, all the dispositions of the
will are superseded, and the lia-
bilties and rights of the creditors
and their trustees, the executors,
are to be ascertained by the gen-
eral rules of law." These princi-
ples are so clearly explained, as
to be of universal application. So
in HeckerVs Appeal, 12 Harris,
482, an assignment having been
made for the benefit of creditors,
of an estate which was large and
complicated, and of which the
trust lasted for thirteen years,
during which the assignee resisted
the solicitations of his assignor to
sell the real estate when a much
less price would probably have
been obtained than was finally got,
the final sale, for over $116,000,
raised the estate from insolvency
and left a surplus for the assignor ;
and the Supreme Court, affirming
the decision of the court below,
confirmed the report of auditors
who had allowed the accountant a
yearly sum paid to an agent to
look after the lands, his commis-
sions, amounting to over $6000,

and his counsel fees, over $2500.
" The law has fixed no rule," said
Woodward, J., who delivered the
opinion of the court, " for measur-
ing the rate of compensation, and
it is obvious, from the infinitely
diversified cii'cumstances attending
trusts, that no inflexible rule can
ever be prescribed. The amount
of compensation must depend on
the discretion, which is nothing
else than the reason and conscience
of the tribunals having jurisdic-
tion of the trust. In the admeas-
urement of it, regai-d is to be had
to the amount and character of
the estate, and to the labor, skill,
and success attending the admin-
istration of it. The auditors
seem to have assessed this as-
signee's compensation with intelli-
gent reference to these ruling
points. We have considered all
that has been urged against their
conclusions, without perceiving
any ground for revei'sing them."

Under ordinary circumstances,
the usual commission on the sales
of real estate, seems to be about
two and a half per cent. ; Skinner'' s
Est., 4 Phila. Rep. 189; ^shle-
man's Ap., 24 P. F. Smith, 42;
and seldom, perhaps, exceed three
per cent. ; Duval's Ap., 2 Wright,
113 ; Snyder's Ap., 4 P. P. Smith,
67 ; and, therefore, in Nathans v.
Morris, 4 Wharton, 389, the com-
missions of trustees were fixed at
three per cent, upon the proceeds
of sale (about $7500) of certain
ground rents, sold hy them in pur-
suance of directions in their testa-
tor's will ; so where, in the case of
an assignment for the benefit of
creditors, the assignees sold the

KOBINSON V. PETT.

559

real estate for $44,000, of -which
they received but $13,000, the re-
mainder being, in pursuance of an
agreement, credited to payments
to certain lien creditors, the com-
missions were fixed at five per
cent, on the personal estate, and
two and a half per cent, on the
gross proceeds of the real estate ;
Skunk's Appeal, 2 Barr, 301.
But when the sale is attended
with unusual difficulty a higher
rate is sometimes reached, and in
a case where the sale involved two
applications to the Orphan's
Court, the settlement of mortga-
ges, judgments and other liens,
and the advance of monej', five per
cent, was not considered unreason-
able ; RohVs Appeal, 5 "Wright,
45; and in Clark's Est. 32 Leg.
Int. 126, four per cent, was al-
lowed. As a general rule com-
missions,v as such, are not earned
unless the land be actually sold,
but where an executor, at the re-
quest of the distributees, refrained
from exercising his power of sale,
he was held entitled to compensa-
tion for services performed in re-
gard to the land ; Twaddell's Ap.
1 Leg. Gaz. 82.

With respect to commissions on
re-investments by trustees, it was
said in Barton's Estate, Parsons'
Eq. 29, " if too freely given, they
afibrd, in a trustee with large dis-
cretion, great temptations to re-
peated changes of the securities of

the fund Two and a

half per cent, on such re-invest-
ments, is greatly too large a com-
mission. Purchases of city and
county stocks are made through
brokers, who for one-quarter of one

per cent., make the purchases, ob-
tain the transfers, and pay over the
price to the vendor. Now to al-
low a trustee two and a half per
cent, on such re-investments, in
addition to the usual brokerage, is
too severe a tax on the trust luud.
If called upon to fix a standard
of compensation to a trustee, for
investments so simple and' free
from care and responsibility, I
would say one per cent, came
nearer accuracy than two and a
half." So, in the subsequent case
of Hemphill's Estate, Parsons'
Eq. 30, it was said : " As a general
rule, commissions on the principal
sum coming into the hands of a
trustee, and on the re-investment
thereof, will not be allowed ; par-
ticularly when the usual commis-
sion of five per cent, has been
charged on the interest and profits
derived from such investments.
Commissions and brokerage, and
all other usual expenses paid by
them are properly chargeable to
the estate. But where the invest-
ments and re-investments are made
without any extraordinary labor or
trouble, the commision of five per
centum charged on the annual re-
ceipts of income is an adequate
compensation for the trustee's care
and trouble, as well for making
such re-investments as for receiv-
ing their income. There may arise
cases in which, from their special-
ties, this general rule should not
be applied ; but these must always
be regarded as exceptions," and
upon appeal, this decision was af-
firmed by the Supreme Court ;
Hemphill's Appeal, 6 Harris, 303.
In the very recent case, however,

560 COMMISSIONS OF TRUSTEES AND EXECUTORS.

of BeU\ Estate (October, 18U, 1
Weekly Notes, p. 20), the Orphans'
Court held, " That it was in the dis-
cretion of the court to allow com-
missions upon re-investments of
the principal, when the change in
the investments had been made in
obedience to a decree of the court,"
and, therefore, an executor (acting
ilso as the committee for one of
the devisees, a lunatic), who had
been compelled on four occasions,
by decree of the Court of Common
Pleas, to extinguish ground rents
which formed part of the estate,
Hid give security for the amounts
received therefor, was allowed a
3ommmission of three and a half
per cent, on the principal. In the
!)revious case of Pedrick'a Estate,
j Phila. Rep. 4*18, the same court
lUowed one per cent, for such re-
nvestment.

The commissions allowed to an
jxecutor or administrator, are gen-
irallj' considered to be a full
equivalent for all personal services
performed for the estate ; but in
Loiorie^s Appea,l, \ Grant, 3Y3, a
iifferent rule was applied to a trus-
ee, who having, after his appoint-
nent, continued to act in his for-
ner position of counsel for the
rust, was allowed for such services
n addition to his commissions, and
md a similar decision was made in
Pedrick's Estate, 5 Phila. Rep. 478.
50 in McElhenny^s Appeal, 10
(V right, 348, the same doctrine was
ipplied to a guardian who had im-
)roved the estate by the erection of
, building thereon. " A guardian,"
aid the court, " unlike an admin-
strator, is a trustee for custody
ind management, not for mere col-

lection and distribution. The per-
centage on the sum collected,
allowable to an executor or admin-
istrator, is not, therefore, always a
just measure of what should be
allowed to a guardian : " but
though a guardian is required by
statute to present an account of his
management of the estate, at least
once every three years, yet he is
not entitled to charge commissions
upon the balances appearing by
such triennial accounts ; Foltz's
Appeal, 5 P. F. Smith, 428.

As commissions are given as a
remuneration for trouble or re-
sponsibility, it follows that they
will be refused when no services
have been performed, or risk incur-
red ; Bell's Estate, 2 Parsons' Eq.
200 ; Canard's Appeal, 9 Casey,
49 ; and, therefore, they cannot be
charged upon rents derived from
property of which the trustee is
himself the tenant; Landis v.
Scutt, 8 Casey, 504 ; nor upon un-
collected debts charged in the in-
ventory, when no effort has been
made to collect them ; Mayberry's
Appeal, 9 Casey, 258 ; so commis-
sions are not allowed upon the capi-
tal of a specific bequest of an
investment made by the testator ;
3Ic G auseland' s Apjyeal, 3 Wriglit,
466 ; but a different rule of course
prevails where the bequest is not
specific, and a portion of the estate
has to be realized for the purpose
of paying the legatees ; Luken's
Appeal, 11 Wright, 357 ; Robin-
son's Estate, 5 Phila. Rep. 99.

In Solliday v. Bisset, 2 Jones,
347, in which an action was
brought against an executor, by
the widow, for arrears of interest

ROBINSON V. PBTT.

561

due upon a fund set apart by the
testator for her support, he claimed
to set off commissions upon the
amounts due her, but the court in-
structed the jury, that "a fund
like this is the ' annuitant's bread,'
and to carve commissions out of
it, would, in many cases, reduce
her to discomfort and suffering.
Where the executor is to pay it, as
in this case, he knows what he un-
dertakes at the probate of the will,
and what compensation he may ex-
pect, when he asks such probate.
He gets full commissions for exe-
cuting the will, and the testator
does not contemplate giving him
more out of the allowance made
to his widow. There can be no
great difficulty in procuring trus-
tees to manage such funds for an-
nuitants, especially where they are
appointed by the will, and entitle
themselves to commissions on the
estate, by accepting the office of
executor." The jury, were, there-
fore, instructed that under the evi-
dence, the defendant was not en-
titled to such commissions, and
this instruction was affirmed on
error, although the case itself was
reversed upon another point. But
it may be observed of this case,
that it was not that of an ordinary
settlement of accounts, but the
charge of commissions was set up,
together with other matters of set-
off, as a defence, at law, to pay-
ment of admitted arrears of in-
come, and therefore received less
favor than it would otherwise
probably have been entitled to.
And in the subsequent case of
Spangler'a Estate, 9 Harris, 335,
in which the provision for the
VOL. II 36

widow was almost exactly similar,
the Supreme Court allowed the
executor his commissions on that
fund, and in referring to the de-
cision in Solliday v. Disset, which
had been cited and relied on in the
argument, said, " it must have
been by some oversight that this
court, on that occasion, adopted
the views of the court below. It
surely was not intended to say
that charity in a trustee, is matter
of legal duty, or that either an ex-
ecutor or trustee is bound to ad-
minister the funds committed to
him without compensation. It is
more probable that the court meant
to say no more than that a legacy
of the annual income of a certain
fund, is intended to be certain, like
a definite legacy, and not chargea-
ble with the expense of adminis-
tering the fund. [See Brown v.
Kelaey, 2 Gushing, 249.] It may
be, also, that there was some-
thing special in the form of the

bequest There is no

shadow of reason for saying that
an executor, acting as trustee after
the general estate has been settled,
is entitled to no compensation for
investing and managing the trust
funds remaining in his hands, in
carrying into effect the trusts of
the will. All trustees are entitled
to a reasonable compensation for
their services as they are rendered,
and, unless a contrary intention
appear, the compensation must
come out of the income of the
fund with which they are en-
trusted."

Although " commissions are due
at the time the services are per-
formed;" Gallaghan v. Hall, 1

362 COMMISSIONS OF TRUSTEES AND EXECUTORS,

Serg. & Rawle, 247 ; yet interest
thereon seems not to be allowed ;
Armstrong's Estate, 6 Watts, 236 ;
nor in charging an accountant with
interest, are his commissions to be
included and interest calculated
upon them ; Callaghan v. Hall,
supra; Parker's Estate, 14 P. F.
Smith, 310 ; and on tlie other
hand, where the estate has been
increased by a charge of interest,
the trustee, if allowed to claim
commissions in that case, is not
entitled to charge them upon the
increase ; Say v. Barnes, 4 Serg.
& Rawle, 116 ; nor can an action
for commissions be brought, until
the account has been settled ; Carl
V. Wonder, 5 Watts, 9T ; Fournier
V. Ingraham, *l Watts & Serg. 27 ;
and in Adams' Appeal, 1 1 Wriglit,
94, it was held that the commis-
sions of an executor are not at-
tachable at tlie suit of his judg-
ment creditors. " We look upon
an executor or administrator,"
said the Court, " as exercising a
trust which should not be joep-
arded or prejudiced by collateral
and minor interests. He resem-
bles a sheriff, prothonotary, or
treasurer, in respect to his duties
towards the trusts he is executing
and the same general rule of policj'
applies to him."

It is well settled, that the num-
ber of executors or trustees makes
no difference in their allowance ;
Aston' s Estate, 4 Wharton, 240;
and by the Act of 1864, it is pro-
vided, " That in all cases, where
the same person shall, under a
will, fulfil the duties of executor
and trustee, it shall not be lawful
for such person to receive, or

charge more than one commission
upon any sum of money coming
into, or passing through, his hands,
or held by him for the benefit of
other parties ; and such single
commission shall be deemed a
full compensation for his services
in tlie double capacity of executor
and trustee ; Provided, That any
such trustee shall be allowed to
retain a reasonable commission on
the interest he may receive from
any sum held by him in trust as
aforesaid;" P. L. 1864, p. 53;
Purdon, 445, pi. 19Y. This statute
has been held to be merely pros-
pective, and not to apply to ac-
counts settled before its passage ;
Pedrivk's Estate, 5 Phila. R. 478.
In case of question arising be-
tween co-executors or trustees as
to their respective shares of com-
pensation, it has been said that :
" If the trouble of the executors
has been unequal, as is generally
the case, they should do justice
among themselves, by assigning to
each a share of the whole allow-
ance proportioned to his trouble ;
or if they choose to divide it
equall}', it is their own, concern,
and they may settle it as they
please ; " Walker's Estate, 9 Serg.
& Rawle, 226 ; Asian's Estate, 5
Wharton, 67 ; and in Stevenson's
Estate, 1 Parson's Eq. 19, it was
held to be the proper course to
prefer the charge as an entire claim.
" We do not say," said King, P. J.,
" that this court would not, under
appropriate proceedings, settle
such a question among executors
or other trustees. All that is
meant to be said is, that under a
general reference to auditors to

ROBINSON V. PETT.

563

settle an administration account,
such auditors possess no authority
to apportion commissions among
joint accountants," but simply to
decide what aggregate sum should
be allowed as a whole. But though
the Orphans' Court may possess
such power, yet if it is not ex-
ercised, and one of two co-execu-
tors receives the whole compensa-
tion, the remedy of the other is not
by petition to that court, but by a
common law action on the implied
assumpsit raised by the possession
of the money ; Wickersham's Ap-
peal, 14 P. F. Smith, 6Y.

In the revised statutes of Maine,
the sixteenth section of the fee
bill (Rev. St. 1857, tit. x., ch. 116,
p. 659, taken in substance from
the prior Act of 16th March,
1830, and the Revised Statutes of
1840), allows to executors, ad-
ministrators, guardians, and trus-
tees, one dollar for ten miles travel
to and from the court, and the
same for each day's attendance,
"and a commission, at the discre-
tion of the judge of probate,
whether the account shall be set-
tled at one or more times, not ex-
ceeding five per cent, on the
amount of personal assets that
may come to their hands, having
regard to the nature, liability, and
difficulty attending their respec-
tive trusts. In cases where legal
counsel is necessary, a reasonable
sum for professional aid shall be
allowed at the discretion of the
judge."

In New Hampshire, there ap-
pears to be no specific statutory

provision on the subject' of the
compensation of executors ; the
compiled statutes of 1853, merely
declaring in the language of the
prior revised statutes, that the
estates of every person deceased,
shall be chargeable with the just
expenses of the administration
thereof (Comp. Stat. p. 407 ; Gen.
Stat. p. 363, § 15), and these ap-
pear to be commissions — the ex-
pense of attending probate court —
and a per diem allowance thereat ;
Tutile V. Bobinson, 33 N. H. 118 ;
Wendell v. French, 19 Id. 210 ;
" and if the executor has, more-
over, performed the duty of a
counsellor-at-law, it would ill ac-
cord with the purposes of justice,
and would not be promotive of the
best interests of parties even, to
hold that for such services ren-
dered and duties performed, he is
not entitled to receive an adequate
compensation, commensurate with
their real value and importance ;"
Wendell y. French. So a guardian
litigating, in good faith, in refer-
ence to a doubtful question, is en-
titled to full reimbursement for all
reasonable expenses incurred in
such actions, whether successful
or not ; Palmers. Palmer, 38 N.H.
418.

In the early case of Garden v.
West, 8 N. H. 444, the court dis-
allowed commissions on the value
of specific articles given over,
or retained by the executor, in
pursuance of the will, but, how-
ever, allowed two and a half per
cent, commission on the princi-
pal of the moneys actually collec-
ted, the duties of a trustee being
superadded to those of an execu-

364 COMMISSIONS OF TRUSTEES AND EXECUTORS.

tor; and something like a rule
seems to have been intended to Idb
laid down for future cases : " We
are further of opinion," said Par-
ker, J., " that in ordinary cases of
a trust, five per cent, annually is
as great an interest as should be
exacted of a trustee ; or in other
words, when the trustee accounts
for six per cent, annually, one per
cent, is a proper compensation to
be allowed for the care and cus-
tody of the funds, and for collect-
ing the income." This one per
cent, would seem to be one per
cent, on the principal, a much
larger allowance than that in other
States, being over fifteen per cent,
on the income. In Wendell v.
French, supra, two and a half per
cent, had been allowed an executor
for collecting and disbursing the
money of the estate ; but it being
in evidence that the money was at
ready command, and the persons
to whom it was to be paid lew in
number and easily ascertained,
and the responsibility and danger
of mistake slight, the court above
reduced the commission to two per
cent., though other charges, as for
writing letters, &c., were allowed.
In Lund v. Lund, 41 N. H. 364,
it was said that upon the presenta-
tion of an administration account,
the usual course was to omit the
charge for commissions, and the
judge of probate would insert such
sum as he deemed reasonable upon
considering the circumstances of
the case.

In Vermont, it has been said
that the English rule as to the
compensation of trustees " has

never obtained in this State ;"
Hubbard v. Fisher, 25 Verm. 542 ;
and the revised statutes of 1850
allow to executors and adminis-
trators all necessary expenses in
the care, management and settle-
ment of the estate, and for their
services such fees as the law pro-
vides, together with all extra ex-
penses, but an agreement, made by
those sui juris, to pay an admin-
istrator a compensation in excess
of the amount allowed by statute
is valid, and will be enforced ;
Subbell v. Olmstead, .86 Verm.
620. There is also a similar statu-
tory provision to that in New
York, as to renunciation of any
compensation allowed by the will ;
R. S. Ch. 53, §12. The same pro-
vision was contained in the Re-
vised Statutes of 1839. From the
case of Evarts v. Mason, 11 Ver-
mont, 122, it would seem that a
very liberal provision was custo-
mary in that state, for tra%'elling
expenses, loss of time while ab-
sent, counsel fees, &c., though, in
that case, a gross charge of $300
for services in addition to all
these expenses, was reduced one-
half; and in Towle v. Mack, 2
Verm. 19, it was held, that al-
though a trustee should be allowed
the expense of litigation carried
on in good faith for the trust, yet
that after he had been called upon
to surrender it to the cestui que
trust, he could not be allowed the
cost of defending his position in
refusing to do so. Apart from
this, an executor or guardian is,
however, as a general rule, " al-
lowed his expenditures in a law
suit in which he fails, where he

ROBINSON V. PETT.

565

acts in good faith, and with rea-
sonable prudence ;" Eame v. His
Creditors, 4 Verm. 256 ; Holmes
V. Holmes, 28 Id. 765; Harwood
V. Boardmav, 38 Id. 554, but they
are not allowed when the suit is
clearly unnecessary and badly con-
ducted ; Eame v. His Creditors,
supra. As to the forfeiture of
compensation by unfaithful ad-
ministration, see the case of Hap-
good V. Jennison, 2 Verm. 302,
referred to in the next section of
this note.

In Massachusetts, it is now
provided by statute that " execu-
tors and administrators shall be
allowed their reasonable expenses
incurred in the execution of their
respective trusts, and shall have
such compensation for their ser-
vices as the court in which their
accounts are settled considers just
and reasonable" (Gen. Stat. 1860,
p. 495, § 10), but the principle was
recognized in that commonwealth
at an early day, and applied to all
acting in a fiduciary capacity. It
was said in Barrell v. Joy, 16
Mass. 229, " executors are allowed
a reasonable compensation, and
there is no reason why trustees
should not be, and it will probably
be for the advantage of all who
are concerned in estates held in
trust, that such compensation
should be made. We know of no
better rule to guide our discretion
in this particular, than the usage
which exists among merchants,
factors, and others, who undertake
to manage the interests and con-
cerns of others," and five per cent,
upon the gross amount of the

property which had come into the
hands of the trustee was allowed
to him in that case. In Denny v.
Allen, 1 Pick. 147 ; Longley v.
Hall, 11 Id. 124 ; Ellis V. Ellis, 12
Id. 183, and Jenkins v. Eldridge,
3 Story, 225, the genera! principle
was recognized, and in Oibson v.
Crehnre, 5 Pick. 161, extended to
a mortgagee in possession, to whom
five per cent, was allowed for his
trouble in collecting the rents, but
in Scudder v. Crocker, 1 Gushing,
384, a commission of five per cent.,
amounting to nearly $7000, on
sales of propert3'- made by trustees
under an assignment for the bene-
fit of creditors, was reduced to
$5000.

In Jennison v. Hapgood, 10
Pick. 77, it was urged that the
executor had, by unfaithful admin-
istration, forfeited all claim to
compensation. "Without directly
deciding tiiis question, the court
held, thnt " this consideration
ought not to be blended with the
claim for compensation, so far as
the services of the appellee have
been beneficial to the heirs;" and
the saipe view seems to have been
taken by the Supreme Court of
Vermont, in the same case ; Hap-
good V. Jennison, 2 Verm. 302 ;
but in Belknap v. Belknap, 5
Allen, 468, the commissions of a
trustee who had appropriated a por-
tion of the fund, were applied in
part to the paj'ment of the costs,
and the balance distributed as in-
come, and the same doctrine was
recognized and enforced in Walker
v. Walker, 9 Wallace (U. S.) 744.
So in the very recent case of Blake
V. Pegram, 109 Mass. 557, a guar-

566 COMMISSIONS OF TRUSTEES AND EXECUTORS,

dian who refused to fully disclose
his dealings with the estate, was
deprived of all commission thereon.
As to the manner of allowing
3ompensation, though the practice
seems to have been to allow it in
the shape of commissions, yet it
(vas held in RathhurnY. GoUon, 15
Pick. 4'71, that there was no objec-
tion in principle, or in the practice
jf the court, to allow commissions
n connection with specific charges
ibr services, provided the whole
lid not exceed a just compensa-
;ion, in which case the commis-
iions were to be considered in lieu
)f all remaining services not spe-
;ifically charged ; and in the very
■eceut case of May v. May, 109
Mass. 252, the guardian of a luna-
,ic possessing a large estate was
illowed,in addition to his commis-
lion of iive per cent, upon the
rross amount collected, a further
mm as a compensation for time
iccupied in visiting the ward, as
he latter was proved to be mate-
■ially benefited by such visits.
"n Blake v, Pegram, 101 Mass.
i9T, a trustee having claimed, in
iddition to his commissions, a
urther allowance for services ren-
lered as counsel, it was said by
he court that "the charges for
)articular services are not to be
lisallowed without some proof
liat they are excessive, or that the
ervices are not such as justified
,ny charge beyond the general
harge of commission," and the
a&e was thereupon recommitted
o a master, who afterwards re-
lorted a certain amount as a rea-
onable compensation. It is ap-
larent, however, that the above

remarks cannot be considered as
having a general application, and
upon a further hearing the court,
while sustaining the report, yet
said, " we are not prepared to hold
that a lawyer acting as trustee, and
having occasion to perform pro-
fessional services on behalf of his
trust, may not be allowed in any
case to receive from the trust fund
the usual professional compensa-
tion for such special services, but
such charges, where the lawyer is
his own client, are open to serious
question because of the liability
to abuse, or at least, to the suspi-
cion of abuse. They require the
most careful scrutiny, and should
be left in no doubt either as to the
reasonableness of the charge, or
the propriety of the service," and
hence a claim for professional ser-
vices in excess of the amount al-
lowed by the master was rejected,
as no distinct proof appeared that
the charge was either reasonable
or necessary ; Blake v. Pegram,
109 Mass. 55.

The distinction between the
duties of an executor and a
trustee, in reference to the sub-
ject of compensationf was thus
pointed out by Shaw, 0. J., in
Dixon V. Homer, 2 Metcalf, 422 ;
" There is not much analogy be-
tween the ease of a trustee and
that of an executor. The great
dut}^ of an executor or adminis-
trator, is to collect the assets of
the estate, and make distribution
of the same. In doing this, he re-
ceives the money once, and dis-
burses it once ; and his compensa-
tion is not fixed until he settles
his account of such receipts and

ROBINSON V. PEXT.

567

disbursements, as far as they have
been actually made. It is then, a
compensation for services actually
done. The case of a trustee is
more analogous to that of a guar-
dian. He takes the property to
preserve, manage, invest, reinvest,
and take the income of it, perhaps
for a short period, perhaps for a
long course of years, depending
on various contingencies. It may
happen that the trust will termi-
nate in a few days by the death of
the trustee, or iiis resignation or
removal, before any beneficial ser-
vice is performed. We think,
therefore, that no allowance can
justly be made, by way of commis-
sion, on assuming the trust. An
allowance of a reasonable commis-
sion on net income from real and
personal estate — income received
and accounted for — appears to be
a suitable and proper mode of
compensating trustees for the exe-
cution of their trusts. Whether
any allowance shall be made, in
addition to a reasonable commis-
sion, for extra services, at the .de-
termination of the trust and settle-
ment of the account, or whenever
accounts are settled during the
continuance of the trust, must de-
pend on the circumstances of each
case, as they may then exist."
This, it will be seen, entirely coin-
cides with the view taken in Penn-
sylvania ; supra, page 559.

Double commissions will not as
a general rule, be allowed. In
Miller V. Gongdon,14: Gray, 114,
they were refused to an executor,
who was also trustee, when there
had been no separation of the trust
fund from the general estate, and

in the later case of Blake v. Pegram,
101 Mass. 600, it was said " The
commission of five per cent, upon
income received as guardian, in ad-
dition to a like sum charged upon
the same money as received in the
capacity of trustee, is manifestly
excessive. . Such a commission
upon income received and paid
over is allowable only as a conve-
nient measure of compensation for
services supposed to have been ac-
tually rendered. It implies some-
thing more tiian mere nominal ser-
vice and the responsibility of the
trust. There is no rule of law and
no principle of right by which such
commissions are to pe charged or
allowed without regard to the ren-
dition of actual services therefor.
When the same person is both
guardian and trustee, it would be
a reproach to the law, and to the
courts charged with the protection
of such trusts, to allow him to
cliarge full compensation in both
capacities for the same service."

So, too, commissions are not al-
lowed upon re-investments of capi-
tal ; May v. 3fay, 109 Mass. 252.

With respect, to costs, it is enac-
ted that " costs paid by executors
or administrators and for which
tliey are made personally liable,
shall be allowed in their adminis-
tration accounts unless the probate
court decides that the suit was
prosecuted or defended without
reasonable cause," Gen. Stat. 1860,
p. 651, § 9 ; and hence a fiduciary
acting in good faith will be entitled
to be reimbursed for reasonable
expenses ; Denny v. Allen, 1 Pick.
147 ; Edwards v. Ela,b Allen, 87 ;
while they will be refused when

568 COMMISSIONS OF TRUSTEES AND EXECUTOKS.

the litigation results from his
misconduct ; Boyle v. Boyle, 3
Allen, 158; Blake v. Pegram,
109 Mass. 542. In Forward v.
Forward, 6 Allen, 494, it ap-
peared by the report of the au-
ditor that the executors had been
grossly negligent in rendering
their account, but as the subse-
quent litigation was not caused by
such neglect, and as many of the
distributees had previously agreed
to indemnify the executors for
their expenditures, their counsel
fees and reasonable expenses of
administration were charged upon
the estate.

Nor is an administrator allowed
the expenses of opposing the pro-
bate of a will ; Edwards v. Ela, 5
Allen, 87 ; and so where an admin-
istrator applied for instructions
concerning the disposal of a speciiic
portion of the estate, the costs
were charged upon that portion
only as the ambiguity did not arise
from the will ; Bydon v. Morong,
103 Mass. 287.

In Connecticut, there appears to
be little authority and no statutory
provision upon this subject. The
Revised Statutes of 1849 provide
that where commissioners are ap-
pointed to receive and decide upon
the claims of creditors of an insol-
vent estate, " the court shall allow
them a reasonable compensation
for their services, out of the estate
of the deceased ;'' (Revised Stat,
ch. 3, §56;) but are silent as to
the compensation of the executor
himself. The doctrine was, how-
ever, recognized in the early case
of Gomstock v Hadlyme, 8 Conn.

263, where it was said that an ex-
ecutor acting bona fide " must be
entitled to payment of his expenses
and a compensation for his servi-
ces ;" adopted in Ganfield v. Bost-
wick, 21 Conn. 552 ; and has been
extended to trustees ; Clark v.
Piatt, 30 Conn. 282. In Kendall
V. The New England Carpet Co.,
13 Conn. 392, in which the previ-
ous case of Gomstock v. Sadlyme,
appears to have been overlooked,
the English rule was referred to as
a settled principle of equity, but
likened to that which holds to be
invalid purchases made by a trus-
tee of the subject of the trust — a
rule which admits of certain ex-
ceptions when the bargain is a per-
fectly open one. The plaintiflf
having accepted an assignment of
a manufacturing company, and
carried on the business on his per-
sonal responsibility, and made
large advances in so doing, under
an agreement witli one of its mem-
bers that he should bfe compensated
for his services as though he had
no interest in tlie business, it was
held to be grossly inequitable and
unjust, that the company should
not only draw the plaintiff in to
incur those hazards, and render
those services, but that by their
subsequent silence they should
permit him to continue them a
considerable time after it was
known to them what claim he made
for these services, without objec-
tion on their part.

No allowance will be made to an
administrator for expenses in-
curred by his misconduct or viola-
tion of duty, but " as to disburse-
ments which ultimately prove to

ROBINSON V. PETT.

569

have been unnecessary, we do not
mean to say that they are not to
be allowed, if when they were made
by him there was good reason for
believing them to be necessary for
the interest of those concerned in
the estate, and they were made in
good faith, but where there have
been such expenditures it rests
upon the administrator to show
just excuse or explanation of them
before he can legally claim their
allowance ; " Bobbins v. Wolcott, 27
Conn. 238. In Cantfield v. Bost-
U'ick, 21 Conn. ."iSS, tlie court saw
no error in an allowance, by the
judge of probate, of a few dollars
for services, then future, but cer-
tain to be rendered hy the execu-
tor ; a gross charge, however, for
" expenses of settling the estate"
will not be allowed ; Siuan v.
Wheeler, 4 Day, 140 ; Fairman's
Appeal, 30 Conn. 208.

In New Jersey, the Revised
Statutes of 1845 provided (in the
words of prior acts passed in 1820
and 1834), that the allowance to
executors, administrators, guar-
dians, or trustees should be made
with reference to the actual pains,
trouble, and risk in settling the
estate, rather than in respect to
the quantum of estate ; (R. S. of
1846, tit. vii. ch. 5, § 26), and al-
though trustees, of whatever name,
had always been allowed " an ade-
quate compensation ;" Vorhees v.
Stoothorf, 6 Hals. 149 ; Jackson v.
Jackson, 2 Green. Ch. R. 113 ;
Warbass v. Armstrong, 2 Stock-
ton Ch. R. 263 ; though in some
cases reluctantly awarded ; State
Bank v. Marsh, Saxton, 296 ; yet

until the passage of the act of
1855, the amount of comi)ensation
seems to have been but little regu-
lated, and it was complained that
there was "no subject about which
there was greater uncertainty — no
accountant could guess what he
would receive — no person inter-
ested imagine what he was to pay ;"
Mathis V. Mathis, 8 Harrison, 6T.
In that case the court refused on
certiorari, to reverse the allow-
ance by the court below to an exe-
cutor of fifteen per cent., but the
decision was based rather on the
ground that this was a matter of
discretion with that court, which
in the absence of pali)able error,
would not be reviewed on certio-
rari ; and the same view was taken
in Stevenson v. Phillips, 1 Zabris-
kie, Yl ; Anderson v. Berry, 2
M'Carter, 233. The commissions
of an executor would, it seems,
have included not only an allow-
ance for his personal services, but
also, ordinarily, the expenses to
which he had been subjected ;
Lloyd V. Bowe, Spencer, 685.

Subsequent legislation has, how-
ever, placed this subject upon a
very exact basis. By the act of
1862 it is provided that on the
settlement of accounts of execu-
tors, administrators, guardians and
trustees under a will, their com-
missions, over and above their ac-
tual expenses, shall not exceed the
following rates ; on all sums that
come into their hands not exceed-
ing $1,000, seven per cent., if over
$1,000, and not exceeding $5,000,
four per cent, on such excess ; if
over $5,000, and not exceeding
$10,000, three per cent, on such

570 COMMISSIONS OF TRUSTEES AND EXECUTORS.

excess; and if over $10,000, two
per cent, on such excess ; Act
of Febrnarj' 18th, 18G2 ; Nixon's
Dig. p. .566 § 98. This statute is,
in substance, a re-enactment of the
prior Act of 1855, whicli was re-
pealed by the Act of March 14th,
1861 (Nixon's Digest, p. 565, § 92),
and a different rate established, but
the latter statute was itself subse-
quently repealed by the Act of
1862, and the former rates re-estab-
lished.

It is also provided by the Act of
April nth, 186Y (Nixon's Dig. p.
566, § 99), that the commissions of
executors and administrators in
any estate where the receipts ex-
ceed the sum of fifty thousand dol-
lars, shall be determined by the
Orphans' Court on the final settle-
ment of their accounts according
to the actual services rendered,
not exceeding five per cent, on
all sums which come into their
hands. And by the Act of 1855
(Nixon's Dig. p. 562, pi. 58), where
provision shall be made by will for
a specific compensation to an exe-
cutor, trustee or guardian, the
same shall be deemed a full satis-
faction for his services in lieu of
the said allowance, or his share
thereof, unless he shall, by writing
filed witli the surrogate, renounce
all claim to such specific compen-
sation.

Commissions are not allowed to
a fiduciary guilty of negligence in
the management of his trust, or in
the presentation of proper ac-
counts; Blauoelt v. Ackerman, 8
C. E. Green, 496; Marcy's Ac-
counts, 9 Id. 452 ; Elmer v. Lo-
per, 10 Id 483 ; nor will they be

allowed where the executor or
trustee misappropriates the funds
of the estate, or neglects to invest
them within a reasonable time;
Warbass v. Armstrong, 2 Stock.
Ch. 263 ; Frey v. Demorest, 2 C.
E. Green, 71 ; Lathrop v. Smal-
ley, 8 Id. 192 (and six months
has been held to be such reason-
able time ; Frey v. Demorest,
supra) ; and in the very recent
case of Mc Knight v. Walsh, 9 C.
E. Green, 468, where a trustee
being directed by the will of the
testator to invest portions of the
estate, neglected to do so and used
the money in his business, the
court not only disallowed all com-
pensation thereon, but charged the
trustee with compound interest
upon the commissions retained by
him ; S. C, 8 C. E. Green, 137. In
Moore v. Zabriskie, 3 C. E.Green,
52, a trustee who was deprived of
his commission was allowed a
counsel fee for " important ser-
vices rendered to the cestui que
trust."

So, while a fiduciary will be en-
titled to full indemnity for costs
incurred when seeking for instruc-
tion where a reasonable doubt ex-
ists, or where his action is for the
advantage of all concerned ; Lid-
dall V. M' Vickar, 6 Halst, 44 ;
Vanne.ss v. Jacobus, 2 C. E. Green,
154 ; Attorney- General v. Moore,
4 Id. S04 ; Munn v. Munn, 5 Id.
472 ; Slack v. Bird, 8 Id. 239 ; yet
it is otherwise when there has been
negligence, misconduct, delay in
final settlement, failure to keep the
funds of the estate properly in-
vested, or a misappropriation
thereof by the trustee ; Pursel v.

ROBINSON V. PET T.

571

Pursel, 1 M'Carter, 515 ; Post v.
Stevens, 2 Beasley, 294 ; Egerton
V. Egerton, 2 C. E. Greeu, 420;
Lathrop v. Smalley ; M' Knight v.
Walnh, supra ; and a guardian
has been "held to be individually
responsible for the fees of counsel
unnecessarily employed ; Holcombe
v.iToZco??! 6c, 2 Beasley, 415. Where
interest is given against a trustee,
costs follow as of course; Warbafis
V. Armntrong, 2 Stock. Ch. 263;
Frey y. Bemoresf, 2 C. E. Green,
72.

The compensation provided by
the Act of 1855 has been given to
receivers ; Holcombe v. Holcombe,
2 Beasley, 417 ; but an executor
who, being unable to make parti-
tion of the property as directed by
the will of his testator, files a bill
in equity under which a sale and
distribution takes place, receives
the same allowance, and no more,
that a master in chancery is en-
titled to ; Dickerson v. Canfield, 3
Stock. Ch. 259.

In cases of specific bequests, or
bequests of specified sums, the re-
siduary estate, if no pravisions to
the contrary are contained in the
will, bears the expenses of their
administration; Fowler v. Colt, 7
C. E. Green, 44; see supra, p. 561.

In Delaware, although commis-
sions are allowed to executors
(Davis V. Bogers, 1 Houston, 64 ;
Bush V. MoComb, 2 Id. 546), yet
the English rule prevails with re-
spect to voluntary trustees. In
Egbert V. Brooks, 3 Harr. 112, it
was considered to be well settled,
that a voluntary trustee was not
entitled to any compensation for

time and trouble ; he was entitled
to have all his charges paid, to be
indemnified against expense and
loss, but not be remunerated ; and
although in the subsequent case of
The State v. Piatt, 4 Id. 154, it
was asserted by counsel, that in
that State all trustees were entitled
to compensation, yet the chancel-
lor in delivering the opinion of the
court, said, " The existence of any
such policy, general practice, or
usage has not been made to appear
by anything presented in this case,
or that lias occurred within the
range of our observation ;" and in
an action brought by the Delaware
College to recover an allowance of
$200 a year, retained as a compen-
sation by two trustees of a lottery
for the benefit of the College, it was
held that thej^ were entitled to no
coinpensa^t'on, but a small sum was
allowed them for their expenses.

An administrator or trustee
making sale of lands under order
of court receives, in addition to
" his reasonable expenses," such
sum as siiall be allowed by the
court not exceeding six per cent,
upon the first three hundred dol-
lars proceeds of sale, four per cent,
on the next four hundred dollars,
three per cent, on the next three
hundred dollars, two per cent, on
the next one thousand dollars, one
and a half per cent, on the next fif-
teen hundred dollars, nor one per
cent, on sums over three thousand
five hundred dollars ; Revised
Code, 1852, p. 329, §24; and it is
also provided that " where part of
the effects of the deceased passes
from one executor or administra-
tor commissions shall not be twice

572 COMMISSIONS OF TRUSTEES AND EXECUTOKS,

allowed, but may be apportioned,
or the whole may be allowed to him
■who, according to the circumstan-
ces, ought to have the same," Rev.
Code (1852), p. 298, § 12. Apart
from this, however, an action ol
debt can be brought b^' one admin-
istrator against the other for his
proportion of the commissions al-
lowed upon the settlement of the
accounts; Bush v. McComb, 2
Houston, 54fi.

Costs awarded against executors
or administrators are not allowed
in their accounts, " unless the court
shall certify the propriety of such
allowance, or there is other good
evidence that they were properly
incurred ;" Rev. Code, 1852, p. 308,
§ 45 ; but, as it seems to be thought
contrary to the weight of author-
ity elsewhere, that an executor
must maintain the validity of his
testator's will, the costs of such
actions, whether successful or not,
are held to be properly chargeable
to the estate ; Hearn v. Ross, 4
Harr. 101 ; Browne v. Rogers, 1
Houston, 458.

In Maryland, the act of 1198,
provided that tlie commissions of
an executor " shall be, at the dis-
cretion of the court, not less than
five per cent., nor exceeding ten
per cent, on the amount of the in-
ventory, including what is lost or
perished," together with an addi-
tional allowance for such costs and
extraordinary expenses, not per-
sonal, as the court might think
proper, and by a late statute it is
also enacted that " The Orphans'
Court shall fix the commissions of
executors within twelve months

from the grant of administration,
and in all subsequent accounts,
wherein executors shall charge
themselves with further assets;"
Laws 1860, p. 163; Rev. Code,
Art. 81, § lOT. And tlie discretion
of the Orphans' Court as to such
allowance is not subject to review ;
Scott V. Dorsey, 1 Harris & Johns.
232 ; Wilson v. Wilson, 3 Gill. &
Johns. 20 ; Brady v. Dilley, 2Y
Ind. 583. By the act of 1841,
(Rev. Code, 1860, Art. 81, § 106),
these commissi ons,'as well as those
allowed to trustees (Rev. Code,
1860, Art. 81, § 120) are subject to
a tax of ten per cent, in favor of
the State ; William v. Masher, 6
Gill. 454 ; Currigs v. The State,22
Md. in ; but by the act of 1860,
(L;iws p. 163 ; Rev. Code, Art. 81,
§101); when an executor *' elects
to take less than five per cent, com-
missions, the tax shall be charged
only on the commissions" received
by him.

The statute has been construed
to give executors a right to their
commissions even although thetes-
tators will should expressly de-
clare otherwise ; M'Kim v. Dun-
can, 4 Gill, "72; and it has been
generally extended to trustees ;
Ringgold v. Ringgold, 1 Harris &
Gill, 27 ; Nicholls v. Hodges, 1
Peters, S. C. Rep. 565 ; West v.
Smith, 8 How. U. S. R. 411;
Northern R. R. v. Keighler, 29
Md. 580 ; receivers of insolvent
corporations; Abbott v. Steam
Racket Co., 4 Maryland Ch. Dec.
315 ; and the like. Special rules
of court have regulated the com-
missions to trustees for the sale of
real estate, a class of fiduciaries

ROBINSON V. PBTT

573

somewhat analogous to receivers ;
these are on the first $100 seven
per cent. ; on the second, six per
cent. ; on the third, five ; on the
fourth, four; on the fifth, three and
a half; on the sixth, the same ; on
tlie seventh and eighth, three ; and
on the ninth and tenth, two and a
half; and three per cent, on all
above $3000, besides an allowance
for expenses not personal. This
allowance to be increased in cases
of postponement at the request of
defendants, or extraordinary diffi-
culty and trouble, and to be less-
ened in case of negligence, &c., at
the discretion of the chancellor.
This commission " is given to him
as a compensation for his trouble
and risk in making the sale, in
bringing the money into court and
paying it away in the manner di-
rected, or in other words, for the
performance of all the duties speci-
fied in the decree, and the subse-
quent orders, in relation to the sale
and its proceeds ;" Gibson's case,
1 Bland, 147 ; but such commission
is forfeited by misconduct ; Gor-
don v. Matthews, 30 Md. 235.

With respect to trustees ordi-
narily, though the courts lean
strongly against per diem allow-
ances ; Ringgold v. Binggold, 1
Harris & Gill, 27 ; yet the commis-
sions seem rather liberal, and as a
general rule, chancery, in that
state, treats executors and trus-
tees with indulgence, both as to
commissions and other expenses,
except where the fiduciary has
been guilty of negligence, or other
misconduct in which case his com-
pensation will be reduced to the
minimum rate; Eversfield y.

Eversfield, 4 Har. & Johns. 12 ;
Diffenderffer v. Winter, 3 Gill &
Johns. 847 ; Waring v. Darnell,
10 Id. 120. Nor will commissions
be allowed upon a surcharge ;
Thomas v. County School, 9 Gill
& Johns. 115, and in Ridgely v.
Gittings, 2 Har. & Gill, 61, and
Northern Railroad v. Keighler, 29
Md. 580, compensation was refused
to trustees who promised to un-
dertake the trust upon payment of
their expenses only.

In regard to costs it is provided
by the code that " executors and
administrators shall be entitled to
and answerable for costs in the
same manner as the deceased
would have been, and shall be al-
lowed for the same in their ac-
counts, if the court awarding costs
against them shall certify that
there were grounds for instituting,
prosecuting, or defending the ac-
tion on which the judgment or de-
cree shall have been given against
them; Rev. Code, Art. 93, § 105;
and, if the fiduciary acts in good
faith, necessary expenses and
charges, including counsel fees
incurred in the execution of the
trust, are allowed with great liber-
ality, even where the proceedings
were unsuccessful, or were incurred
in endeavoring to sustain the
validity of the will ; Green v. Put-
ney, 1 Md. Chan. Dec. 267 ; Jones
V. Btockett, 2 Bland, 417 ; Chase v.
Lockerman, 11 Gill & Johns. 185 ;
Compton v. Barnes, 4 Gill, 57 ;
Ux parte Young,Sld. 287 ; Dorsey
V. Dorsey, 10 Md. 471 ; Edelen v.
Edelen, 11 Id. 415; Leiman's Es-
tate, 32 Id. 225 ; and in the recent
case of Brady v. Miller, 27 Md.

574 COMMISSIONS OF TRUSTEES AND EXECUTORS.

582, certain costs arising from the
unsuccessful attempt " made hon-
estly and in good faith," by a trus-
tee to establish a claim of his own
against the trust fund were allowed
as a charge upon the estate. And
although in Williams v. Mosher,
6 Gill, 454, the court affirmed a
decree which disallowed trustees a
fee paid their counsel for pre-
paring their answer, yet it is usual
to allow an attorney five per cent,
upon the amount collected ; Bank
V. Martin, 3 Md. Chan. Dec. 225.
Counsel fees are not, however, al-
lowed in an appeal where the judg-
ment of the court below was suffi-
cient to protect the executor, and
it was not his duty to appeal ;
Dorsey v. Dorsey, 10 Md. 471 ; and
an administrator who employed an
agent to collect money for the es-
tate was not allowed credit for
what he had paid him, the agent
being neither a public officer nor
an attorney, and no legal process
being in any way necessary ;
Gwynn v. Dorsey, 4 Gill & Johns.
453. So where executors were
negligent in presenting their de-
fence to a claim against the estate,
although such defence was finally
successful; Donaldson v. Raborg,
28 Md. 34 ; so too, where an exe-
cutor unsuccessfully attempted to
charge the estate with unjust
claims ; Billingslea v. Henry, 20
Md. 282 ; and in the very recent
case of Browne v. Preston, 88 Md.
3*73, it was held that an agreement
by an administrator, for the pay-
ment of contingent counsel fees
could not, through the medium of
the Orphans' Court, be enforced
against the estate of the decedent,

and although the agreement was
made by the administrator before
his appointment, yet in the view
taken by the court, this was im-
material.

Nor are the courts of Maryland
averse to allowing a fiduciarj' who
has performed services for the
benefit of the estate, a remunera-
tion in excess of his commissions.
Thus in Lee v. Lee, 6 Gill & Johns.
320, it was said, " an executor may
■ employ and pay out of the assets in
his hands as many as are necessary
for the completion and preserva-
tion of the crops. If, with more
advantage to the estate, he acts in
the capacity of an overseer him-
self, it is competent for the Or-
phans' Court to allow him a rea-
sonable compensation for his
services," and in Edelen v. Edelen,
11 Md. 415, a similar decision was
made. So double commissions
have been allowed to an executor
who was also trustee ; Mitchell v.
Holmes, 1 Md. Chan. Dec. 28T,
and so of a trustee acting as coun-
sel for the estate ; Post v. Mackall,
8 Bland, 529 ; Bank v. Martin, 3
Md. Chan. Dec. 225.

In case of a partial administra-
tion by an executor, the court,
(under the Act of 1820, "in which
the minimum rate of allowance is
purposely omitted,") " have un-
questioned power to allow such
compensation as the services actu-
ally merit, . . . thej' may give
one per cent, and even less, if ne-
cessary. But when there has been
a full administration, the court can-
not descend below five per cent. ;"
M'Pherson v. Israel, 5 Gill &
Johns. 60 ; Parker v. Gwynn, 4

ROBINSON V. PETT.

575

Md. 423 ; and the time of allowing
the compensation seems within the
discretion of the court. " Of
course they would aim to make
the commission allowed corres-
pond with the duties performed,
and in passing every account,
would look to the advance made
by the administrator ;" Gwynn v.
Doraey, 4 Gill & Johns. 453 ; but
the allowance of a maximum com-
mission to the first administrator,
does not defeat the riglit of one
subsequently appointed to a com-
mission on the balance received
from the former ; Lemon v. Sail,
20 Md. 168.

In Virginia the code of 1813
(tit. 39, ch. 128, §25) directs
that the commissioner, in stating
and settling the accounts of any
" fiduciary," (which includes,
" every personal representative,
guardian, executor, or commit-
tee,") shall allow any reasonable
expenses incurred by him as such,
and also, except in cases in which
it is otherwise provided, a reasona-
ble compensation in the form of a
commission on receipts or other-
wise. This provision has been
taken substantially from the prior
acts of 1820 and 1825, and there
were other earlier statutes. As a
general rule, except where a legacy
is given to executors, or a specific
sum provided in the creation of
the trust (in which case commis-
sions are not allowed in addition ;
Jones V. Williams, 2 Call, 105), it
is held that no more than five per
cent, on the amount of the receipts
can be allowed ; Oranberry v.
Oranherry, 1 Washington, 246;

Taliaferro v. Miner, 2 Call, 197;
Miller v. Beverleys, 4 Hen. &
Munf. 420; Triplett v. Jameson,
2 Munf. 242 ; Hipkins \. Bernard,
4 Id. 83 ; Kee v. Kee, 2 Grattan,
132 (even though a testator has
directed that his executors sliall
be "handsomely paid," Waddy v.
Hawkins, 4 Leigh, 458) ; and this
also applies to commissioners who
sell real estate under decree of
court ; Lyons v. Byrd, 2 Hen. &
Munf. 22, and to a consignee ;
Deanes v. Scriba, 2 Call, 416.
But, said Tucker, J., in Fitzgerald
V. Jones, 1 Munf. 156, "I very
much incline to think that where
the management of an estate is
thrown upon an executor, and the
care and education of a family
of children with it, that he
ought to have a more liberal al-
lowance than a bare commission
of five per cent, upon his receipts
or expenditures. . . He ought
to be compensated accordingly,
whenever it appears that he has
faithfully discharged the extraor-
dinary duty imposed upon him by
his testator," and in that case the
executor was allowed two and a
half per cent, in addition to the
usual commission of five per cent.
So, in the Very recent case of
Boyd V. Oglesby, 23 Gratt. 674,
an administrator, who also acted
as agent for the purpose of wind-
ing up the business of the firm of
which the intestate had been a
member, was allowed in the set-
tlement of his accounts in 1842,
five per cent, not only upon the
receipts, but upon many of the dis-
bursements, for which, amongst
other grounds, the complainant, in

576 COMMISSIONS OF TRUSTEES AND KXECUTOKS.

1858, filed a bill to re-open the set-
tlement, but the Court, in dismiss
ing the bill, said "It is usual,
and we think most proper, to al-
low commissions only on the re-
ceipts, but in this case commis-
sions are not allowed on all the
receipts and disbursements, and we
find from an examination of the
accounts, that five per cent, com-
mission upon all the receipts
alone, with which the said Boyd
is charged, both as administrator
and as agent of the surviving
partner, would be inconsiderably
less than the commission which
he has been allowed. This in-
cludes a commission on the money
borrowed, which was a most ad-
vantageous oi^eration for the es-
tate and firm, and involved perso-
nal responsibility and labor on the
part of the administrator and
agent, which ought to have enti-
tled him to a commission, though
none was claimed by him. It
also includes a commission on all
moneys which passed through the
hands of the administrator as such,
or as agent, all of which involved
trouble and responsibility, though
upon a considerable part thereof
he did not claim commissions, for
the reason, doubtless, that upon a
part of the funds which passed
through his hands, he had been al-
lowed commissions both on the re-
ceipts and disbursements. But
there is no law which prescribes
what commission shall be allowed
an executor or administrator.
The amount that should be al-
lowed him is not fixed by law, but
rests in the discretion of the court ;
and what court is so competent to

make the allowance as the court
of probate ? In some cases, per-
haps, less than five per cent, and in
others as high as ten per cent., has
been allowed, and approved by this
court. We are disinclined to dis-
turb the settlement upon this
ground, especially after it had
been so long acquiesced in by the
widow and the guardian of the in-
fant distributees. Indeed it seems
to us that the administrator's com-
pensation is not greater than his
services were worth to the estate."
So where estates have been
large and very troublesome, ten
per cent, has been allowed in full
for Commissions and the expense
of employing clerks and agents ;
M'Call v. Peachy, 3 Munf 306,
and sometimes five per cent, in
addition to those expenses ; Hip-
kins V. Bernard, 4 Id. 93 ; Far-
neyhough v. Dickerson, 2 Robin-
son, 589. So, too^ ten pel cent, has
been allowed where the debts
were small and numerous, and the
debtors presumed to be much dis-
persed ; Cavendish v. Fleviming,
3 Munf. 201. But where debtors
resided near the executor, he was
not allowed commissions to attor-
nej's for collection, in the absence
of evidence that it was attended
with difBculty ; Garter v. Cutling,
5 Munf. 241 ; and in Sheppard v.
Stark, 3 Munf. 29, five per cent.
was given in lieu of all expenses ;
but in general, these, and "all reason-
able charges and disbursements"
are allowed ; Lindsay v. Hower-
ton, 2 Hen. & Munf. 9 ; Nimmo v.
The Commonwealth, 4 Id. 57 ;
Hogan v. Duke, 20 Gratt. 259.
Although in Hipkins v. Bernard,

ROBINSON V. PETT.

577

2 Hen. & Munf. 21, an executor
was held not entitled to charge
commissions for turning certain
bonds into mortgages, yet in the
same case, (4 Munf. 83), this was
overruled and the commissions al-
lowed. So where bonds, instead
of being collected, were transferred
to the legatees and received by
them ; Farneyhough v. Dickerson^
2 Robinson, 582 ; or where grain,
which otherwise it would have
been the executor's duty to sell as
perishable, was divided in kind
among the legatees ; Glaycomb v.
Claycomh, 10 Grattan, 589 ; but
not so, upon the appraised value
of slaves so divided, where the
condition of the estate did not re-
quire their sale. lb. Nor can
commissions can be charged on a
debt due by the executor to the
estate ; Farneyhough v. Dicker son,
supra; and notwithstanding that
compensation is in a manner se-
cured by statute it seems to be
held that its allowance, neverthe-
less, depends upon the bona fides
of the fiduciary ; Wood v. Garnett,
6 Leigh, 27"? ; Boyd v. Boyd, 3
Gratt. 125. Under the express
provisions of the Act of 1825
(Code, 1873, tit. 39 ch. 128, § 10),
it has been held that an executor
who failed to file his accounts in
conformity with its requisitions
was deprived of all compensation,
no matter how meritorious his
conduct might have been; Wood
V. Garnett, supra ; Turner v.
Turner, 1 Gratt. 11; Stroiher v.
Sill, 23 Id. en ; and partial pay-
ments made by the executor to
legatees, from time to time, though
the amount paid may exceed that
VOL. II 37

to which they were ultimately
found to be entitled, do not con-
stitute such a settlement of the ac-
count as to take the case out of
the statute ; Nelson v. Page, 7
Grattan, 166.

Fiduciaries will be personally
liable for costs " when the court
enters of record that, if he had
prudently discharged his duty the
suit or motion would not have
been brought or made," Code,
1873, tit. 51, ch. 173, §20.

The rule of the commonlaw origi-
nally prevailed in North Caro-
lina ; Schaw v. Schaw, 1 Taylor,
1-25 ; but, in 1799, it was altered
by an act 'whose provisions were
substantially followed in the sub-
sequent Revised Statutes of 1836-
7, (Ch. 46, §29,) which directed
that courts should take into con-
sideration the trouble and time
expended by executors in the
management of the estate, and
make an allowance not exceeding
five per cent, for the amount of the
receipts and expenditures which
should appear to have been fairly
made ; which amount they might
retain as well against creditors as
legatees and distributees, together
with the necessary charges and
disbursements theretofore allowed.
The Revised Code of 1854 (ch.
46, sec. 38, Rev. Code, p. 288), has
substantially re-enacted these pro-
visions, and added that in sales of
land by license of court, for pay-
ment of debts, commissions shall
not be allowed on any larger
amount of the proceeds, than the
sum actually applied in payment
of debts ; and the provisions of

578 COMMISSIONS OF TRUSTEES AND EXECUTORS.

these acts are applied also to
guardians ; Hodge v. Hawkins, 1
Dev. & Bat. Eq. 561. " The court
has the power," it was said in
Bond V. Turner, 2 Taylor, 125, in
speaking of the act of 1T99, "of
allowing five per cent, commission
on the receipts, and the same on
the disbursements. It has a dis-
cretionary power to allow less, but
not more than five per cent. ;" and
this amount was, in Blount v. Haw-
kins, 4 Jones Eq. 162, allowed
upon receipts, and in Covington v.
Leak, 65 N. C. 594, upon both
receipts and disbursements. But
upon the proceeds of a master's
sale received by an executor, one
per cent, is held to be sufficient ;
Graves v. Graves, 5 Jones, Eq.
280, and where the estate is re-
ceived and disbursed in large
amounts without litigation, three
per cent, is considered to be an
adequate compensation ; Graves v.
Graves, supra ; so where the set-
tlement of the estate has been
chiefly conducted by counsel, two
and a half per cent, on each side of
the account was allowed ; State v.
Foy, 65 N. C. 27T ; so, too, where
executors, under arrangement with
a guardian, transferred to him
bonds instead of collecting their
proceeds, the commissions were re-
duced to two and a half per cent. ;
Walton V. Avery, 2 Dev. & Bat.
Eq. 405 ; and in Turnage v. Green,
2 Jones Eq. 66, it was said, " it is
proper that this court should de-
clare that it will not sanction a
charge by a trustee of five per cent,
commission for simply receiving
and paying over dividends of bank
stock."

The right to commissions has,
however, been recognized even
where the executor has been
charged with compound interest ;
Peyton v. Smith, 2 Dev. & Bat. Eq.
325 ; so, where a legacy is left to
him, unless it appear that it was
given in satisfaction, or in lieu of
commissions ; Oden v. Windley, 2
Jones, Eq. 445. But in Arnold v.
Byars, 2 Dev. Eq. 4, it seems to
have been thought that a claim to
commissions would be forfeited by
dishonest conduct, and in Finch v.
Bayland, lb. 141, it was held to be
a general, though not a universal
rule, that commissions are not to
be allowed where no regular ac-
counts have been kept. It is obvi-
ous, however, that the commissions
of a deceased executor are not for-
feited by reason of the misconduct
of his administrator in settling the
estate of the first testator ; Thomp-
son V. McDonald, 2 Dev. & Bat.
Eq. 481.

Besides their commissions, ex-
ecutors are also allowed their
actual and reasonable expenses
necessary for the faithful dis-
charge of their duty, such as those
of attending necessary sales, or
sending an agent out of the State ;
Whitted V. Webb, 2 Dev. & Bat. Eq.
442 ; counsel fees ; Hester v. Hes-
ter, 3 Iredell, Eq. 9 ; Poindexter v.
Gibson, 1 Jones, Eq. 44 ; Morris
V. Morris, Id. 326 ; costs incurred
in actions honestly litigated ; Leigh
V. Lockwood, 4 Dev. Eq. 5T7 ; Col-
lins V. Boberts, 6 Ired. Eq. 201 ;
Arrington v. Coleman, 1 Murph.
102 ; but these allowances are not
made when they are unreasonable
in amount, or unnecessary for the

ROBINSON V. PETT.

579

estate; Fairhairn v. Fisher, 5
Jones, Eq. 385 ; Colsom v. Maztin,
Phillips, Bq. 125 ; State v. Foy, 65
N. C. 275 ; Johnston v. Haynes,
68 Id. 509 ; Moore v. Shields, 69
Id. 50 ; nor will compensation be
given for personal services in ad-
dition to travelling expenses and
commissions, " as the latter are al-
lowed for the very purpose of re-
munerating an executor or admin-
trator for the personal attention
which he devotes to the estate, and
he is not to be allowed to make an
extra charge for it ;" Morris v.
Morris, 1 Jones, Eq. 326. The al-
lowance of commissions by a refe-
ree is usually adopted by the court
unless shown to be erroneous ;
Johnston v. Haynes, 68 N. C.
514 ; State v. Foy, 71 Id. 527, and
as to the correction in a court of
equity, of commissions allowed by
masters or county courts, see
Thompson v. McDonald ; Graham
V. Davidson, 2 Dev. & Bat. 155 ;
Spurhill V. Cannon, lb. 400 ; Wal-
ton V. Avery, lb. 405 ; WJiitted v.
Webb, lb. 433. In Potter v.
Stone, 2 Hawks, 31 (overruled on
another point by Fx parte Hough-
ton, 3 Dev. Eq. 441), it was said,
" for the sake of future cases, we
think it right to add, that pay-
ments made to distributees on ac-
count of their portions, whether
before the administration is settled
or at the close of it, cannot be con-
sidered as expenditures, and there-
fore no allowance of commissions
can be made on them," and this
rule was subsequently approved in
Clark V. Blount, 2 Dev. Eq. 55,
and Peyton v. Smith, 2 Dev. & Bat.
Eq. 345. So commissions will not

be allowed upon payments made to
the fiduciary himself; Williamson
V. Williams, 6 Jones Eq. 62, nor
upon specific bequests, whether
consisting of money or slaves ;
Walton V. Avery, 2 Dev. & Bat.
Eq. 411 ; but where an administra-
tor purchased slaves for the benefit
of the estate under an execution
upon a debt due to it, and handed
them over specifically, a commis-
sion of two and a half per cent, was
given ; Sellers v. Ashford, 2 Ire-
dell Eq. 107 ; Washington v.
Emery, 4 Jones, Eq. 32 ; so where
executors have, virtute officii, the
management of a fund for an in-
fant under a trust for its accumu-
lation, the regular compensation
will be allowed them ; Perry v.
Maxwell, 2 Dev. Eq. 507 ; and
commissions are allowed guardians
upon the amount of bonds and
judgments delivered to the ward ;
Shepard v. Parker, 13 Ired Eq.
103; State v. Foy, 65 N C. 277.

The apportionment of commis-
sions among two or tnore, is always
regulated by the circumstances of
the case. " The fact of a joint
agency does not give the right to
one-half the value of the entire ser-
vices ;" Hodge v. Hawkins, 1 Dev
& Bat. Eq. 567 ; Grant v. Pride, 1
Dev. Eq. 259 ; Perry v. Maxwell,
2 Id. 507 ; and where an executor
has sufiered the personal estate to
go out of his hands, he is not al-
lowed to subject the real estate in
the hands of the heir, to a charge
for his services ; Newsom v. New-
som, 3 Iredell Eq. 411.

Up to the year 1833, it would
seem by the case of Boyd v. Haw-
kins, 2 Dev. Eq. 211, that the ex-

580 CO jftviISSIONS OF TRUSTEES AND EXECUTORS.

tension of these rules to trustees
liad not been formally recognized
from the bench ; on the contrary, it
was there said, "the farthest we
can go, is to jiermit a stipulation
for compensation at the contract-
ing of the relation " But on a
rehearing of that case (2 Dev. Eq.
334), it was said by Ruffln, J., who
delivered the opinion of the court,
" We are informed that it has been
usual in some parts of this State,
for trustees to cliarge for services,
and that the profession have no
decided opinion against it. The
amount will of course be according
to the circumstances, and not be-
yond that which would, under the
statutes, be made 'to executors;
and if fixed by the parties, it will
be subject to the revision of the
court, and be reduced to what is
fair, or altogether denied, if the
stipulation for it had been coerced
by the creditor as the price of in-
dulgence, or as a cover to illegal
interest, or the conduct of the
trustee has been mala fide and
injurious to the cestui que trud.
Whether it shall be given as a
commission or not, is hardly
worth disputing about ; that may
oe a convenient mode of comput-
ing in most cases, but the true ob-
ject is a just allowance for time,
labor, services and expenses, under
all the circumstances that may be
shown before a master." And this
was approved in Sherill v. Shu-
ford, 6 Iredell Eq. 228, and Raiford
V. Raiford^ lb. 495 ; and in In-
gram v. Kirkpatrick, 8 Id. 62, it
was held, that two and a half per
cent, charged by a trustee for tlie
benefit of creditors, on the pro-

ceeds of sale of real estate, was a
proper commission. But no addi-
tional compensation will be given
when the trust is attached to the
office of executor, and the custody
of the trust fund voluntarily as-
sumed by the latter; Haglar v.
McGombs, 66 N. Car. 351.

Under the statutes of South
Carolina, the courts in that state
seem to have felt themselves little
authorized to exercise a discretion
of their own. The Act of 1789
allowed to executors, administra-
tors, trustees and guardians, a sum
not exceeding fifty shillings for
every hundred pounds they should
receive, and a similar sum upon
all amounts they should pay away
in credits, debts, legacies, or other-
wise, during the continuance of
their administration, which com-
missions were to be divided be-
tween them in proportion to the
services by them respectively per-
formed; and they were also al-
lowed twenty shillings for every
ten pounds, " for all sums arising
by moneys let out at interest;"
Act of 13th March, 1789 (5 Stat-
utes, 112 ; Rev. Stat. 1873, p. 461,
§ 4) ; and by the Act of 1859 (Rev.
Stat. 1873, p. 462, §4), it is pro-
vided that the estate of a deceased
executor or administrator who has
settled his testator's estate, except-
ing the payment of the legacies or
distributive shares, shall be al-
lowed commissions for making
such distribution as well as re-
ceiving the amount thereof; and a
similar provision exists in favor
of guardians, when the money is
paid to the ward ; Rev. Stat. 1873,

ROBINSON V. PETT.

581

p. 485, § 11 ; Adams v. Lathan, 14
Rich. Bq. 304. The provisions of
the Act of '1789 were taken from
tlie seventh section of a prior stat-
ute passed in 1745, which further
declared that any executor, guar-
dian, or trustee, who should have
had extraordinary trouble in the
management of the estate, and
should not be satisfied with the
sums thus allowed, should be at
liberty to bring an action for ser-
vices, in which, however, the ver-
dict was to be limited to five per
cent, over and above the sums be-
fore mentioned; This section was
not repealed or supplied by the
Act of 1789; Ex parte Wither-
spoon, 3 Rich. Eq. 14, note. For
the Statutes of 1839 and 1846, as
to the commissions of the ordinary
in cases of derelict estates, see
Norton v. Gillison, 4 Rich. Eq.
219. In the recent case of The
College v. Willingham, 13 Rich.
Eq. 195, it was doubted whether,
under the then existing legislation,
an allowance of commissions could
be made to trustees, unless the
cestuis que trust were minors, but
this distinction is, apparently, not
recognized in the Revised Statutes
of 1873, p. 468, § 14.

The allowance given b}' these
statutes to executors has uniformly
been held to cover all those ex-
penses which are sometimes termed
personal ; Logan v. Logan, 1
M'Cord, Ch. 5. Thus the courts
have felt themselves bound to
strike out any charge for travel-
ling expenses, &c., and have re-
ferred the parties claiming them to
the action at law prescribed by the
statute ; Snow v. Collum, 1 Des-

saus. 542 ; although in Erwin v-
Seigling, Riley Ch. 202, the court
held that the extraordinary trou-
ble of an executor in going to and
from Cuba to attend to compli-
cated affairs of the estate was a
sufficient consideration to support
a gift of $1000 from the legatees ;
and a gross sum in lieu of all com-
missions, has been allowed a guar-
dian as a compensation for his ex-
penses and Commissions in collect- -
ing money in another State ; Huson
V. Wallace, 1 Rich. Eq. 18. In
Ruff V. Summers, 4 Dessaus. 529.
Dessaussure Ch., said, "it has
always appeared to me, that the
ground for compensation to exe-
cutors being made by law to rest
solely on the foimdation of money
received and paid away, is not a
perfectly reasonable rule, inasmuch
as there is often great service per-
formed by executors, where only
small sums of money are received
and paid away ;" it was, however,
held in that case, that the action
given to executors covered all
cases and was their only remedy ;
and, so, while an executor will be
allowed for amounts paid for ad-
justing complicated accounts of
the estate, yet he is not entitled
tp charge for adjusting his own
accounts ; Logan v. Logan, 1
M'Cord Ch. 1. "There is a dis-
tinction," said Johnson, J., in
Teague v. Bendy, 2 M'Cord Ch.
213, "between those services for
which a compensation is allowed
by the statute, and the expenses
incurred in the course of the ad-
ministration. The former referred
to those duties which an adminis-
trator is supposed to undertake,

532 COMMISSIONS OF TRUSTEES AND EXECUTORS.

and the latter, to such as require
the aid of professional skill, to
which he is not supposed to be
competent. The conduct and ar-
rangement of a law-suit, is an il-
lustration of the latter ;" Edwards
V. Crenahaw, Harper, 233; and
an executor will therefore be al-
lowed all expenses necessarily in-
curred in defending the probate
of the will ; Butler v. Jennings, 8
Rich. Eq. 87 ; M' Knight v. Wright,
] 2 Id. 229 ; but not the costs of
an unsuccessful appeal from a de-
cree reversing the judgment of the
ordinary ; M' Knight v. Wright,
supra. " The principle to be de-
duced from all the cases," it was
said in M'Glellen v. Hetherington,
10 Rich. Eq. 204, "is that the rep-
resentative should be reimbursed
from the estate for the expenses he
has incurred in litigation fairly
falling uijon him in his character
of trustee, especially when he has
been successful, although he may
have some interest in the suit. He
should have credit for all expendi-
tures for the preservation and
benefit of the estate, as for fees to
counsel for general advice in the
administration of the estate, for
resisting doubtful claims, for clear-
ing incumbrances, for obtaining
the instruction of the court in a
proper case for the settlement of
the estate, and like services," and
hence an executor, who was also
a devisee and legatee, was allowed
for an amount paid counsel for
their services in establishing the
will. But cou'nsel fees are not al-
lowed when paid to sustain the
position of the executor against
those beneficially interested; Vil-

lard v. Robert, 1 Strobh. Equity,
393 ; Garrett v. Garrett, 2 Id.
2T2; Wham v. Love, Rice Eq.
51 ; even when he successfully de-
fends himself from charges brought
against him. " That entitled him
to his costs. But though the court
has authority to decree costs ac-
cording to the merits of the case,
it can go no further. It has no
authority to decree counsel fees in
any case, unless they are incurred
as expenses of administration. An
executor's case differs in no respect
from any other case, and unless we
take upon us to decree counsel
fees in every case, according to
the merits of the parties, we have
no right to do it on the ground of
merit alone, in the case of an exe-
cutor ;" Atchison v. Robertson, 4
Rich. Eq. 41. Charges for over-
seers' wages, as well as for clerk
hire, auctioneers, &c., may prop-
erly be classed among those not
personal, since their employment
is, in general, directly for the bene-
fit of the estate ; Garrett v. Gar-
rett, 2 Strobh. Eq. 211, and in
many cases absolutely necessary,
and a guardian will be reimbursed
for the expenses of employing
agents out of the state, although
not obliged to do so ; Huson v.
Wallace, 1 Rich. Eq. 1 8 ; but an
executor is not allowed to charge
commissions and to credit himself
besides with wages for having
acted as overseer ; Jenkins v. Fich-
ling, 4 Dess. 310 ; Edmonds v.
Crenshaw, Harper, 232 ; nor with
a counsel fee for services performed
by himself as an attorney. "In
other words, he can make no con-
tract with himself. He may em-

ROBINSON V. PBTT.

583

ploy another overseer, another
physician, another lawyer, and pay
them for their services, ■which pay-
ment will be allowed him. But he
can make no bargain with him-
self;" Mayer v. Oalluchut, 6 Rich.
Eq. 2.

Where an executor pays money
to himself, as guardian, he is al-
lowed two and a half per cent, as
executor, for transferring it, and
the same commission as guardian,
for receiving it ; Ex parte Wither-
spoon, 3 Rich. Eq. 13 ; and in Deas
V. Span, Harper Eq. R. 2Y6, and
Gist V. Gist, 2 M'Cord, Ch. R.
4 '1 4, the statutes received a liberal
construction as to the allowance
of commissions on the amount of
bonds taken for the purchase-
money of real estate ; so where
the executor purchased the estate
himself; Vance v. Gary, Rich. Eq.
2. So where it was purchased by
a creditor, and an equitable ad-
justment made of the debits and
credits, though no money passed ;
Kiddle v. Hammond, Harper, 223 ;
or where a part of the assets of
the estate consisted in a debt due
by himself, which was therefore
considered as cash in his hands;
Griffin V. Bonham, 9 Rich. Eq.
"Tl ; though in Ball v. Brown,
Bailey Eq. 314, they were denied
on the proceeds of land sold under
decree in chancery for the fore-
closure of a mortgage, on the
ground that the money was neither
"received" nor "paid away" by
the executors. So full commis-
missions were refused where the
estate was, under a decree in equity,
paid over to a commissioner ;
Thompson v. Palmer,^ Rich. Eq.

141. In Hasan v. Wallace, 1 Id.
2, where an administrator was
compelled to account at an ad-
vanced price, for property of the
estate which he had brought at an
undervalue, he was denied com-
missions on the advance, and in
Edmonds v. Crenshaw, Harper,
233, where a testator bequeathed
to his executors ten per cent. " on
the whole amount of moneys to be
collected from the sale of the es-
tate, and on outstanding debts
due, or which might thereafter be-
come due," it was held that the
commission should be allowed on
the sums actually collected by
them, but not on those sums which
they failed to collect. In the re-
cent case of The College v. Wil-
lingham, 13 Rich. Eq. 203, the re-
sult of the decisions was thus
stated, " Where the legacy is of a
specific thing and to be satisfied
only by the delivery of that thing
in kind, commissions upon the
value of such legacy are not
chargeable upon the general estate,
much less upon the legacy itself;
Buff V. Summers, 4 Des. 529 ; but
whenever a demand against the
estate, whether debt, legacy, or
distributive share, is to be or may
be satisfied by payment in money,
there, if by consent or agreement
between the parties, property,
choses in action, stock, &c., are
given and received as money, and
at a money value, commissions are
chargeable."

The Act of 1T89 further pro-
vided that an executor should file
annual accounts, and a neglect so
to do forfeited all compensation.
A substantial compliance with this

584 COMMISSIONS OF TRUSTEES AND EXECUTOKS.

portion of the statute is always
insisted on ; Benson v. Bruce, 4
Dess. 464 ; Edmonds v. Crenshaw,
Harper, 233 ; and it has been held
that the failure to make the yearly
returns not only forfeits all
commissions, hut also all claim
for extra services ; Frazier v.
Vaux, 1 Hill Ch. 203 ; Wright v.
Wright, 2 M'Cord Ch. 196. In
certain cases, however, the lapse
of a few months over the time of
filing the last account has been
sanctioned ; Jenkins v. Fickling, 4
Dess. 310 ; Black v. Blakely, 2
M'Cord Ch. 8 ; and if the execu-
tor die before the time for submit-
ting his accounts, his commissions
are of course not forfeited, but his
representative is allowed a year
within which to do so. The pro-
vision has, moreover, been held
not to be retrospective, so as to
preclude an executor from com-
missions where for several years
prior to its passage, he had filed
no accounts ; Ramsey v. Ellis, 3
Dess. 78. But even when the ac-
count is regularly filed, yet if it be
unaccompanied by proper vouch-
ers, the commission will be disal-
lowed ; Black v. Blakely, supra ;
and in M'Dowell v. Caldwell, 2
M'Cord Ch. 59, it was said by the
court, that if a person who stands
in a fiduciary position suffers his
transactions to be involved in
obscurity, when by a proper atten-
tion to his duty and the interest
of his cestui que trust, he might
have removed it, if lie be entitled
to any remuneration, it furnishes
'a good reason for reducing it to
the lowest estimate.

The allowance of " ten per cent.

for all sums arising by moneys put
out at interest," was held in Ta-
vaux v. Ball, 1 M'Cord, Eq. 458,
to be " evidently intended as com-
pensation for the trouble of man-
aging the fund while in the hands
of the executor, and the two and
a half per cent, for paying away,
refers to the final disposition of it,
or in other words, to that moment
of time when the executor's power
over it ceases, or when he has dis-
posed of it in the manner directed
by the will of the testator. It
cannot, without great injustice, be
referred to a former time, for if it
was to be allowed for every appli-
cation or appropriation, the exec-
utor might, by letting out and
calling in at short periods, make
his commissions exceed any profits
which could be expected to arise
by way of interest. The mode of
determining what time he is to be
credited with it is by inquiring
whether he has made a final dis-
position of the fund." And it was
held that an executor was entitled
to two and a half per cent, for re-
ceiving money, ten per cent, on
the interest made by him on it, and
two and a half per cent, on the
capital and interest finally paid
over by him to the party inter-
ested. The same compensation was
also allowed when, instead of in-
vesting the money in other hands,
the executor, in good faith, suf-
fered it to accumulate in his own,
but when decreed to pay it over,
at the end of his administration,
no percentage was allowed him ;
Wright v. Wright, 2 M'Cord Ch.
192. In Briggs v. Holcomhe, 8
Rich. Eq. 16, the ten per cent, com-

ROBINSON V. PETT.

585

mission was declared to be limited
to cases where the money was made
an annually-accumulating fund by
the executor, and not to apply to
one where a simple balance was
found to be due by him, in which
ease he was only entitled to two
and a half per cent, for receiving,
and the same for paying it away ;
nor will an executor be entitled to
a commission of ten per centi for
paj'ing annually to a legatee, as
directed by the will, the interest
of a certain portion of the estate,
as such commissions were said to
be allowed only on interest re-in-
vested as principal ; Bobo v. Poole,
12 Rich. Eq. 224.

Tlie preceding rules have been
applied to trustees and receivers ;
Bona V. Davant, Riley's Ch. Cas.
44 ; with the exception of the ne-
cessity of making annual returns,
the neglect to do which, will not
cause a forfeiture of compensation
unless it appear that the estate has
suffei'ed from such omission ; Much-
enfoss V. Heath, 1 Hill Ch. 184.
They do not, however, apply to
cases where the trustees have ex-
pressly agreed to act without com-
pensation ; M'Gaw V. Blunt, 2
M'Cord, Eq. 90 ; Vestry v. Barks-
dale, 1 Strobh. Eq. 197 ; nor to
commissioners in equity, whose
compensation, regulated by a fee
bill, the court has no power to en-
large or modify ; Bona v. Davant,
supra ; and if the instrument cre-
ating the trust provides a specific
compensation, the trustee will be
bound by its terms ; College v.
Willingham, 13 Rich. Eq. 195.

In Georgia, the subject of com-

pensation to executors and trus-
tees is regulated by a statute as
old as 1764 (Prince Dig. 224; 2
Cobb Dig. 304), whose eleventh
section declares that it may be
lawful for every executor and ad-
ministrator, guardian and trustee,
for his care, trouble and attend-
ance in the execution of their sev-
eral trusts, to retain in his hands
a sum not exceeding fifty shillings
for every hundred pounds which
he should thereafter receive, ex-
cept on the appraised value of any
estate that should come into his
hands ; and the like sum of fifty
shillings for every hundred pounds
which he should pay away in debts,
legacies, or otherwise (excepting
also, the delivering up any such
estate to the persons entitled to
the same, during the course and
continuation of his management or
administration ; Ex parte Burney,
29 Ga. 33) ; and so in propoi-tion
for any sum less than one hundred
pounds ; provided that no execu-
tor, &c., should, where he had
power so to do, for his trouble in
letting out and lending any sum of
money upon interest and again re-
ceiving the moneys so lent, be en-
titled to receive any sum exceed-
ing twenty shillings for every ten
pounds for all sums arising by
.moneys lent to interest so to be
received, and in like proportion for
a larger or lesser sum ; and that
no executor, &c., who was, or might
be, a creditor of any testator or
intestate, or to whom might be
left or bequeathed, any sum of
money, or other estate, should be
entitled to any commissions for
the payment to themselves, of any

586 COMMISSIONS OF TRUSTEES AND EXECUTORS.

such debts or legacies : but as it
might be very difficult (the" statute
goes on to say) to ascertain the
proper and adequate allowance to
be made in all cases, and as the
sums thereinbefore allowed might
not be sufficient compensation for
the care, trouble and pains which
executors, &c., might take in some
particular cases, it was provided
that any executor or trustee who
should have had extraordinary
trouble in the management of the
estate, and should not be satisfied
with the sum thereinbefore men-
tioned, should be at liberty to
bring an action for his services,
and the verdict and judgment
thereon should be conclusive ; pro-
vided that no verdict should- be
given for more than fifty per cent,
over and above the sums allowed
by the statute.

A subsequent statute, passed in
1792, provided that if an executor
should neglect to render annual
accounts to the register of pro-
bates, he should not be entitled to
any commissions for his trouble in
the management of the said estate,
and the fullest effect was given to
this statute by holding (contrary to
the construction put upon a simi-
lar statute in South Carolina ;
Wright v. Wright, 2 M'Cord Ch.
200 ;) that the executor forfeits
not only his commissions on the
returns for the neglected year, but
all commissions for his trouble in
the management of the estate ;
Fall V. Simons, 6 Georgia, 2t4;
Atkins V. HiaU, T Id. 515 ; Kenan
V. Paul, 8 Id. 417. In conse-
quence of these decisions, the Act
of 22d February, 1850 (2 Cobb,

Dig. 340), provided that when,
from providential cause, any trus-
tee should fail to make returns by
the time specified, the court might,
by special order, save him from
the penalty of forfeiture of com-
missions by reason thereof; and
that if any executor, &c., should
fail to make a return within the
time required by law, he should
not lose the commissions on any
returns made in due time.

Commissions on legacies or in-
vestments prescribed by the will
of the testator, are primarily pay-
able from the residuum, but if
there is no residue, then the lega-
tees are liable for the same ; Wil-
liamson V. Wilkins, 14 Ga. 416;
and where an executor of an ex-
ecutor administers the estate of
the first testator, he is entitled to
commissions from the latter for
the payment of pecuniary legacies
therefrom ; but, obviouslj', he
should not receive commissions
for such services from the estate
of his immediate testator ; In re
Jones, 25 Ga. 414.

The statutory provision in refer-
ence to commissions upon reinvest-
ments of interest, has been said to-
be " only a proviso that the com-
mission shall not exceed ten per
cent, on the interest," and hence it
rests within the discretion of the
court to allow any rate of compen-
sation between two and a half and
ten per cent. ; Royston v. Eoyston.
29 Ga. 104 ; Cartledge v. Gutliff,
Id. 769.

There appears to be no disposi-
tion to restrict the allowance to
fiduciaries for the expenses of their
administration; Royston v. Roys-

ROBINSON V. PBTT.

587

ton, supra ; Bust v. Billingslea, 44
Ga. 306 ; although, of course, the
estate is not to be charged with
payments made to counsel retained
todefend an executor from a charge
of devastavit ; Moses v. Moses, 50
Ga. 33. In Lowe v. Morris, 13
Georgia, 169, it was held that
trustees had not only an inherent
right to be reimbursed all expenses
properly incurred in the execution
of their trust, but were, moreover,
entitled to compensation for time
and services in its management,
and that evidence in that behalf
ought to have been received by the
court below ; and in Burneg v.
Spear, It Id. 225, it was further
held that although a court of chan-
cery would not, in general, allow a
trustee to encroach upon the capi-
tal of the trust estate, yet that in
cases where the income was not
sufficient, the commissions of the
trustee might properly be paid out
of the corpus of the estate.

In Alabama it is provided by
the Revised Code, that "execu-
tors and administrators may be
allowed such commissions on all
receipts and disbursements by
them as such, as ma}' appear to the
probate court a fair compensation
for their trouble, risk and respon-
sibility, not to exceed two and a
half per cent, on the receipts, and
the same per centage on the dis-
bursements; and the court may
also allow actual expenses, and for
special or extraordinary services,
such compensation as is just," and
"upon the appraised value of all
personal • property, and on the
amount of money and solvent notes

distributed by executors and ad-
ministrators, they shall be allowed
the same commissions as upon
disbursements ;" Revised Code,
§§ 2161, 2162 ; but independently of
all statutory enactments, the doc-
trine of compensation to those
acting in a fiduciary capacity, has
formed part of the common law
of that State; Spencey. Whittaker,
3 Porter, '32T ; Phillips v. Thomp-
son, 9 Id. 667 ; Bothea v. M'Gall,
5 Ala. 314; Carroll v. Moore, 7
Id. 617; Benford v. Daniels, 13
Id. 673 ; the allowance being pro-
portioned to the trouble or respon-
sibility incurred ; Gould v. Hays,
25 Alab. 432. It was said by
Goldthwaite, J., in Harris v. Mar-
tin, 9 Id. 899, " It is the usual and
common practice to allow execu-
tors, administrators, and guardians
a per centage upon the amount of
the receipts and disbursements, as
a compensation for the perform-
ance of the trust. This percent-
age has never been fixed by
statute, and until some specific
rule is declared upon the subject,
it is evident each case must be
governed by its peculiar circum-
stances. It is apparent, however,
that the quantum of trouble and
loss of time, is not the only mat-
ter tQ be considered; as the settle-
ment of an estate of $500 may in-
volve as much difliculty as one of
$50,000. The compensation must
also, to a great extent, be con-
trolled by the amount of the
estate," but, prior to the above
statute, five per cent, upon the re-
ceipts, and two and a half per cent,
upon the disbursements, seems to
have been thought to be the usual.

588 COMMISSIONS OF TRUSTEES AND EXECUTORS.

allowance in ordinary cases ; Magee
V. Cowperthwaite, 10 Alab. 968;
Pinckardv. Pinckard, 24 Id. 250 ;
Bendall v. Bendall, Id. 306 ; Pear-
son V. Barrington, 32 Id. 2Y0 ; al-
though in Ashurst v. Ashurst, 13
Alab. Y82, it was said to require
'* clear and convincing proof " to
justify such allowance. While, how-
ever, it is admitted that the English
rule has never prevailed ; Bothea
V. MCall, 5 Alab. 808; yet these
amounts are, it is said, " scruti-
nized with jealous watchfulness ;"
Harris v. Martin, supra ; though
where the fiduciary has shown bona
fides, his commission and other
expenses, such as counsel fees, &c.,
are willingly allowed ; Harris v.
Martin, supra ; Hearns v. Savage,
16 Alab. 291 ; Williamson v.
Mason, 23 Id. 489 ; Pinckard v.
Pinckard, 24 Id. 250 ; Pearson v.
Darrington, 32 Id. 250 ; Hender-
son V. Simmons, 35 Id. 292 ;
Pickens v. Pickens, 35 Id. 452 ;
Harris v. Parker, 41 Id. 624 ;
Ivey V. Coleman, 42 Id. 418 ; and,
if no negligence appear, the result
of the action is immaterial ; Tay-
lor V. Kilgore, 33 Ala. 214; Hol-
man v. Sim, 39 Id. 709 ; but it
must be affirmatively proved that
the expenses have been actually
paid ; Modawell v. Holme§, 40
Alab. 392 ; Bates v. Vary, Id.
422. Such expenses are, however,
refused when either unnecessary ;
Bendall v. Bendall, 24 Alab. 306 ;
Pearson v. Darrington, 32 Id.
229 ; or for the benefit of the
fiduciary, or caused by his miscon-
duct ; Rev. Code, § 2149 ; Jones v.
Dyer, 16 Alab. 221 ; Pearson v.
Darrington, supra ; Anderson v.

Anderson, 3T Alab. 683 ; Morrow
V. Allison, 39 Id. 70 ; Mims v.
Mims, Id. 716 ; and in Smith v.
Kennard, 38 Alab. 695, where a
protracted litigation resulted from
the mutual errors of the distribu-
tees and the executor, the latter
was allowed to charge the estate
with one-half of the expense
thereof.

Prior to the adoption of the
Code, the power of tlie court to
compensate by per diem allow-
ance, or specific charge, was un-
questioned ; Marshall v. Holloway,
2 Stewart, 453 ; O'Neil v. Donnell,
9 Alab. 738 (though they leaned
strongly against such a mode of
compensation ; Magee v. Cowper-
thwait, 10 Alab. 968) ; and by the
act of 1841 (Clay, Dig. p. 228),
when by will, an estate was direc-
ted not to be sold, but kept to-
gether for distribution at a future
day, the court had power to allow
in lieu of commissions, such an-
nual compensation as should be
reasonable, regard being had to
the amount of labor performed,
responsibility involved, and the
value of the estate ; and this act
was held not to be retrospective in
its operation ; Gould v. Hayes,
supra.

But since the code the ordinary
services of a fiduciary can only be
compensated by a sum not exceed-
ing the amount therein mentioned,
and evidence tending to prove the
insufliciency of the allowance will
not be received ; Neiuberry v.
Newberry, 28 Alab. 691 ; Neilson
V. Gook, 40 Id. 498. Where, how-
ever, the services are, in the lan-
guage of the statute, '' special or

ROBINSON V. PETT.

589

extraordinary,'' that is, such as do
not form part of the customary
or regular duties of the office, ad-
ditional remuneration will be
given with much liberality. Thus
this compensation has, in addition
to the statutory commission, been
allowed to executors for superin-
tending the estate and loaning the
funds thereof; lieese v. Graham,
29 Alab. 91 ; loey v. Coleman, 42
Id. 410 ; and in the very recent
case of Waller v. Bay, 48 Id. 468,
a large additional allowance was
made to the administratrix of an
insolvent who managed the estate
in pursuance of directions con-
tained in the will, and the sum
was directed to be paid in prefer-
ence to the claims of the credi-
tors. It has, however, been obvi-
ously held that the general servi-
ces of an executor in reference to
a pending litigation concerning
the estate; Holman v. Sims, 39
Alab. 709 ; Docherry v. McDowell,
40 Id. 4Y6 ; or of a guardian
merely compounding the income
derived from the property of the
ward; Allen v. Martin, 36 Alab.
330 ; are neither special nor extra-
ordinary. As to compensation to
a bank director, see Alabama
Bank v. Collins, 7 Alab. 102.

Commissions can only be
charged upon such portion of the
inventory as consists of money,
the "receipts" mentioned in the
code, being construed to mean
pecuniary assets ; Wright v. Wil-
kinson, 41 Alb. 268 ; nor will com-
missions be allowed upon sums
raised by accepting drafts and
advancing money to meet the lia-
bilities of the estate, as such acts

do not pertain to the office of an
executor or administrator ; Pear-
son V. Darlington, 32 Alab. 228.
So, too, distribution by an ex-
ecutor or guardian (whose com-
pensation is governed by the rules
relating to executors ; Allen v.
Martin, 34 Alab. 442; S. C. 36,
Id. 332) is not a disbursement
within the meaning of §2161
of the Code; Jenkins v. Jenkins,
33 Alab. 731 ; Allen v. Martin,
supra.

The compensation though rather
matter of grace than of right, and
depending entirely upon the bona
fides of the trustee ; O'Neil v.
Donnell ; is yet always allowed
except in cases of gross negligence
or wilful default resulting in in-
jury to the estate ; Powell v. Pow-
ell, 10 Alab. 914,; Gould v. Hayes,
19 Id. 462 ; Stewart v. Stewart, 31
Id. 217; Pearson v. Darlington,
32 Id. 270; Smith v. Kennard, 38
Id. 700; Harris v. Parker, 41 Id.
604 ; Ivey v. Coleman, 42 Id. 418 ;
or where the executor or trustee
refuses to account ; Hall v. Wil-
son, 14 Ala. 295 ; and is not with-
held, for the omission to make an-
nual returns, as required by the
statute; Craig v. M'Gehee, 16
Alabama, 48 ; Gould v. Hayes, 19
Id. 462 ; Neilson v. Cook, 40 Id.
498. Double compensation has
also been allowed to an executor
acting in his capacity of coun-
sel for the estate, and he was held
to be entitled to receive " not the
amount such services are usually
rated at, but what an administra-
tor would feel authorized to pay
an attorney, taking into considera-
tion the circumstances of the case ;"

590 COMMISSIONS OF TRUSTEES AND EXECUTORS.

Harris v. Martin, 9 Alab. 900 ;
Morgan v. Nelson, 43 Id. 586. In
Donelson v. Posey, 13 Id. 752, an
attempt was made to set aside a
voluntary assignment, because,
among other grounds, it allowed
to the trustee a commission of
twelve and a half per cent. ; but
the court said that while the com-
mission was greater than that usu-
ally allowed, yet that the trustee
had " to cqilect many, and perhaps
small accounts, and his duties em-
braced a settlement of the affairs
of a dissipated and reckless man,
whose business was doubtless con-
fused and difficult to arrange.'' If
the opinion of the Court was based
upon the estimated value of the
services no exception can be taken
to it, but if, as seems to be the
case, the amount was allowed, ow-
ing to the absence of proof that
it was unconscionable, the decision
is open to the objections pointed
out in Omen's Estate, 1 Ashmead
(Pa.) SI"! ; and Barney v. Griffin,
2 Comstock, 3'I2, supra.

The Mississippi statute (Hutch.
& How. Dig. p. 414, § 96), like
that of Maryland, allows to exe-
cutors such compensation as shall
be reasonable and just, not less
than five, nor exceeding ten per
cent, of the amount of the ap-
praised value ; and this does not
mean solely on the amount of the
inventory, but on the whole estate ;
Merrill v. Moore, 1 Howard, 292 ;
Cherry v. Jarratt, 3 Cushman,
221 : including the real estate,
when its proceeds pass through
their hands ; and the allowance is
made only on the final settlement ;

Shirtleff v. Witherspoon, 1 Sm. &
Marsh. 622 ; but an administrator
cannot charge the realty with the
expenses of administering the per-
sonalty, when the latter was ade-
quate for that purpose, nor, it was
intimated, is there any jurisdiction
to decree the sale of land to pay
an administrator's commission, as
the same is not a debt of the intes-
tate ; Hollinan v. Bennett, 44 MiSs.
322. So, by Art. 109, p. 452,
of the Code, the Court is directed
to allow an administrator, as com-
pensation for his trouble, either on
partial or final settlement, not less
than one nor more than seven per
cent, on the amount of the estate
administered ; Cherry v. Jarratt,
supra ; Sproti v. Baldwin, 34 Miss.
329 ; Powell v. Burrus, 35 Id. 605.
The allowance of commissions
does not, apparently, depend upon
the degree of care bestowed by
the executor ; Kelly v. Davis, 37
Miss. 76 ; and, within the limits
prescribed by the statute, is matter
of discretion in the Probate Court,
which will not be received on ap-
peal, unless shown to have been
manifestly abused ; Satterihwaite v.
Liltlefield, 13 Sm. & March, 307 ;
Cherry v. Jarratt, supra ; Sprott
Baldwin, 33 Miss. 581 ; Powell v.
Burrus, 55 Id. 605 ; Poach v. Jelks,
40 Id. 757 ; but where the Probate
Court refused to allow any com-
mission whatever to a guardian,
"whose conduct seemed to have
been fair and just," the decree was
reversed and liberal compensation
awarded; Adams y, Westhrook,i\.
Miss. 404. " This allowance, left
discretionary with the Court of
Probates, between the extremes

ROBINSON V. PETT.

£91

indicated, is intended to cover all
compensation. "Within this limit
it may be made to vary according
to circumstances. Out of it, they
must pay their own expenses and
fees of counsel for advice touch-
ing their duty in the conduct and
management of the estate. But if
there should be suits for or against
the estate, -which make it necessary
to employ counsel, those fees must
be paid by the estate. But when
counsel are employed to give ad-
vice as to the correct course of
duty of the executor or adminis-
trator (or are unnecessarily em-
ployed; Growdew. Shackelford, Sb
Miss. 322 ;) the fees must be paid
by him individually out of his own
compensation. If he have not the
requisite knowledge to discharge
the duties of the office he under-
takes, he must pay for its acquisi-
tion himself. His commissions are
intended to cover all the charges
he is authorized to make against
the estate in the course of admin-
istration ;'' Satterwhite v. Little-
field, 13 Smedes & Marsh. 306. In
the latter -case, however, of Shir-
ley V. Shattuck, 6 Cushman, 26, it
seems to have been thought, that
where a trustee was also an attor-
ney, although it was his duty to
protect the interests intrusted to
him, " he was not compelled to go
beyond the usual course required
of any faithful and prudent man,
and bestow his extraordinary
labors, such as were appropriate to
a particular professional class, to
the business committed to him
only as a private individual. . .
. . We think, therefore, that
the sound and just rule is, that al-

though compensation may be
allowed to a trustee who performs
such services for the estate in his
hands, as an attorney or solicitor,
yet that it should never be allowed,
unless it be shown clearly and be-
yond doubt that the legal proceed-
ings were undertaken and con-
ducted in good faith, with an eye
single to the best interests^ of the
estate, and were necessary to pro-
tect its rights, and such as a dis-
creet and judicious man would
have instituted in a matter of his
own individual interest^ It would,
of course, be a strong justification
of such services, that they were
rendered at the instance of the
cestui que trust."

Commissions are only allowed
to fiduciaries upon the final settle-
ments of their accounts, and hence
upon the death of one of two
joint administrators, his commis-
sions will, upon the settlement of
his accounts by his representative,
be paid to the latter, without any
allowance being, at that time, made
to the surviving administrator
Sproit V. Baldwin, 34 Miss. 329
Effinger v. Richards, 35 Id. 541'
and, it is needless to observe, a
decree for distribution is such final
settlement of the accounts of an
executor as entitles him to receive
his compensation ; Crowder v.
Shackelford; 35 Miss. 322.

A promise to pay a " fair com-
pensation," is, it has been held,
merely a promise to pay what the
court would allow ; Bailiff v.
Davis, 38 Miss. 111.

In LorisiANA, an administrator
is allowed "on the settlement of

592 COMMISSIONS OF TRUSTEES AND EXECUTORS.

bis account, a commission of two
and a half per cent, on the amount
of the inventory of the effects of
succession committed to his charge,
deduction being made for bad
debts, and if there are two admin-
istrators they divide this commis-
sion ;" Civil Code (Fuqiia), Art.
1062, 1181, 1188 ; and the same
compensation is given to executors
"who have had general seisin of
the estate, whether charged to sell
it or not," but " if the executor had
not a general seisin, his commis-
sions shal^ be only on the esti-
mated value of the objects which
he has in his possession and on
sums received by him ;" Id. Art.
1677, 1678 (see Baillio v. Baillio,
5 X. S. 229 ; Prudhomme v.
Vienne, 6 La. 363); and a be-
quest to an executor will be
deemed to be in lieu of commis-
sions, unless a contrary intention
is e?:pressed; Civil Code, Art.
1679.

An executor becomes entitled to
this statutory remuneration upon
receiving possession of the assets,
or being duly qualified to perform
the duties of his office ; Anderson
V. Anderson^lO La. 34; Nicholson
V. Ogden, 6 La. An. 486; and when
once his right to commissions at-
taches it cannot be forfeited for
anything except his own miscon-
duct ; Succession of Lee, 4 La. An.
578 ; Succession of Lile, 24 Id.
490; Hale v. Salter, 25 Id. 321 ;
but the limit prescribed by the
statute cannot be exceeded to com-
pensate for additional services,
whether rendered as counsel or
otherwise ; Young v. Ghaney, 3
La. 464 ; Baldwin v. Carlton, 15

La. 399 ; New Orleans v. Balti-
more, 15 La. An. 626 ; Succession
of Sprawl, 21 Id. 544; Succession
of Lite, supra.

The inventory must include all
debts, "except those prescribed
against or those due by bankrupts
who have not surrendered scaj
property," and upon due diligence
being shown, commissions will be
granted upon the whole amount of
the inventory, the sums realized,
forming no criterion by which to
estimate the compensation ; /Suc-
cession, of Armas, 2 Rob. 445
Succession of Blakely, 12 Id. 158
Succession of Foulke, 12 La. An
538; Shaffer v. Cross, 13 Id. 110
Succession of Powell, 14 Id. 425.
Hence fall commissions have been
allowed upon uncollected debts ;
Bobouam v. Bobouam, 12 La. 77 ;
upon unsold property and uncixl-
tivatedland;i?o6oMamv.-Bo6oMai7i,
supra ; Succession of G\rod, 4
An. 387 ; upon unconverted real
estate and notes received for
property sold ; Smith v. Cheney,
1 Rob. 98 ; and also to an exe-
cutor for his trouble and responsi-
bility concerning propertj'to which
it was subsequently ascertained
the testator had no title, although
in this case, the statutory rate was
allowed rather as a compensation
than a commission ; Succession of
Girod, 4 An. 387. In cases of
partial administration, however,
commissions are only allowed upon
the actual receipts, and upon sums
definitely ascertained to be uncol-
lectable, but which diligent efforts
have been made to collect ; /Suc-
cession of Milne, 1 Rob. 400 ;
Succession of Day, 3 La. An. 625 ;

ROBINSON V. PETT.

593

S. C, 22 Id. 366 ; Succession of
Oirod, i Id. 38T.

The rules in regard to disburse-
ments are the same as those pre-
A'ailing elsewhere, and hence neces-
sary and reasonable expenses,
including the fees of counsel re-
tained on behalf of the estate, will
be -willingly allowed ; Succession
of Milne, supra ; Mc Williams v.
Mc Williams, 15 La. An. 81 ; Suc-
cession of Fink, 19 Id. 258 ; Suc-
cession of Wedenstandt, Id. 494 ;
Succession of Bay, 22 Id. 366;
and items not objected to in the
court below cannot be disputed
upon appeal ; Succession of
Blakely, 12 Rob. 15T. In the Suc-
cession of Milne, 1 Rob. 400, it
was held that the executors could
not charge the estate for the rent
of an office.

By the statutes in force in Texas,
executors and administrators are
entitled to receive five per cent,
upon cash receipts, and the same
amount upon cash payments, in
the course of their administration.
Also reasonable expenses, on
proof that there was a necessity
therefor, and whenever in the
opinion of the chief justice, the
above commission is inadequate,
or if extraordinary services were
required to be rendered, a reasona-
ble compensation may be awarded ;
Paschall's Dig. p. 325, art. 1340 ;
and " if a fiduciary seeks greater
compensation than the above, or
has to incur expenses in managing
the property, he should present
his account therefor, and have the
same allowed by the chief justice
as a liability against the estate ; "
VOL. 11. — 38

Davenport v. Lawrence, 19 Texas,
319.

The statutory commission is only
awarded upon actual receipts and
disbursements ; James v. Corker,
30 Texas, 630 ; Watt v. Downs, 36
Id. 116 ; and will not, of course,
be allowed upon a payment to the
administrator himself; Brown v.
Walker, 38 Id. 109.

What are reasonable expenses
within the statute, is, to some ex-
tent, determined by the amount of
the estate and social position of
the distributees, and there is no
disposition to restrict their pay-
ment ; Trammel v. Fhilleo, 33
Texas, 411 ; Johnson v. Eogan, 37
Id. n ; Porter v. Cole, 11 Id. 157 ;
but a different rule obviously ap-
plies to executors resisting the
payment of palpably just demands ;

Wait V. Downs, 36 Texas, 116 ; S.

C, 33 Id. 421 ; or where the estate
is not interested in the result of
the litigation; Renn v. Samos, 3Y
Id. 241 ; S. G., 33 Id. 760.

In Arkansas, executors and ad-
ministrators receive any sum not
exceeding ten per cent, on a mounts
less than one thousand dollars, five
per cent, on sums between one and
five thousand, and three per cent,
on sums oyer five thousand dol-
lars ; Rev. Stat. Ch. 4, § 106 ; and
an allowance by the Probate Court
of any amount less than the maxi-
mum sum is, in the absence of
fraud, conclusive ; Binggold v.
Stow, 20 Ark. 537.

While the right to commissions
is not forfeited by a mistaken ap-
plication of paj-ments ; Tiner v.
'Christian, 27 Id. 312 ; yet it is

59-i COMMISSIONS OF TRUSTEES AND EXECUTORS.

otherwise in cases ol negligence or
fraud ; Reed v. Ryhurn, 23 Id. 4^ ;
and the compensation provided in
an instrument creating a trust will
not be increased unless the trust
has been faithfully and efficiently
performed, and the provision is
plainly inadequate ; Biscoe v. The
State, 23- Id. 598. Counsel fees
are also allowed to fiduciaries pro-
secuting or defending under order of
court ; Tiller v. Christian, supra.

In Tennessee, the Acts of 1T15,
and I'ISO, allowed an executor to
retain no more than his necessary
charges and disbursements, and
the construction put upon these
statutes is very strict, nothing be-
ing allowed, as against creditors,
for any personal services, " but
only those unavoidable payments
without which the estate could not
be collected and disposed of;"
Stephenson v. Stephenson, 3 Hay
123 ; Bryant v. Puckett, lb. 255 ;
Stephenson v. Yondel, 5 Id. 261 ;
German v. German, 1 Cold. 181.
But the Act of 1838 (1 Thomp. &
Steg. Stat. § 2356), taken in sub-
stance from one passed in 1822,
allows to executors, administrators
and guardians, " a reasonable com-
pensation for their services," which
depends upon their bona fides ;
Coffee V. Ruffin, i Cold. 524;
Germany. German, supra; Ful-
ton V. Davidson, 3 Heisk. 643.

In the very recent ease of Ful-
ton V. Davidson, supra, an execu-
tor was held to be entitled to re-
ceive, in addition to his commis-
sions, a separate compensation for
having acted as counsel for the es-
tate. " Every executor or admin-

istrator," said the court, " has a
right to procure the necessary legal
counsel in administering his trust,
and to pay reasonable compensa-
tion therefor out of the assets of
the estate. If the executor or ad-
ministrator is himself an attorney -
at-law, he may either employ other
counsel, or he may give to the
business his own professional ser-
vices. In the latter case, he is en-
titled to the same compensation
which he would have paid to an-
other attorney in the former case.
There is no incompatibility in the
two offices of executor and solici-
tor. He is entitled to just re-
muneration for the value of his
services in both capacities, to be
ascertained by proof."

In Kentucky, some reluctance
seems to have been felt in depart-
ing from the English rule. " The
doctrine is incontrovertibly set-
tled," it was said in Brechenridge
V. Brooks, 2 A. K. Marshall, 339,
" that where a mortgagee or other
trustee, manages the estate him-
self, there is no allowance to be
made for his trouble." So in
M'Millen v. Scott, 1 Monroe, 151,
it was held that a stipulation by a
trustee for the payment of his ex-
penses (though he would have been
entitled to these without any such
stipulation), excluded any claim
for personal services. With re-
spect to executors, this strictness
was altered by statute (1 More-
head & Brown's Dig. 668), which
gave to them their reasonable
charges and disbursements ex-
pended in the funeral of the de-
ceased, and other their administra-

EOBINSON V. PETT.

595

tion ; and in extraordinary cases,
such recompense for tiieir personal
trouble as the court should tleem
reasonable. The amount of the
allowance rests within the discre-
tion of the court (which, ordina-
rily, will not be interfered with upon
appeal ; Cabell v. Cabell, 1 Met.
335 ; Hutchings v. Hutchings,
MSS. June, 1859, cited 1 Stant.
Rev. Stat. 506, n.), and while the
usual commission is five per cent. ;
Logan v. Troutman, 3 A. K.
Marsh. 67 ; Ramsey v. Ramsey, 4
Mon. 152 ; Wood v. Lee, 5 Id. 66 ;
M'Cracken v. M^Cracken, 6 Id.
342; Webb v. Webb, lb. 161; Ca-
bell V. Cabell, supra ; yet in ex-
ceptional cases, a larger rate has
been allowed ; Woodv. Lee, supra ;
Fleming v. Wilson, 6 Bush, 610 ;
and these allowances obviously
take precedence of the claims of
creditors ; Fountleroy v. Leyle, 5
Mon. 267. So, in other cases, " a
gross sum has been allowed with-
out regard to any per centum, and
in others a daily allowance, or
special charge has been passed ;"
Wood V. Lee, supra; but in Bowl-
ing V. Cobb, 6 B. Monroe, 358, a
' charge of seven per cent, upon
receipts, and the same upon pay-
ments, was said to be excessive
and unusual. A liberal spirit
seems to be shown towards the al-
lowances of expenses, svich as hire
of slaves ; F loyd Y.Floyd, lid. 'i'i^;
counsel fees, &c. ; Bowling v. Cobb ;
Fleming v. Wilson, supra ; Woody.
Goff, 7 Bush, 65 ; but an executor
cannot charge commissions upon
a debt paid to himself; Franklin
Academy v. Hall, 16 B. Mon. 472.
These doctrines, however, were

not extended to trustees until a
later period, the English rule
being approved in Jennings v.
Davis, 5 Dana, 134 ; Hite v. Llite,
1 B. Mon. 179; and Miles v.
Bacon, 4 J. J. Marsh. 463 ; though
it was admitted that there were
exceptions in modern adjudica-
tions. But in Phillips v. Bustard,
1 B. Monroe, 350, the rule was
said to be extensively qualified if
not entirely exploded by the local
law and usage of that state, where
tutors, curators, executors, and
administrators were all entitled to
reasonable compensation, and
there was no reason for applying
so harsh and unreasonable a rule
to the solitary class of cases de-
nominated express technical trusts ;
and in Lane v. Coleman, 8 B.
Monroe, 571, a party acting as
agent, under an instrument which
directed him to pay from the pro-
ceeds of certain law suits, all costs
and expenses, including attorney's
fees, and which was held to be in
effect a deed of trust, was declared
to be entitled to a " reasonable
compensation for his services."
So, in Bank of the United States
Y. Hirst, 4 B. Monroe, 439, the
reservation in an assignment made
to three trustees, of one per cent,
commission on collections and dis-
bursements, not to exceed $2000 to
each of them in any one year, was
held not to be so extravagant as
to indicate a fraudulent motive
in the assignment ; and in Green-
ing V. Fox, 12 B. Monroe, 190, it
was held that trustees under a
deed for the support of the grantor
and his wife, were entitled to five
per cent, commission on the

59G COMMISSIONS OF TRUSTEES AND EXECUTORS.

amounts transferred to them ;
•while in Fleming v. WiUon, 6
Bush, 610, an annual commission
of one and a half per cent, was
given to a trustee who, by judi-
cious management for a period of
seventeen j'ears, had greatly in-
creased the value of the estate.

In Ohio, the act of 1840 (1
Swan. & Critch. 299, § ITO,) pro-
vides that executors and adminis-
trators might be allowed a com-
mission upon the amount of the
personal estate collected and ac-
counted for by them, and of the
proceeds of the real estate sold
under an order of court for the
payment of debts, which should
be in full compensation for all
their ordinary services ; that is to
say, for the first $1000, at the rate
of six per cent. ; for all above that
sum, and not exceeding $5000, at
the rate of four per cent. ; and for
all above $5000, at the rate of two
per cent. ; and that in all cases
such further allowances should be
made as the court should consider
just and reasonable for their actual
and necessary expenses, and for
all extraordinary services, not re-
quired by an executor in the com-
mon course of his duty ; with a
proviso that when provision should
be made by will for compensation,
the same should be deemed a full
satisfaction for his services, in
lieu of his commissions, or his
share thereof,- unless he should, in
writing, renounce all claims to
such compensation. In Andrews
V. Andrews, 1 Ohio St. 151, the Su-
preme Court held, upon the au-
thority of the Pennsylvania cases

cited supra, p. 553, that an execu-
tor was not bound to maintain the
will of his testator, but should
properly throw the expense of the
same upon the legatees or devi-
sees ; and in Gilbert v. Sutliff, 3
Id. 149, it seems to have been
thought that a trustee was not
" entitled to compensation in the
absence of an agreement to pay ;
he may claim for expenses, but he
must render his account, and, if
not admitted, must clearly estab-
lish it ; if he mal-administer and
refuse to account, both compensa-
tion and expenses may be refused."
In Williams v. Williams, 8 Ohio
St. 300, where a testator devised
lands subject to the payment of
legacies which though directed to
be void by the executors, were dis-
charged by the devisees, it was
held that the executors were not
entitled to commissions upon such
legacies.

In Indiana the compensation
rests within the discretion of the
court, no fixed rate being estab-
lished ; Bay v. Doughty, 4 Black.
115 ; 2 Rev. Stat. (G. & H.) 526 ;
but a provision made bj' the will,
is, unless renounced, conclusive:
2 Rev. Stat. 527.

The revised statutes of Illinois
provide that " executors and ad-
ministrators shall be allowed as a
compensation for their trouble, a
sum not exceeding six per cent,
on the whole amount of personal
estate, and not exceeding three
per ceiit. on the money arising
from the sales or letting of land,
with such additional allowances

ROBINSON V. PETT.

597

for costs and charges in collecting
and defending the claims of the
estate, and disposing of the same,
as shall be reasonable ; " Rev. Stat.
1874, p. 127, §132, and by the
laws of 1861, p. 177, §1, "Guar-
dians upon settlement shall be al-
lowed such fees and compensation
for their services as shall seem rea-
sonable to the Court," but com-
missions will not be given to fidu-
ciaries who employ the funds of
the estate for their individual
benefit ; Bond v. Lockwood, 33
111. 224 ; and increased compensa-
tion will not be awarded to an ad-
ministrator acting as counsel for
the estate ; Willard v. Bassett, 27
Id. 38.

With regard to trustees, in Con-
stant V. Matteson, 22 111. 547, the
Court, while recognizing the right
to repayment of necessary expen-
ditures, said " As a general rule,
a trustee is not entitled to compen-
sation either for his labor or time
bestowed in the care of the trust,
unless it is by stipulation or agree-
ment," and, at all events, such
claim cannot, for the first time, be
asserted upon appeal ; Hurd v.
Goodrich, 59 111. 458.

In Missouri, executors and ad-
ministrators were formerly allowed
a commission not exceeding six
percent.; Shong v. Wilkinson, 14
Mo. 116 ; but they now receive, in
all settlements, in addition to
proper disbursements, and charges
for legal advice, '' as full compen-
sation for their services and trouble,
a commission of five per cent, on
personal estate and money arising
from the sale of real estate" (1

Wagner's Stat, 1872, p. 108, § 9) ;
but the compensation is sometimes
awarded in a gross sum ; Fisher v.
Smart, 7 Missouri, 581 ; and there
is a provision relative to guardians,
similar to that in force in Illinois
(Id. 682 and 851).

In lovFA, executors are allowed
upon personalty distributed, and
real estate sold for payment of
debts, for the first one thousand
dollars at therate of five per cent.,
between one and five thousand, at
the rate of two and a half per cent.,
and over five thousand, at the rate
of one per cent., with additional
allowances for expenses and extra-
ordinary services ; Rev. Stat.
(1860), p. 417, §§ 2454, 2455; and
although these amounts are de-
clared to be " as full compensation
for all ordinary services," yet
when more than the statutory
commissions have been allowed, it
will, upon appeal, be presumed to
have been given for extraordinary
services ; Patterson v. Bell, 25
Iowa, 149. The compensation of
guardians (Rev. Stat. 1860, p. 434,
§ 2567), and foreign executors or
administrators (Laws of 1866, p.
150), rests within the discretion of
the Court, and while either a per
centage or gross sum may be
awarded, yet it is forfeited by neg-
ligence ; Foteaux v. Lepage, 6
Iowa, 135.

In Wisconsin and Nebraska,
executors and administrators re-
ceive their expenses and costs right-
fully incurred (2 Taylor's Stat.
[1872] p. 1534, § 66) and for their
services such fees as the law allows,

598 COMMISSIONS OF TRUSTEES AND EXECUTORS.

[being one dollar for every day
employed in the execution of the
trust, 2 Taj'lor's Stat. p. 1523,
§24; Cameron v. Cameron, 15
Wise. 1], provided that when the
decedent shall, by his will, provide
a compensation, such provision
unless renounced is exclusive. But
when no compensation is provided
by the will, or, if provided, is re-
nounced, commissions are allowed
upon the personalty, and real es-
tate sold for the payment of debts,
at the rate of five per cent, on the
first five thousand dollars, two and
a half per cent, on amounts between
one and five thousand, and one per
cent, on sums above the latter
amount, with provision for addi-
tional remuneration for extraordi-
nary services ; 2 Taylor's Stat. p.
1240, §§ 10, 11 ; Neb. Stat. p. 331,
§ 283. The compensation of guar-
dians is confided to the courts ;
lb. p. 1285, § 41.

An administrator acting in good
faith is not personally liable for
costs in an action brought by him
for a conversion of the estate ;
whether such conversion occurred
before or after the death of the in-
testate ; Knox v. Begdon, 15 Wise.
415; aliter, if the action is eon-
ducted for the individual benefit of
the fiduciary ; Cameron v. Came-
ron, 15 Wise. 1. Payment of
claims may also be made prior to
an order of court, subject to the
risk of their being subsequently
•disallowed ; King v. Whiton, 25
Wise. 689 ; and in the latter case
it was also held that an expressed
intention to waive the right to com-
missions will not, of itself, be suffi-
cient to deprive an executor thereof.

In California, " When no com-
pensation shall have been provided
by the will, or the executor or ad-
ministrator shall renounce aU claim
thereto, he shall be allowed com-
missions upon the amount of the
whole estate accounted for by him,
as follows : " For the first one
thousand dollars, at the rate of
seven per cent, for all above that
sum and not exceeding ten thou-
sand dollars, at the rate of five per
cent, and for all above that amount
at the rate of four per cent.," with
additional allowance for extraor-
dinary services; '-provided that
the total amount of such allowan-
ces shall not exceed the commis-
sions allowed by this statute ;''
Wood's Digest, p. 413, Art. 232T,
§221.

Commissions are not allowed on
the whole amount of the inventory,
but onl}' upon such portions
thereof as are reduced to posses-
sion and accounted for ; Isaac's
Estate, 30 Cal. 105; Simmon's Es-
tate, 43 Id. 543 ; but an adminis-
trator who received certain secu-
rities which were subsequently
decreed to belong to others, and
changed the form of their invest-
ment with the consent of the par-
ties entitled thereto, was held to
be entitled to commissions thereon ;
Wells, Fargo & Co. v.'Bobinson, 13
Cal. 135. The statutoiy allow-
ance is only made upon final ac-
counting ; Ord V. Little, 3 Cal.
289 ; Miner's Estate, 46 Id. 5t2 ;
and hence where the fiduciary re-
signs or is removed, his remunera-
tion is disci-etionary ; Ord v. Little,
supra.

The rule with respect to joint

ROBIKSON V- PETT.

599

executors was thus stated in Hope
V. Jones, 24 Cal. 92. " The part-
nership relation does not exist be-
tween co-executors and they have
no joint interest in the commis-
sions allowed by law for their ser-
vices in administering upon the
estate. They are not each entitled
to an equal share merely upon the
naked ground of their relation to
each other. The share to which
they are respectively entitled is to
be determined on entirely different
considerations. In otlier words
their respective portions are not
ascertained by anj' established
rule of law, but upon the princi-
ples of equity. The ratio of com-
pensation and of service must be
the same or as nearly so as the cir-
cumstances of the case will per-
mit. Each is chargeable with the
full amount of tl\e assets which
may come into his hands and is
entitled to be credited with all dis-
bursements legally made on behalf
of the estate. Each may keep a
separate account and present the
same for final settlement. Tliey
are onl}' entitled to share and
share alike where their liabilities
and services have been equal.
One who takes no care or charge
upon liimself touching the estate
or any part thereof, collects no
debts, makes no disbursements,
and thus renders no service what-
ever, is not entitled to any share
in the commissions."

The decision of the probate
court in questions concerning the
expenses of administration is,
owing to its exclusive jurisdiction
over the settlement of decedent's
estates, generally regarded as con-

clusive, although in clear cases of
abuse of discretion the appellate
court will interfere; Hope Y.Jones,
24 Cal. 93 ; Gurnee v. Maloney,
38 Id. 85; Gasq's Estate, 42 Id.
289 ; Mullen's Estate, 47 Id. 452 ;
and a personal liability will not be
imposed upon fiduciaries for ex-
penses incurred for the apparent
benefit of the estate, whether the
means adopted were or were not
the most advantageous for the •
trust ; Abila v. Burnett, 33 Cal.
658 ; Simmon's Estate, 43 Id. 543 ;
Miner's Estate, 46 Id. 510 ; Mul-
lin's Estate, supra; but an execu-
tor is individually liable for fees
paid to counsel for procuring let-
ters testamentary ; Simmon's Es-
tate, supra ; or for involving the
estate in needless litigation ; Hicox
V. Graham, 6 Cal. 168 ; or for
costs incurred in attempting to re-
cover an unauthorized investment ;
Holbert's Estate, 48 Cal. 621.

Although it will have been seen
that, in a few States, the principle
of compensating those acting in a
fiduciary capacity, does not, as
yet, seem to have been applied
further than in the case of execu-
tors and administrators, yet it will
sufficiently appear from observing
its rapid extension, that as to the
principle itself, there will soon be
little difference of determination ;
and some of the rules which ap-
pear to be of general application,
in the absence of statutory pro.-
visions to a contrary effect, are
that compensation is awarded by
means of commissions, rather than
in a gross sum or per diem allow-
ance— that one who assumes a

600

SPECIFIC LEGACIES. — ADEMPTION.

trust with the understanding, ex-
press or implied, that its duties
are to be performed without com-
pensation, shall not afterwards be
allowed to claim it — that, in the
absence of insolvency or undue in-
fluence, the compensation provided
in the instrument creating the
trtist will prevail — that compensa-
tion is to be given for labor and
risk actually incurred, and, there-
fore, not to be claimed on assum-
ing the trust — that double compen-
sation is not usually given when
the fiduciary occupies a double
position with regard to the same
subject-matter — that the compen-
sation is not to be increased in

proportion to the number of trus-
tees— that in cases where the fidu-
ciary lias been wanting in that
probity and care which equity
demands, it will be withheld alto-
gether— and, consequently, that
although the cost of professional
services, will, in general, be readily
allowed when the protection of the
fiduciary is also the protection of
those beneficially interested, yet it
will not be sanctioned where the
former avails himself of such ser-
vices in a defence against the
rights of the latter, or where the
litigation was either plainly un-
necessary, or conducted in bad
faith.

[*267] «ASI-IBURIirER v. MACGUIRE.

1784. JULY 18, 1786.

EEPOETED 2 BEO. C. C 108.

Specific Legacy — Ademption.] — Legacy of interest and principal
of a bond is sp>'cific, and is partially adeemed by the testator having
received part of the debt by dividends declared after the bankruptcy
of the debtor. " Legacy of my 1000^. East India Stock" is specific,
and is adeemed in toto hy the testator's selling the stock.

William Macguire, by his will, dated the 27th September,
1778, bequeathed (inter alia) as followrs ; — " Item, I bequeath to
my sister Jane Ashburner, the interest arisinsr from her hvsband
Willi'im Ashhurnfr's bond to me for principal, 3500?. sterling during
her life, independent of her present or any future husband,
amounting to 176?. sterling per annum. Item,, I bequeath the
principal of the said bond, on the decease of my said sister Jane Ash-
burner, to, her four daughters, Elizabeth, Anne, Sarah, and Sophia,
to be equally divided among them or the survivors of them. Item,
I bequeath to Mr. William Beawes, now at school with the Rev.
Mr. Everett, at Felstead, in Essex, my capital stock of 1000?. in the
India Company^s Stock, with the dividend thereon arising, which
dividend is to pay for his education and maintenance till he is
qualified for holy orders, and then the capital to be laid out in
the purchase of a Rving for him in the church. This stock is to
be continued or disposed of, at the discretion of my executors."

ASHBURNBR V. MACGUIRE. 601

William Ashburner, the debtor, became a bankrupt in Febru-
ary, 1780. In March the testator proved this debt *under r*ofiQi
the commission, and, 16th May, 1781, received a dividend ^ J
thereon of 4s. Sd. in the pound.

The testator died 12th July, 1781. Since his death another
dividend of 2s. 9rf. has been made to the bankrupt's creditors.

The testator at the time of making his will, was possessed of
lOOOL East India Stock, and no .more, but sold out the whole of
it before his death. Beawes, the legatee of this stock, was a
natural child of the testator.

The bill was brought by Mrs. Ashburner, her four daughters,
and Beawes, to have the whole sum of 3500 Z. secured for Mrs.
Ashburner and her daughters, and to have such part of it as is
due out of the estate of Ashburner the bankrupt paid by his
assignee, and the residue paid by the personal estate of the testa-
tor out of his general effects ; and that the personal representative
of the testator might also purchase with the testator's personal
estate lOOOZ. East India Stock, and transfer the same for the use
of the plaintiff Beawes, as directed by the will. The defendants,
the administratrix and residuary legatees, insisted that the plain-
tiffs, the Ashburners, were entitled only to what remained due
to the testator at the time of his death out of the estate of the
bankrupt ; and that the legacy of East India Stock to Beawes
was adeemed by the testator's disposing of it in his lifetime.

The cause was heard before the Lord Chancellor in 1784, and
on the Ibth of July, 1786, he gave j udgment.

Lord Chancj!Llor Thurlow, after stating the case, said — The
claim of Mrs. Ashburner and her daughters depended on two
questions :

First, whether the bond was given as a specific legacy ; which
depends on this, whether the manner in which the sum is men-
tioned, turns it to a pecuniary legacy, or, as the civilians call it,
a demonstrative legacy, that is, a legacy in its nature a general
legacy, but where a particular fund is pointed out to satisfy it ;
or whether it be what they call a legatum nominis, or legatum
debiti.

*The second question is, whether the legacy, supposing r*oflQ"i
it to be specific, is adeemed, so far as the testator has re- '- ^
ceived dividends in respect of the debt, or, as the bankrupt's
estate may be insufficient to pay the residue.

I will take the second point first ; for this is clearly a specific
legacy, according to all the definitions. Wherever a debt, or a
part of a debt, is the subject bequeathed, it is a legatum nominis,
or legatum debiti. I shall not stand long upon that point.

With respect to the second point, as to the ademption, one
maxim has gained so much ground as to have been a governing
rule, and has been recognized by Lord Talbot and Lord Hard-
wicke. It is, that where a debt is bequeathed, and is afterwards
extinguished by the act or concurrence of the testator, as by de-
mand or suit, the legacy is adeemed, but if paid in without suit

602 SPECIFIC LEGACIES. — ADEMPTION.

or demand, there is no intention to adeem ; and there are innu-
merable authorities that a legacy of a debt is not adeemed by a
voluntary payment. Lord Camden, in the Attorney-Geveral v.
Parking expressly exploded this distinction ; so did Lord Maccles-
field.^ I am inclined to adopt their opinions, because I can find
no ground for the distinction but a passage in Swinb. sect. 20, p.
7, (p. 548, 6th edit.). But I doubt if the authors cited by him
support him. Godolphin (Orphan's Leg., 4th edit. 434), re-
ferring to the same books, states the rule differently ; and so have
other writers.

By the civil law, it was competent for a man, after he had
changed the subject-matter of a specific legacy, to declare, by his
conduct, that such a change was no ademption. The case put is
of a gold chain, which the testator, after having bequeathed it by
his will, converts into a cup ; the legacy is not adeemed, because
the cup might be restored to its former shape.

This has not been adopted by our law. There is no ground to
say, that, after a legacy is extinguished, a man by his conduct,
may revive it. It is contrary to common sense, as appears by
the instance put. The gold chain may have been given as a
r*9701 ■^^S^'^y' because it had been *long in the testator's family.
'- -' If it be afterwards converted into a gold cup, the reason
for giving it ceased.

There is an exception, or limitation to this rule, where the
testator alters the form, so as to alter the specifications of the
subject ; as by making wool into cloth, or a piece of cloth into a
garment ; there the legacy is adeemed, because the subject-
matter cannot be restored 'to its former state.

This distinction is intelligible, in an action where the thing
sued for cannot be recovered in specie ; but it is not intelligible,,
when applied to a legacy ; and, what is more material never was
adopted by our law.

As to legacies of debts, according to the civil law, where the
testator had sued for, but had not recovered, or had got judg-
ment, but not execution, or had actually recovered the debt, but
had set the money apart for the legatee, or, by words, declared
he did not intend to revoke the legacy ; in none of these cases was
the legacy adeemed. But there is no authority in the civil law
for the distinction between a debt being paid without demand,
and in consequence of a demand.

Besides, although it can be ascertained where a suit was com-
menced for a debt, it may be extremly diflicult to ascertain
whether any demand has been made ; if the testator receive pay-
ment of the debt, the legacy is gone, unless it appear from the
manner of his disposing of the money afterwards, that he means
to preserve it for the legatee. Lord Camden, in the Attorney-
General v. Farkin, held there was no distinction between volun-
tary payment, aud payment on a demand, and that in both cases,

1 Amb. 566. 2 Lord Thomond v. Earl of Suffolk, 1 P. Wms. 461.

ASHBURNER V. MACGUIRE. 603

the legacy was extinguisbed ; he added, that where the sum is
specified in the bequest, it is a general legacj^, as I shall mention
on the other point. But the distinction between, I bequeath' t^e
5001. due on a bond from A. B., and I bequeath fhe bond from A. B.
is very slender ; and so admitted to be by his Lordship.

In the civil law there is a distinction taken between a demon-
strative legacy, where the testator gives a general legacy, but
points out the fund to satisfy it, and a taxative legacy, where he
bequeaths a particular thing.

*0n the first point, I am clear this is a specific legacy. r*.:)7i"|
If the fortune of the testator had failed, so as not to satisfy L -^ -•
all the pecuniary legacies, and the question had been, whether
this legacy should have been contributive to the pecuniary lega-
cies, I believe no man in the profession would have doubted.

When the testator made his will, b%00l. was due to him from
"William Ashburner, by bond ; he meant to relinquish that bond
for the benefit of the family ; not by way of release to the hus-
band, but by way of settlement ; and that this debt, whether it
turned out well or ill, should go to the family ; the interest to his
sister for her life, the principal among her daughters. In this
case, the bequest must be considered as specific, although the sura
be mentioned; for I cannot agree to Lord Camden's distinction.

As to the legacy of East India Stock to the plaintiff Beawes,
there is no case to countenance his claim. The testator says, " I
give my capital stock to." &c. ; the pronoun my has been relied
on, in many cases, in deciding the legacy to be specific.

The testator, after making his will, sold his stock, which made'
it as if it had never existed ; the legacy is adeemed according to all
the cases.

In questions upon legacies of debts, the cases have crept beyond
the original principle, which was the distinction between demon-
strative and taxative legacies, and recourse has been had to the
animus adimendi, which has nothing in common with the other
principle.

In Pettiward v. Pettiward, Rep. t. Finch, 152, the Court was of
opinion, from all the circumstances, that the testator intended to
give a legacy of 200UZ., although the debts pointed out for the
payment of it amounted only to 1700Z. ; and, therefore, decreed
the deficiency to be made good out of the general assets. In
Pawlet's case, Raym. 335, the legacy was held to be a pure legacy,
or a legacy in numeratis, and not legatum nominis ; and although
the debt was paid to the testator, the legacy was decreed. In
Lord Castleton v. Lord Fanshaw, 1 Eq. Ca. Abr. 298, *a r*.7r72-]
legacy of a debt was held to be specific, although the sum L - J
was named.

In Orme v. Smith, 1 Eq. Ca. Abr. 302 ; Gilb. Rep. 82 ; and 1

' This distinction is recognised by Lord Hardwicke in Ellis v. Walker, Amb.
310, and by Lord Camden in Attorney-General v. Parkin, Id. 506, but is now
overthrown.

604 SPECIFIC LEGACIES. — ADEMPTION.

Vern. fi81, the payment was voluntary; and, from thence was
inferred an argument, that there was no animus adimendi.'

In Lord thomond v. Earl of Suffolk, 1 P. Wms. 461, Lord
Macclesfield disapproved of the distinction between a debt re-
covered by suit, or paid in voluntarily. A definition of a specific
lea;acy is given by Lord Maccle8fi.eld, in Hinton v. Pinke, 1 P.
Wnis. 539, and the advantages and disadvantages, as between a
specific and pecuniary legacy, are mentioned ; and, among other
instances, that the legatee of a debt, which is lost by the insol-
vency of the debtor, shall have no contribution from the other
legatees. In Crockat v. Grockat, 2 P. Wms. 164, this testator be-
queathed the sum of 550^.. which was then in Mr. Ellis's hands ;
the testator, before making his will, had placed the sum in the
hands of Mr. Ellis, and had got his note for it. He had also, be-
fore making his will, drawn several bills on Ellis, v/hich had
reduced the sum to 430Z. It was held, by the Master of the Rolls,
that, as the drafts were all made before the will, and as the note
for the full sum was still standing out, the testator should be con-
sidered as renouncing the payments, and that he meant to give
the whole 550^. as a legacy.

I take it to be clear, if a testator gives a cup, which is in pawn,
it is a full gift, and the executor must redeem.

In Ford v. Fleming, 2 P. Wms. 469, 1 Eq. Ca. Abr. 302, Lord
King held, that calling in the debt was no ademption, supposing
himself bound by the passage in Swinburne, and Pawlet's case?
How he could be bound by those cases I cannot conceive. This
case' at the Soils, cited 1 Atk. 508, is nonsense, and has often
been denied. The question upon the legacy of the stock has been
determined uniformly: Ashton v. Ashton, Ca. t. Talb. 152, and 3

r*2731 ^- ^™^- ^^^' ^'^'■^"'^5'^ '^- Partridge, *Ca. t. Talb. 226,
^ -' Purse Snaplin, 1 Atk. 414, does not tell at all to the pur-
pose. Avelyn v. Ward, 1 Ves. 420, is contrary to many cases
determined before, and to one by Lord Hardwicke himself, viz ,
Purse V. Snaplin.*

Lord Camden, in the Attorney -General v. Parkin,^ decided one
point, and left the other open. Parkin, in his will, recites that

he had certain mortgages, to the amount of £ , and bonds to

the amount of £ . He gives all these, by such enumeration,

to Pembroke College, Cambridge. To his sisters, who were next
of kin, he gave annuities, and declared they should have nothing
more under his will. Several sums were afterwards called in, or
paid before the testator's death. Lord Camden determined, that
the sisters were not disappointed by the declaration, that they
should have nothing but the annuities ; he held the legacy to the

1 See as to the intention of the testator, Domat. torn. 3, p. 186. Vide Cole-
man V. Coleman, 3 Ves. jun. 640.

2 Raym. 335.

' Phillips V. Gary ; and see Heath v. Perry, 3 Atk. 103.
■• 8. 0. nom. Pierce v. Snaveling, 1 Ves. 435.
6 Amb. 566.

ASHBTJRNER V- MACGUIRE. , 605

College was not adeemed as to the sums paid in, upon the ground
that the sum was named, which he at the same time admitted to be
slight. The testator certainly meant to give everything to the
College, except the annuities ; but the bequest is in the strictest
form of a specific legacy.

In' Cartwright v. (Jartwright, 18th July, 1775, before Lord
Bathurst, the bequest was " I give 1400?. for which I have sold my
estate this day" &c. The testator afterwards received the whole
money, paid it to his banker, and drew out of his hands llOOZ. of
that money. Lord Bathurst held this to be a legacy of quantity,
and that the receiving was no ademption, on the authority of the
Attorney- General v. Parkin ; but it is questionable whether that
case supports that determination.

In the case before me, the testator plainly intended that his
sister, Sarah Ashburner, and her children, should have the debt,
owing to him by her husband, secured as a provision for them.

My decree will be, that the bond be delivered up to the wife
and children, that they may receive the dividend not received by
the testator, and whatsoever may hereafter *be payable r*274i
out of the bankrupt's estate in respect of that date. '- ^

The legacy to Beawes is gone, and the bill must be wholly dis-
missed as to that claim.

The case of Ashburner v. Macguire, determined by Lord Tliurlow,
after great consideration — for, according to Lord Alvanley (see 4 Ves.
566), he took two years- before he gave judgment — is usually referred
to as an authority wherever the question arises, whether a legacy is
general or specific, and if specific, what amounts to an ademption of it.
See Stanley v. Potter, 2 Cox, 182 ; Chaivorth v. Beech, i Ves. 565,
566 ; Innes v. Johnson, 4 Ves. 574.

Legacies are usually said to be of two difl'erent kinds, general or
specific ; a third, however, may be added, in some degree partaking of
the properties of the two former, — a demonstrative legacy.

A legacy is general where it does not amount to a bequest of any
particular thing or money, distinguished from all others of the same
kind. Thus, if a testator gives A. a diamond ring, or a horse, or lOOOL
stock, or lOOOZ., not referring to any particular diamond ring, horse,
stock, or money, as distinguished from others, these legacies will be
general.

It may be here mentioned that general pecuniary legacies are bequests
of personal property " described in a general manner " within the mean-
ing of the 21th section of the Wills Act (1 Vict. c. 26), where no par-
ticular fund is indicated for payment, and they will therefore be paya-
ble out of personal estate, which the testator has power to appoint in

' Stated in the Appendix to Mr. Wooddesou's 3d vol. of Views of the Laws
of England.

606 SPECIFIC LEGACIES. — ADEMPTION.

any manner he may think proper, where there are no assets of which
the testator was possessed as his own personal estate, sufficient to pay
the legacies : Hawthorn v. Sheddon, 3 Sm. & G. 293 ; and see S-pooner'n
Trust, 2 Sim. N. S. 129 ; Wilday v. Barnett, 6 L. R. Eq. 193 ; In re
Wilkinson, 4 L. R. Ch. App. 587.

A legacy is specific, legatum nominis vel debiti, when it is a bequest
of a particular thing, or sum of money, or debt, as distingushed from
all others of the same kind. Thus, if a testator gives B. "my diamond
ring," "my black horse," "my lOOOZ. stock," or " lOOOZ. contained in a
particular bag," "or owing to me by C," in these and like instances
the legacies are speciQc.

A legacy is demonstrative, when, as Lord Thurlow observes in the
principal case, " it is in its nature a general legacy, but there is a par-
ticular fund pointed out to ^satisfy it." Thus, if a testator be-
[*215] q^gJ^^l-lg looOZ. out of his Reduced Bank Three per Cents., the
legacy will not be specific, but demonstrative. That this species of
legacy was recognised by the civil law, is clear. " Si testator scrip-
serit, aureos quadringentos Pamphilae dari volo, ita ut infra scriptum
est, ab Julio autore aureos tot, et in castris quos habeo tot, et in
numerato quos habes tot, et post multos demum annos decesserit cum
jam omnes summse in alios usus translatse essent, responsum fuit, Pam-
philee quadringenta deberi ; quia vero similius est patremfamilias de-
monstrare potius hteredibus voluisse, unde aureos quadringentos sine
ineommodo rei familiaris contrahere possent, quam conditionem fidei-
commisso injtcisse, quod ab initio pure datum esset." — Yoet ad Pand.
35, tit. 1, sect. 5.

Though often a matter of much difficulty, it is of much importance
accurately to distinguish these legacies one from the other, because, as
will be hereafter more fully sliown, a specific legacy will not, ujpon a
deficiency of general assets to pay debts, be obliged to abate, until
after the general legacies have been exhausted ; but, at the same time,
a specific legatee is liable to this disadvantage, that if the thing speci-
fically given be adeemed by the testator either aliening or changing it
into a different species of property, he will not be entitled to claim
anything by way of compensation out of the general personal estate.
But with regard to a demonstrative legacy, it is so far of the nature of
a specific legacy, that it will not abate with the general legacies until
after the fund out of which it is payable is exhausted, and so far of the
nature of a general legacy, that it will not be liable to ademption by
the alienation or non-existence of the property pointed out as the pri-
mary means of paying it. See Mullins v. Smith, 1 Drew. & Sm. 210 ;
Vickers v. Found, 6 Ho. Lo. Ca. 885 ; Disney v. Crosse, 2 L. R. Eq.
593 ; Hodges v. Grajit, 4 L. R.' Eq. 140.

Before, however, entered upon these topics, it may be more useful to
examine some of the cases in which the distinguishing marks of these

ASH&nRNER V. MACGUIRE. 607

different kinds of legacies have been discussed, bearing in mind, that,
because of the consequences, ihe Court is inclined not to construe a
legacy as specific, unless clearly so intended : Kirhy v. Potter, 4 Yes.
'752 ; Innes v. Johnson, 4 Yes. 568 ; Webster v. Hale, 8 Ves. 413 ; Die-
kin V. Edwards, 4 Hare, 2Y6; Ellis v. Walker, Amb. 310; Sayer v.
Sayer, 1 Hare, 382 ; Williams v. Hughes, 24 Beav. 414, 4T8.

Legacies of money.] — A bequest of a sum of money in such a bag
(Lawson v. Stitch, 1 Atk. 508), or in the hands of a ctrtain person
{*Hinton v. Pinke, 1 P. Wms. 540 ; Crockat v. Crockat, 2 P.
Wms. 164; Pulsford v. Hunter, 3 Pro. C. C. 416), or even of C*^'^^]
" all my monies " {Manning v. Purcell, 2 Sm. & G. 284; 1 De G. Mac.
& G. 55 ; Lamer y., Lamer, 26 L. J. N. S. (Ch.) 668), is specific. So
■where one partner bequeathed to the other 2000Z., which appeared to be
due to him on the last settlement, upon certain trusts, if he did not
draw it out of the trade before he died. Lord Hardwicke held that it
was a specific legacy: Ellis v. Walker, Amb. 310. But a bequest of
money for a ring (Apreece v. Apreece, 1 V. & B. 364), or to purchase
government securities (Lawson v. Stitch, 1 Atk. 50Y ; Gibbons v. Hills,
1 Dick. 324 ; Edwards v. Hall, 11 Hare, 23), or lands {Hintoii v. Pinke,
1 P. Wms. 539), or of an annuity to be purchased out of or charged on
the personal estate {Alton v. Medlicott, cited 2 Ves. 41'7 ; S. C, 3 Atk.
694; Hume v. Edwards, 3 Atk. 693; Creed v. Greed, 11 C. & F. 508),
or of so much money "to be paid In cash" {Richards v. Richards, 9^
Price, 226), is a general legacy. So, " in Kirkpatrick v. Eirkpairick,
before Lord Kenyon when Master of the Rolls, legacies were given to
persons in India, and legacies to i^ersons in England, to be respectively
out of the effects in the respective countries, that was held to be only a
direction as to the payment, not to make them specific," cited in Roberts
v. Pocock, 4 Ves. 158. So, a gift of a legacy, with a direction that it
shall be paid as soon as the testator's property in India shall be real-
ised in England, will not make it specific, nor would it fail although
tlie assets had been remitted to England in the lifetime of the testator :
Sadler v. Turner, 8 Ves. 617, 624; and see Raymond v. Brodbelt, 5
Ves. 199.

Legacies of debts.] — A debt may be specifically bequeathed, either
by a gift of the security, as "my East India bonds" {Sleech v. Tho-
rington, 2 Ves. 562, 563) ; " my note of 500Z." {Drinkwater v. Fal-
coner, 2 Ves. 623) ; " my navy bills " {Pitt v. Gamelford, 3 Bro. C. C.
160) ; or by a gift of the sum owing upon the security, as a bequest of
" the money due on an interest note given by A." {Fryer v. Morris, 9
Ves. 360) ; or " due on A.'s bond " {Davies v. Morgan, 1 Beav. 405) ;
" the money now owing to me from A." {Ellis v. Walker, Ambl. 309) ;
" or the interest of lOOOL, secured on mortgage of an estate belonging
to A." {Gardner v. Hatton, 6 Sim. 93.)

A bequest of a debt is equally specific, where it is made to several

608 SPECIFIC LEGACIES. — ADEMPTION.

persons in certain shares and proportions, nor is it the less specific in
consequence of a life interest being given in it. Thus, in the principal
case, where the testator bequeathed to his sister *" the interest
L J arising from her husband's bond, due to me, for principal 3500/.
sterling," for life, for her separate use, amounting to 175L sterling per
annum, and on the decease of his sister, the principal of the said bond
to her four daughters, to be equally divided among them. Lord Thur-
low held, that the bond was specifically given ; and this decision has
been approved of and followed in Ghaworlh v. Beech, 4 Ves. 555 ; Innes
V. Johnson, 4 Ves. 568 ; Staniey v. Potter, 2 Cox, 180 ; sed vide Cole-
man V. Coleman, 2 Ves. jun. 639; Du7ioan y. Duncan, '2^1 Beav. 386.
So a gift of a part or residue of a debt is specific (Ford v. Fleming, I
Eq. C. Ab. 302, pi. 3 ; 2 P. Wms. 469 ; Nelson v. Carter, 5 Sim. 530 ;
and see Basan v. Brandon, 8 Sim. 171).

If a testator gives a sum out of a debt to one person and the residue
to another, the legacies are specific, but if he says " I give a legacy of
a particular sum to A. and desire it to be paid out of a debt due to me,"
the legacy is demonstrative, as the testator merely points to a fund out
of which it is to be paid ; Duncan v. Duncan, 2Y Beav. 390, and see
Campbell v. Graham, 1 Russ. & Mj'. 453.

Legacies of stock, government securities, &c.] — Stock, or government
securities, may be specifically bequeathed where the specific thing or
corpus is, as in the principle case, described as " my " stock {Barton v.
Cooke, 5 Ves. 461 ; Choat v. Yeats, 1 J. & W. 102 ; Norris v. Earri-
son,2 Madd.219, 280). So,alegacy " of my stock," or " in my stock," or
" part of my stock," is a specific gift of an aliquot part of stock : Kirhy v.
Potter, 4 Ves. 750, per Lord Alvanley ; and see Mullins v. Smith, 1 Drew.
& Sm. 210 ; Oliver v. Oliver, 11 L. R. Eq. 506. So, abequest of" all the
stock which 1 have in the Three per Cents., being, or about 5000Z., " is
specific ; Humphreys v. Humphreys, 2 Cox, 184 ; Cochran v. Cochran,
14 Sim. 343 ; Gordon\.Duff, 28 Beav. 519 ; and abequest " of the inter- ,
est of the whole of my property in the public funds," was held a speci-
fic legacy of TOOL Three per Cent. Reduced Annuities, the only prop-
erty in the public funds which the testator had : Hayes v. Hayes, 1
Kee. 97. And see Vincent v. Newcombe, 1 You. 599 ; Eampfr. Jones,
2 Keen, 756 ; Schuttleworth v. Oreaves, 4 My. & Cr. 35.

Previous to the late Wills Act, a bequest of " my stock," " my
shares," or any other similar property, described in those words, was
held to indicate an intention to pass the specific property only which
the testator might have belonging to him of the description in question,
at the time of making his will, such a bequest therefore was specific and
not general.

But now since the Wills Act *has expressly enacted fl Vict.
L '^ ' °-i c. 26, s. 24) (and testators must be taken to know the Wills
Act), that a will shall be construed, with reference to property, to speak

ASHBURNER V. MACGUIRE. 609

and take effect as if it had been executed immediately before the testa-
tor's death, unless a contrary intention appears by the will, it requires
some more specific indication of such " contrary intention " than the
mere circumstance that the testator has described stock by such words
as " my stock," or " my shares," words which although a meaning could
be given to them by reference to what was the state of things at the
date of the will, have also a distinct meaning in reference to the state of
things at the date of the testator's death, and might have been left in
the will for the very purpose of passing property as it existed at the
latter date, and because the testator knew, that, by the operation of the
Wills Act, they would pass that property. Thus, in Goodlad v. Bur-
nett, 1 K. & J. 341, where a testatrix by her will, dated in 1850, made
a bequest as follows : '• I give my New Three and a Quarter per Cent.
Annuities," it was held by Sir W. Page Wood, V. C, that the bequest
comprised all the JSTew Three and a Quarter per Cents, which she had
at her death, and consequently was not specific. " When," said his
Honor, " I refer to a particular thing, such as a ring or a horse, and be-
queath it as ' my ring,' or ' my horse,' it seems to me there might be con-
siderable difficulty in saying that the ' contrary intention ' to which the
Act in its 24th section refers, does not appear on the face of the will ;
but when a bequest is of that which is generic, — of that which may be
increased or diminished, then I apprehend, the Wills Act requires some-
tliing more on the face of the will for the -purpose of indicating such
' contrary intention ' than the mere circumstance that the subject of the
bequest is designated by the pronoun 'my.'" See also Douglas v.
Douglas, Kay, 400 ; Trinder v. Trinder, 1 Law Rep. Bq. 695 ; Moore
V. Madden, 2 I. R. Eq. 511 ; Beahan v. Beahan, 3 I. R. Eq. 427 ; Fer-
guson V. Ferguson, 6 I. R. Eq. 199 ; Castle v. Fox, 11 L. R. Eq. 542.

A bequest by a testator of personal property, which he states " I now
possess," will not of itself simply indicate " a contrary intention" within
the meaning of the Wills Act, so as to exclude subsequently acquired
personal property from passing thereunder. See Wagstaff v. Wagstaff,
8 L. R. Eq. 229 ; there a testator made a bequest of " all my ready

money, bank and other shares, freehold property and any

other jjroperty that I may now possess." It was held by Lord Romilly,
M. R., that the personal estate acquired subsequently to the date of
the will passed by the bequest. *" I am certainly," said his
Lordship, " not disposed to construe any will so as to make ^ ^
real estate go one way, and personal estate another, under the same
words ; but in this case I am of opinion that Cole v. Scott (1 Mac. &
G. 518) does not apply. There the testator made a will, by which, in
effect, he said, ' I do not wish my after acquired real estate, whether
freehold or copyhold, to pass,' for as to the freehold and copyhold es-
tates, he devises those ' which are now vested in me,' and then, when he

comes to the leasehold estates, he adds, ' or shall be A'ested in me at the
VOL. II 39

610 SPECIFIC LEGACIES. ADEMPTION.

time of my death,' showing that he had clearly in his mind the distinc-
tion between the property he was then possessed of and that which he
should afterwards acquire. There is no doubt a testator may make his
will in this way. The only question is, whether this testator has done
so?

" Now, I may compare the expressions which the testator has made
use of with two other forms of expression. If the testator had said
' I give all my real and personal estate,' there can be no doubt that
after-acquired property would have passed. So, again, if he had said,
' I give all tlie real and personal estate I possess.' Does it make any
difference when he puts in the word ' now ' ? The words ' I possess '
mean the same thing as ' I now possess,' In all these cases the law
says that you must read the will as if it had been written on the day of
the testator's death, and you must have distinct words, as there were in
Cole V. Scott, in order to show that the property acquired subsequently
to the date of the will is not intended to pass."

But a thing will not pass as a specific legac}-, unless it actually be-
longs to a testator at the time of his death. Thus, if a testator who
has made a specific bequest of all the money in the public funds of
which he may die possessed, gives instructions to his broker to pur-
chase stock, but no stock is purchased until after the death of the tes-
tator, it will not pass by his will even though the broker may in his
books have given him credit for the stock (Thomas v. Thomas, 27
Beav. 537), but if the broker had entered into a contract for tlie pur-
chase of the stock before the testator's death, the vendor would be held
a trustee of the stock for the testator, and it would consequently pass
by his will : lb. 541.

The result would be the same where the broker was the owner of the
stock and gave the testator credit for the amount in his books ; Ullis
v. Uden, 25 Beav. 482.

Even before the Wills Act, the mere possession, bj' the testator, at the
date of his will, of stock or annuities of an amount equal to or greater
r*9Snl ^^^^ *^® bequest, where it was made merely in general *terms,
as o/ stocks or annuities (Partridge v. Partridge, Ca. t. Talb.
226 ; Simmon v. Vallance, 4 Bro. C. C. 345 ; Webster v. Hale, 8 Ves.
410 ; Wilson v. Brownsmith, 9 Ves. 180 ; Hayes v. Hayes, 1 Kee, 97 ;
Johnson v. Johnson, 14 Sim. 313) ; or of stocks or annuities in par-
ticular funds (Purse v. Snaplin, 1 Atk. 415 ; Bronsdon v. Winter, Amb.
57 ; Bishop of Peterborough v. Mortlock, 1 Bro. C. C. 565 ; Sibley v.
Perry, 7 Ves. 523, 529, 530 ; Webster v. Hale, 8 Ves. 410 ; or of India
bonds (Sleech v. Thorington, 2 Ves. 562, 563) ; or canal shares Bobin-
son V. Addison, 2 Beav. 414) ; would not, unless it appeared clearly to
be the testator's intention to refer to the identical stock, annuities,
bonds, or shares, of which he was possessed, be considered as specific ;

ASHBURNER V. M A C G U I R B . 611

for it might be his intention that his executor should purchase them
out of his general personal estate.

Although stock be given in general terras, if the testator directs a
sale for the benefit of the legatee, the legacy will be specific ; for that
direction would not have been given if the testator intended the stock
to be purchased out of his general personal estate ; Ashton v. Ashlon,
Ca. t. Talb. 152 ; 3 P. Wms. 384 ; Sleech v. Thorington, 2 Ves. 564 ;
Simmons v. Vallance, 4 Bro. C. C. 348.

Where there is a bequest not of part of certain stock, that is to say,
of stock out of stock (in which case the legacy as before shown, is
specific as being part of a specific fund), but of money out of stock " as
of lOOQl. out of my Reduced Stock," then the legacy will not be speci-
fic, but demonstative : Kirby v. Potter, 4 Ves. ^48 ; Deane v. Teste, 9
Ves. 146, 152 ; Rogers v. Clarke, 1 C. P. Coop. 316 ; Attwater v. Att-
water, 18 Beav. 330. And see Jones v. Southall, 32 Beav. 31. As to
this distinction, see Hosking v. Nicholls, 1 Y. & C. C. C. 4Y8 ; Mullins
V. Smith, 1 Dr. & Sm. 204. So, where a certain sum is given, and the
fund in which it is invested is described or pointed out merely, the
legacy will be demonstrative ; Raymond v. Broadhent, 5 Ves. 199 ; Gil-
laume v. Adderley, 15 Ves. 384 ; Le Grice v. Finch, 3 Mer. 50 ; Spar-
row V. Josselyn, 16 Beav. 185; Thomas v. Thomas, 3 Jr. Ch. Rep.
399. So in Lambert v. Lambert, 11 Ves. 607, where the bequest is
"to A., the sum of 12,000Z. of my funded property, to be transferred in
his name, or emploj'ed as it shall appear most beneficial to his interest,"
it was held to be a demonstrative legacy.

'■But the intention, which always governs in these cases, may show that
so much of the identical stock was intended, in which case the legacy
will be specific. Thus, in Morley v. Bird, 3 Ves. 629, the testator
directed A. to pay to certain persons " four hundred pounds out of
seven now Ij'ing in *the Three per Cent. Consolidated;" Lord r^oo-i-i
Alvanley held, that the legacy was specific.

It seems (contrary to the opinion expressed by Sir T. Plumer, in
Parrot v. Worsfield, 1 J. & W. 601) that there maybe a specific legacy
of stock which the testator became possessed of after the time of mak-
ing his will : Fpntaine v. Tylor, 9 Price, 94 ; Stephenson v. Dowson, 8
Beav. 342; Queen's College v. Sutton, 12 Sim. 521. And see Bethune
V. Kennedy, 1 My. & Cr. 114, where Sir C. Pepys remarks, "that a
bequest of all that a testator may possess in the funds would be a spe-
cific bequest of all his funded property, the rule being, that a legacy is
not the less specific for being general." And see Hosking v. Nicholl, 1
Y. & C. C. C. 478; Jacques v. Chambers, 2 Coll. 435; Townsend v.
Martin, 7 Hare, 471 ; Oakes v. Oakes, 9 Hare, 666 ; Thomasy. Thomas,
27 Beav. 587 ; Measure v. Carleton, 30 Beav. 538.

Where a testator makes a specific bequest, for instance, of stock
which he accurately' describes, that stock only, and not stock of a dif-

612 SPECIFIC LEGACIES. — ADEMPTION.

ferent denomination, will pass, though the amount be less than what he
states it to be : Oilliat v. Oillial, 28 Beav. 481 ; and see cases cited in
the note at page 484 ; but if he had no such stock as that which he men-
tions in his will, other stock might pass : Wring v. Wright, 14 Sim. 400 ;
Penticost v. Ley, 2 J. & W. 20t ; Gallini v. Noble, 3 Mer. 691 ; Drake
V. Martin, 23 Beav. 89.

Things ordered by and made for the testator will pass under his will,
although not delivered or paid for until after his death : Field v. Pech-
ett, 29 Beav. 515.

Parol evidence of the state and value of a testator's funded property
is admissible, in order to determine whether a legacy is specific or
general. See Attorney-General v. Grote, 2 Russ. & My. 690, where
Lord Eldon overruled the decision of Sir W. Grant, M. R. reported 3
Mer. 316. And see Boys y. Williams, 2 Russ. & My. 689. In that
case a testatrix gave to A. and M. " 501. each of Bank Long Annuities
now standing in my name." At the date of the codicil, and at her death,
she possessed Long Annuities sufficient to answer this bequest specific-
ally, but not also to satisfy certain legacies charged by the other testa-
mentary papers upon the same stock. It was held by Lord Brougham,
reversing the decision of Sir L. Shadwell, V. C. (reported 3 Sim. 563),
that evidence as to the state and value of the testatrix's property- in the
funds at those respective times was admissible ; and, on the effect of
that evidence, and the language of the testamentary papers taken
together, the bequests to A. and M. were held not to be specific, but
pecuniary. " To the proposition," said his lordship, " that, because the
r*9S9l "'^oi"'is of the will *were clear upon the face of them, extrinsic
evidence was inadmissible, it was wholly impossible to accede :
that being the case of a latent ambiguity, the very case which, accord-
ing to all the text writers, formed the exception to the general rule
against admitting parol evidence to explain or construe the words of
the instrument. It was because the ambiguity was not patent, but
latent ; that is to say, discoverable only upon reference to the subject
matter, upon which the will purported to operate, that the Court was
justified in resorting to extrinsic evidence at all. It was perfectly true
that the Court was not at liberty, in the case of any written instrument,
whether a will of real or personal estate, or a deed, to introduce into
the consideration of the question of construction any matter furnished
by extrinsic evidence for the purpose of giving a different meaning to
the words from that which their plain import conveyed. The Court was
not at liberty by matter of fact to overrule the construction, which was
matter of law arising on the face of the instrument itself. But that
proposition was perfectly consistent with the admission of evidence to
explain, though not to control, the language, to aid, though not to vary
or alter the construction.'' And see Warren v. Postlethwait, 2 Coll.

ASHBTJHNER V. MACGUIRE. 613

116, 121 ; Gollison v. Curling, 9 C. & F. 88 ; Innes v. Sayer, 3 Mac. &
G. 606 ; Horwood v. Griffith, 4 De G. Mac. & G. 700.

Legacies connecled with Realty,} — Every bequest of a lease for years
of land {Long v. Short, 1 P. Wms. 403), or of tithes (Budstone v. An-
derson, 2 Ves. 418 ; Bone v. Medcraft, 1 Bro. C. C. 261), or of a rent
out of a terra of years (Long v. Short, 1 P. Wms. 403), is a specific
legacy.

But if, instead of a rent or annuity, a gross sum is given, payable out
of a term or real estate, that will be a demonstrative legacy, and effect
will be given to it although the particular security intended by the tes-
tator happens to fail: Savile v. Blacket, 1 P. Wms. 778; Fowler v.
Willoughby, 2 S. & S. 354 ; Livesay v. Redfern, 2 Y. & C. Exch. Ca.
90; Willox V. Rhodes, 2 Russ. 452; Creed v. Creed, 11 C. &. F. 510;
Severs v. Severs, 1 Sm. & Giff. 400 ; Paget y. Huish, 1 Hem. & Mill. 663.

But where the only gift is in the direction to pay the legacy' out of a
particular fund, as land, the land alone is liable, and if it fails, the
legacy fails also : Spurway v. Glynn, 9 Ves. 48'^. And see Diclcin v.
Edwards, 4 Hare, 273 ; Welhy v. RocUiffe, 1 Russ. & My. 571.

The proceeds to arise from the sale of land may be so bequeathed as
to render the legacy specific. Thus, in Page v. Leapinwell, 18 Ves. 463,
the testator devised an estate in trust to sell, *but not less than rjjtooo-i
10,000L, and pay several sums amounting to 7,800Z., and the
overplus monies arising from the sale to A. : Sir W. Grant, M. R. held
that it was a specific legacy of 10,000/., and the sale producing less, the
other legatees were obliged to abate with A.

A similar decision is to be found in the case of a bequest out of per-
sonal property. See Walker v. Laxton, 1 Y. & J. 557. There a testa-
trix had power to appoint a sum of 2,200?., and by her will after reciting
the power, she bequeathed the whole sum in several legacies to differ-
ent persons. Alexander, L. C. B., held that, as the amount of these
particular gifts, and of the fund subject to the power exactly tallied, the
legacies were a charge on the fund only, and that the general personal
estate was not liable. See also In re Je.ffery's Trusts, 2 L. R. Eq. 68.

Annuities.'] — Generally speaking. Annuities are legacies: Ward v.
Grey, 26 Beav. 491.

And in general, in the construction of a will, annuities will be com-
prised within the word " legacies " {Duke of Bolton v. Williams, 4
Bro. C. C. 361, 376, 385, cited ; Sihley v. Perry, 7 Ves. 534 ; Swift v.
Nash, 2 Keen. 20), unless there is something in the will to show that
the testator himself distinguished between them : Cornfield v. Wynd-
ham, 2 Coll. 184 ; Bromley v. Wright, 7 Hare, 334 ; Gaskin v. Rogers,
2 L. R. Eq. 284. It is sometimes important to consider this when the
question arises wliether under the word " legacies," annuities are
charged upon land, or are exempted from the payment of legacy duty.

Again, where legacies are directed to be paid out of real estate, an

614 SPECIFIC LEGAOIBa. — ADEMPTION.

annuity, being a legacy, will also be charged on the same fund : Mul-
lins V. Smith, 1 Drew. & Sm. 204, 211.

An annuity when given with words of inheritance is descendable, and
goes to the heir to the exclusion of executors ( Turner v. Turner,
Amb. 782 ; Stafford v. Buckley, 2 Ves. 1T9), secus if, although the
annuity be perpetual, words of inheritance are not used : Taylor v.
Martin dale, 12 Sim. 158 ; Parsons v. Parsons, 8 L. R. Eq. 260.

The question often arises whether an annuity is perpetual, or whether
it is for life only. The answer to it depends upon the intention of the
testator.

If an annuity is given simpliciter, that is, to one generally, a life in-
terest only passes : per Lord St. Leonards in Kerr v. The Middlesex
Hospital, 2 De G. Mac. & G. 583 ; Yates v. Maddan, 3 De G. Mac. &
G. 532 ; Potter v. Baker, 13 Beav. 273.

A bequest of 30Z. a year to A. together with her children B., C. and

D., and for their joint maintenance, was held to be a bequest of

r*2S4-n *^^ annuity to the mother and her children as joint-tenants for

the life of the longest liver of them : Wilson v. Maddison, 2

Y. & C. C. 0. 372.

If an annuity be given to one for life, and after his death to another
simply {Potter v. Baker, 15 Beav. 492), or to one for life with power to
him to give it after his death to another, or to one, and after his death
to several others or the survivors {Blewitt v. Roberts, Cr. & Ph. 274 ;
Yates V. Maddan, 3 Mac. & G. 532, reversing the decision of Sir L.
Shadwell, V. C, reported 16 Sim. 613 ; Sullivan v. Oalbraith, 4 I. K.
Eq. 582), unless there are some other circumstances to vary the con.
struction, the subsequent takers, as well as the first annuitant, will take
for life only. And see Barden v. Meagher, 1 I. R. Eq. 250, per Walsh
(M. R.).

But the will may show that it was the intention of the testator that
the annuity should be perpetual : Mansergh v. Campbell, 25 Beav. 544 ;
3 De G. & Jo. 232. And see Robinson v. Hunt, 4 Beav. 450 ; Hedges
V. Harpur, 3 De G. & Jo. 129 ; Warren v. Wright, 12 Ir. Ch. Rep.
401 ; Barden v. Meagher, 1 I. R. Eq. 246.

Thus, where a testator speaks of an annuity which he gives to a per-
son for life, as if it were in existence after the death of such person, irre-
spective of any words added for the purpose of continuing its existence
for the benefit of any other person, there the annuity given indefinitely
to such other person is a perpetual annuity: per Lord Truro, C., 3
Mac. & G. 540.

A gift by will, even since the Wills Act (1 Viet. c. 26), of an annuity
without words of limitation, but which by the same will is charged on
real estate, is not a devise of a perpetual annuity or rent-cbarge, but is
a gift of an annuity for life as it would have been before the Wills Act :
Nichols V Hawkes, 10 Hare, 342.

ASHBURNER V. MACGUIEE. 615

Where, however, an annuity is directed to be provided out of the
proceeds of property, or out of property generally, or where an annuity
is to be brought into existence by the application of property, and that
annuity is given to a party generally, he will take the property appro-
priated to purchase the annuity, and therefore the annuity in perpetuity if
purchased : per Lord St. Leonards, C, in Kerr v. The Middlesex Hos-
pital, 2 De G. Mac. & G. 583 ; Potter v. Baker, 13 Beav. 2Y3 ; 15 Beav.
489 ; Pawson v. Pawson, 19 Beav. 146 ; Hill v. Rattey, 2 J. & H. 634 ; Boss
Borer, To. 469; Bent v. Collins, 6 L. R. Ch. App. 23"? ; Hicks v. Ross,
26 L. T. R. (jSf. S.) 470 ; 14 L. R. Eq. 141. But the testator may show
by the words of his will an intention only to give an annuity for life :
Banks v. Braithwaite, 32 L. J. N. S. (Ch.) 198.

The gift of the produce of a fund, whether particular or reversionary
*without limit as to time, is a gift of the fund itself: 3 Mac. & r^ossi
G. 540; 12 0. & P. 161.

A direction to purchase an annuity for A. in the British funds {Kerr
V. The Middlesex Hospital, 2 De G. Mac. & G. 516), or in Government
securities (Ross v. Borer, 2 J. & H. 469), will give him a perpetual
annuity. But see Re Groves^ Trusts, 1 Giif. '14.

A mere charge, however, of an annuity' on property devised in fee
simple, will not sufficiently show the intention of the testator that
the duration of the annuity should correspond with the limits of the
estate so charged : Mansurgh v. Campbell, 3 De G. & Jo. 237 ; Sulli-
van V. Galbraith, 4 I. R. Bq. 582.

And mere direction that an annuity is to be paid out of the testator's
" general effects " (Lines v. Mitchell, 6 Ves. 464), or out of a particular
fund (Wilson v. Madison, 2 Y. & 0. 0. 0. 372), will not render the an-
nuity perpetual, for it cannot be construed as an absolute gift of so
much of tlie effects or fund necessary to purchase the annuity.

But other words in the will may show an intention that the annuity
should be perpetual: Pawson v. Pawson, 19 Beav. 146.

If the Court once infers from the will, that the testator intended to
give a sum certain per annum in perpetuity, the absence of any direc-
tion as to the particular part of the testator's property to be segregated
or appropriated to meet it, is immaterial, as the Court will take care
that a sufficient part of the testator's property is set apart for that pur-
pose: Stokes V. Heren, 12 C. & F. 161 ; Hill v. Rattey, 2 J. & H. 634,
644 ; but see the remarks of Lord Campbell, C, in Lett v. Randall, 2
De G. F. & Jo. 392, 393.

The question often arises as to whether an annuity is a charge upon
the corpus of a fund, or is payable only out of the income ; this is a
question of intention. Where a testator directs a sufficient sum to be
set apart in order to produce an annuity, and does not leave sufficient
assets (Wright v. Callender, 2 De G. Mac. & G. 652 ; Miner v. Bald-
win, 1 Sim. & G. 522), or the sum set apart is originally insufficient

616 SPECIFIC LEGACIES. — ADEMPTION.

{Bright v. Larcher, 3 De G. & Jo. 148 ; and see Perkins v. Cooke, 2 J.
& H. 393), or becomes so in consequence of a reduction of interest, the
annuitant will be entitled to be paid out of the corpus. Thus in May
V. Bennett, 1 Russ. 3'rO, a testator directed his executors to lay out in
what Government securities they pleased, as much money as would pro-
duce the annual interest of 54L 12s. per year to his wife during her life,
in case she did not marry again. The executors invested in the .5Z. per
cents, a sum which yielded dividends exactly equal to the specified in-
come. Those dividends being afterwards diminished by the conversion
r*9SRl °^ *^^& 5L per cents, into il. per cents., it was held by Lord
GifTord, M. R., that the widow was entitled to have the defi-
cieno}'^ made good, either by the sale from time to time of portions of
the appropriated stock, or out of any other part of the residue which
could be made available. See also Mills v. Drewitt, 20 Beav. 632 ;
Percy v. Percy, 35 Beav. 295.

Where tlie dividends of a fund in Court are insufficient for the pay-
ment of an annuity charged upon it, a prospective order will be made
for the sale from time to time of so much of the corpus as will, to-
gether with the dividends, be necessary for raising the amount of the
annuity: Hodge v. Lewin, 1 Beav. 431 ; Swallow v. Swallow, lb. 432, n.

Where the testator shows an intention that the fund out of which
the annuity is payable should be preserved whole during the life of the
annuitant, and at his death go over to another person, then the corpus
is not liable to make up the deficiencj' of the income of the fund to
pay the annuity. Thus in Foster v. Smith, 1 Ph. 629, a testatpr de-
vised certain real estates to trustees in trust to receive the rents and
profits, and thereout to pay to his wife the clear annuity of 2001. dur-
ing her life, and from and immediately after the decease of his wife,
upon trust to convey the estates to his three sisters. It was held by
Lord Cottingham. C. (reversing the decision of Knight Bruce, V. C,
2 Y. & C. 0. C. 193), that the annuit}' was a charge only on the rents
which accrued during the life of the widow, and not on the corpus.
" There can be no doubt," said his Lordship, " that if the trust had
simply been to receive the rents, issues, and profits of the estates when
and as the same should become due and payable, and thereout to pay
to his wife, if she should survive the testator, an annuity of 200Z. for
her life, that this would have been a charge upon the rents, until the
whole amount of the annuity with the arrears had been paid. And the
trustees, after the death of the widow would have been bound to apply
the rents accordingly. But in this case a new trust arises on her death ;
for the trustees are directed, ' from and immediately after that event,'
to convey the estate to the sisters ; and if they perform their trust,
which I think they are bound to do, they would be disabled from ap-
plying the subsequent rents to the discharge of the arrears. To obviate
this, it is proposed to construe the direction to convey to the sisters on

ASHBUR'NER v. MACGtriRE. 61 7

the death of the widow, as if it had been a direction to convey subject
to the annuity. But this would essentially alter the testator's will ; in
fact, to make a new will. And I think there is nothing in the will to
justify it." See also Earle v. Bellingham, 24 Beav. 445 ; Baker v.
Baker, 6 Ho. Lo. *Ca. 616; Tarholtom v. Earle, 11 W. R. r^osil
(V. C. S.) 680; SAeppar^^ V. S/ieppard, 32 Beav. 194. "- "'

But where an annuitant acquiesced diiring her whole life without
asserting her right to be paid the full annuity by resorting to the cor-
pus, and stood by allowing dealings to take place on the faith that the
corpus was not liable to diminution, it was held that her representa-
tives could not enforce a claim to anj' arrears of the annuity : Upton
V. Vanner, 1 Drew. & Sm. 594.

Where an annuity is charged upon real {Picard v. Mitchell, 14 BeaA^
103 ; Hohson v. Neale, 17 Beav. 182; Byam v. Sutton, 19 Beav. 556 ;
Howarth v. Bothwell, SO Beav. 516; and see cases cited, lb., p. 519,
note) or personal (Gordon v. Bowden, 6 Madd. 342 ; Swallow v. Swal-
low, 1 Beav. 432, n.) property, the corpus is liable for the arrears.

Secus, where there is a trust to pay the annuities out of the growing
profits: Phillips v. Phillips, 8 Beav. 193; Miller v. Huddlestone, S
Mac, & G. 513, 530 ; Hindle v. Taylor, 20 Beav. 109 ; Addecolt v. Ad-
decott, 29 Beav. 460 ; Salvin v. Weston, 14 W. R. (V. C. W.) Y51.

Where there is a general and indefinite trust to receive rents and
profits for the payment of an annuity, it amounts to an indefinite charge
of the annuity on the corpus, which will consequently be payable out
of it. Thus in Phillips v. Gutteridge, 11 W. R. (L. C.) 12; 32 L. J.
(Ch.) 1, a testator bequeathed leasehold land and ground rents to a
trustee upon trust to receive the rents, issues, and profits, and pay the
annual sum of 60L to H. for her life, and after her decease, to raise by
sale or mortgage 400Z., to be divided as therein mentioned. And upon
further trust, " after the performance of all the before mentioned trusts,
upon trust to assign the said land, ground rents, and premises or such
part thereof as should remain undisposed of to his son absolutely." It
was held by Lord Westbury, C, affirming the decision of Sir J. Stuart,
T. C., that the annuity was a charge upon the corpus. So, in Birch v.
Sherratt, 2 L. R. Ch. App. 644, a testator directed his trustees to con-
vert and invest his property, and " with and out of the interest, divi-
dends, and annual proceeds thereof, levy and raise the annual sum of
lOOZ.," and pay it to his mother for life, " and from and after the pay-
ment of the said annual sum of lOOZ, and subject thereto," he declared
that the trustees should stand possessed of his said trust monies, stocks,
and securities, upon the trusts thereinafter mentioned. The income of
the estate being insufficient to pay the annuity, it was held by the
Lords Justices, reversing the decision of Sir John Stuart, V. C. (4 L.
R. Eq. 58), that the deficiency must be paid out of the corpus. " If,"
said Rolt, L. J., "an annuity is given out of the rents and profits, or

618 SPECIFIC LEGACIES. — ADEMPTION.

dividends *and interest, and the capital or corpus is given in-
L -■ tact, from and after the annuitant's death, to another, the case
is equivalent to the case of a life interest with remainder over. But if
the capital is given over, not ' from and after the annuitant's death,'
but, ' from and after satisfaction of the annuity and subject to the an-
nuity,' then I think the case is equivalent to the case of a legacy and a
residuary bequest, especially if the gift of the annuity itself admits of a
construction charging it on the capital of the estate or of the trust
fund." See also. Bell v. Bell, 6 Ir. Eq. 239.

An annuity may, according to the construction of a will, be held to
be after the death of the annuitant a continuing charge upon rents and
profits, until the arrears of the annuity are paid, but not a charge upon
the corpus. Thus, in Booth v. Goulton, 5 L. R. Ch. App. 684, a testa-
tor gave his real and personal estate to trustees, in trust to pay his
debts and legacies, and then out of the annual profits of the residue,
to pay three life-annuities, and " subject as aforesaid," to stand pos-
sessed of the residue, upon trust to apply the income for the benefit of
G. Booth for life, and after his death he gave the residue to P. Booth.
The income of the residue proved insufficient to pajr the three annui-
ties in full, and the trustees paid them rateably till November, 1868,
when one of the annuitants died, with an arrear owing to him ; the ten-
ant for life being still living. It was held by Lord Justice GiflTard,
varying the decision of Sir John Stuart, V. C, that the annuities were a
continuous charge on the rents and profits, and that the rents and profits
since November, 1868, must be applied, first in paj^ment of the arrears
of the three annuities pari-passu, and then in payment of the two sub-
sisting annuities. And see Stelfox v. Sugden, Johns. 234.

Where a testator directs an annuity to ho purchased, the annuitant
is entitled to receive the money necessary to purchase the annuity
(Ford V. Batley, 17 Beav. 303 ; Tales v. Yates, 28 Beav. 641 ; and see
Palmer v. Grauford, 3 Swanst. 482, 488 ; Daivson v. Hearn, 1 Russ. &
My. 606 ; Woodmeston v. Walker, 2 Russ. & My. 197 ; Day v. Day, 1
Drew. 569), even although there be a declaration in the will that he shall
not be allowed to receive the value of the annuity in lieu thereof
(Stokes V. Cheek, 28 Beav. 620): fljr it is obvious that if an annuity
were purchased he might sell it immediately. lb. 261.

And it is immaterial in case the annuitant is a man (Day v. Day, 1
Drew. 560) or an unmarried woman (Woodmeston v. Walker, 2 Russ.
& My. 197 ; Be Browne's Will, 27 Beav. 324), that the annuity is di-
rected to be paid into their hands without power of anticipation, or that
_ there is a gift over upon bankruptcy or alienation ; *Day v.
L -^ Day, 1 Drew. 569, sed vide contra. Power v. Hayne, 8 L. R. Bq.
262. And if the annuitant dies before the purcliase is effected^ his
personal representative will be entitled to the money so directed to be

ASHBURNER V- MACGUIRE. 619.

laid out : i6., and see Barnes v. Bowley, 3 Yes. 305 ; Palmer v. Grau-
ford, 4 Swanst. 482, 488.

And the result is the same where the money to be invested is to arise
from residuarj' estate (Day v. Day, 1 Drew. 569), or from the sale of
land, and the annuitant dies during the life of a person taking a prior
interest. Thus, in Bayley v. Bishop, 9 Ves. 6, the testator devised an
estate to his wife for life, and after her decease to trustees upon trust
to sell, and with the money arising from the sale (after paying certain
legacies) to lay out 500L in the purchase of an annuity for his son.
The son died during the life of the wife. It was held by Sir William
Grant, M. R., that the administratrix of the son was entitled to the
500L " It is clear," said his Honor, " that the testator meant an annu-
ity to be purchased with the 500Z. ; which is the same in effect as giving
a legacy of 500L to his son ; for upon a bill filed he might have received
the money; and the Court would not have compelled the trustees to lay

it out in an annuity Taking this then as a pecuniary legacy of

500L, the question is whether it fails by the death of the son in the life
of the widow ? I am of opinion that it does not. The remainder to
the trustees was a vested interest at the testator's death. If the wife
had then been dead, the trust must have been immediately executed,
the estate sold, and the money distributed. It was therefore merely on
account of the estate for life in the widow, and not with reference to
the circumstances of the legatees, that tlie sale and payment were post-
poned. It is impossible to reconcile all the cases of legacies payable
out of land. But upon the authority oi Dawson v. Killet (1 Bro. C. C.
119), I must hold this vested upon the testator's death." See also Day
V. Day, 1 Drew. 569.

Where, however, a testator does not direct an annuitj^ to be bought,
but has entered into a covenant to pay, or directs the payment of, one
out of his estate, the annuitant is not entitled to have the estate, or a
portion of it, sold for the purpose of obtaining payment of "the value of
the annuity in a gross sum: Yates v. Yates, 28 Beav. eSY, 641.

Whether Bequests contained in a Besiduary Clause are Specific or
General.'] — The question, whether a bequest contained in a residuary
clause is specific or general, is of much importance where the attempt
is made to shift the primary liability of the personalty upon realty (see
Ancaster v. *Mayer, ante, vol. i. p. 630) ; and where the perso-
nal estate comprised in such clause consists of property of a ^ -'
wasting nature, as long annuities and leaseholds, is given to persons in
succession. See Howe v. Earl of Dartmouth, post, 320.

Legatee^s right of selection.] — If a testator bequeaths to a legatee a
given number of articles, forming part of a stock of articles of the
same description ; as, for instances, if he has twenty horses in his stable?
and bequeaths six of them, the legatee has the right of selection : Jacques

620 SPECIFIC LEGACIES. ADEMPTION.

V. Chambers, 2 Coll. 435 ; Richards v. Richards, 9 Price, 226 ; Ken-
nedy V. Kennedy, 10 Hare, 438.

Upon the same principle where the main object of a gift is to benefit
the person who is to take, and no other person is interested in the be-
quest— in such case if the gift cannot be applied to the purpose speci-
fied, or if the legatee prefers to have it otherwise applied, he has the
option of saying, that although the testator has expressed his desire
that the benefit shall be conferred in a particular form, he does not
like to take it in that manner, and may ask the Court to give him the
property absolutely.

Thus in Re Skinner^s Trusts, 1 J. & H. 102, a testator bequeathed
manuscripts to trustees " for mjr grandson that they may provide for
the said books being published to the best advantage for the interests
of the said claild, so as to contribute towards raising a fund to assist
him when he goes to College," and bequeathed lOOOZ. towards the
printing: it was held by Sir W. Page Wood, V. C, that the grandson
was entitled to elect to take the lOOOL, it appearing to be impossible to
publish the book at a profit. And see Sidney v. Vaughan, 2 Bro. P. C.
254.

Where, however, there is another purpose distinctly and clearly ex-
pressed, independent of the object of benefiting the legatee, and beyond
the mere intimation of a wish as to the mode by which the benefit
should be conferred, the principle will not apply, and the legatee can-
not elect: per Sir W. P. Wood, V. C, in Re Skinner's Trusts, 1 J. &
H. 105 ; and see Lassence v. Tierney, 1 Mac. & G. 551 ; Trimmer v.
Dauby, 2 Jur. N. S. 26T ; Lonsdale v. Berchtoldt, 3 K. & J. 185 ; Cow-
per V. Mantel, 22 Beav. 281.

Ademption of Legacies.] — A general legacy, as it is payable out of
the personal assets generally, will not, if they are sufficient for that
purpose, be liable to ademption, except in the case of a legacy to a child
where a subsequent portion is given by the parent or person in loco
parentis. As to which see note to Ex parte Rye, post.

The claims of a specific legatee will be defeated, if the thing specifi-
r*9qn <^^lb' bequeathed to him be not *in existence at the time of the
testator's decease ; — the legacy, to use the common expression,
being adeemed. It must not, however, be supposed that the ademption
of a specific legacy is in principle in any way similar to the ademption
of a general legacy by a portion ; for, in the latter case, all depends
upon the intention, either express or presumed, of a parent or one in
loco parentis to substitute a portion for a legacy ; in the former, the
intention of the testator is immaterial. According to the rule, as laid
down by Lord Thurlow in the principal case, the question in these cases
will be, whether the legacy be specific, and, if so, whether it is in exist-
ence at the testator's death. In a subsequent case, Lord Thurlow again
repeats the rule laid down in the principal case, in language strongly

ASHBURNEE V- MACGUIRE. 621

condemnatory of those authorities which proceeded upon the notion,
that the animus adimendi should be considered. " When," said his
Lordship, " the case of Ashburner v. Macguire was before me, I tooli
all the pains I could to sift the several cases upon the subject, and I
could find no certain rule to be drawn from them except this — to in-
quire whether the legacy was a specific legacy (which is generally the
difficult question in these cases), and, if specific, whether tlie thing re-
mained at the testator's death ; and one must consider it in the same
manner as if a testator had given a particular horse to A. B. ; if that
horse died in the testator's lifetime, or was disposed of by him, then
there is nothing on which the bequests can operate. The idea of pro-
ceeding upon the animus adimendi has introduced a degree of confusion
in the cases, which is inexplicable, and I can make out no precise rule

from them upon that ground It will be a safer and clearer way

to adhere to the plain rule which I before mentioned, which is to in-
quire whether the specific thing given remains or not." Stanley v.
Potter, 2 Cox, 182.

A specific legacy of goods at a particular place, will, in general, be
adeemed by their removal. Thus in Oreen v. Synionds, 1 Bro. C. C.
129, n., the testator bequeathed to C. all his books at his chambers in
the Temple ; he afterwards removed the books into the country, and it
was held that the removal aflfected an ademption of the legacy. So, in
Heseltine v. Heseltine, 3 Madd. 276, the testator gave to his wife all
his household goods, &c., goods and chattels whatsoever, that should
be in and about his dwelling-houses, in Doctors' Commons and at
Walthamstow at the time of his decease ; and after the making of his
will, the testator took a house in Bedford-square, and removed to it
the greater part of the furniture from his house in Doctors' Commons,
and it was held by Sir J. Leach not to pass by the will. * " Prob- r^aaoi
ably," said his Honor, " if the testator had been asked whether
he meant to give his wife the furniture in Bedford-square, he would
have answered in the affirmative ; but a gift of such furniture as should
he in his house at Doctors' Commons, and at Walthamstow, at the
time of his decease, cannot pass furniture which at the time of his de-
cease was in his house in Bedford-square." And see Golleton v. Grath,
6 Sim. 19 ; Spencer v. Spencer, 21 Beav. 548 ; but see Blagrove v.
Goore, 27 Beav. 138.

The like result will follow if the goods are removed by an agent,
with the testator's approbation : Shaftsbury v. Shaftsbury, 2 Vern. 747.
A legacy of specific chattels will be adeemed upon their total loss
or destruction during the life of, or at the same time as the death of,
the testator, even although they may have been insured, and their
value recovered from the insurers. See Durrant v. Friend, 5 De G. & Sm.
843. There a testator gave specific chattels to a legatee, and the resi-
due of his estate and effects to his executors ; and having insured the

622 SPECIFIC LEGACIES. — ADEMPTION.

chattels, he took them with him on an Indian voyage. The ship was
lost at sea, the goods perished, and the testator was drowned. The
executors received the monies in which the goods had been insured
from the insurers. In a suit for the administration of the testator's
estate, it was held by Sir James Parker, V. C, that the testator and
the chattels having perished together, the legatee had no interest in the
chattels, and consequently not in the insurance money ; but that it
vested in the executors as part of the residuary estate.

A mere temporary or accidental removal may not amount to an
ademption. Thus, in Land v. Devaynes, 4 Bro. C. C. 53*7, a testator
gave all his plate and linen in his house in S. (with the lease) to his
wife. He had but one set of plate and linen, which was usually re-
moved, with the familj', from house to house. The plate happened to
be at B., the country house, at his death, yet it passed to the wife. So,
likewise, under a bequest of household furniture, pictures, and books,
which might be at the testator's decease in, upon, or about his mansion,
it has been held, that pictures removed from the mansion, and in the
hands of a picture-cleSner to be cleaned, and books sent to be repaired,
passed, but not articles purchased for the mansion, and not sent home
at the testator's decease : Lord Brooke v. Earl of Warwick, 2 De Gr.
& Sm. 425 ; see also Spencer v. Spencer, 21 Beav. 548. So ademption
has been held not to take place by the removal for safe custody of.
r*9Qq-i plate to a banker's {Domvile v. Baker, 32 Beav. 604), or of fur-
niture *and other articles to a warehouse (lb.).

So it seems that ademption will not take place if the goods are re-
moved on account of a fire. " They should be considered," says Lord
Hardwicke, "as being in the testator's house at his death, apd the
legacy is not defeated by that accident" (Chapman v. Hart, 1 Ves.
2*71) ; nor if they are removed fraudulently, to disappoint the legacy,
or by a tortious act unknown to the testator : Shaftsbury v. Shaftsbury,
2 Vern. 141, 748, n. 2 ; Domvile v. Taylor, 32 Beav. 604.

A distinction has been taken by Lord Hardwicke between a legacy
of goods on board a ship and in a house, although he knew of no case
of the kind ; he thought that the bequest of goods on board a ship must
be supposed to be made in consideration of the several contingencies
and accidents they were liable to ; and if it should be determined, that
if by anjr accident they should not be on board at the testator's death,
they should not pass, it would defeat several marine wills. If the goods
were removed to preserve them, the ship being leaky, or likely to foun-
der ; or if the testator was removed to another ship (a contingency he
was subject to daily), and he was forced to obey, this would not defeat
the legacy : Chapman v. Mart, 1 Ves. 213.

Where the words of a bequest have not necessarily a reference to a
particular locality, the removal of the articles comprised in the bequest
to a different place from that which they were in at the date of the will,

ASHBUENER V. MACGUIRE. 623

is immaterial. Thus in Norris v. Norris, 2 Coll. 719, where a testator
bequeathed to his wife as follows : " All my interest in my house at
Lavender Hill, the furniture, books, pictures, wines," &e. &i.c. After
the date of his will, the testator removed from Lavender Hill to Spen-
cer Lodge, taking with him furniture, books, pictures, wines, &c. He
afterwards purchased more of these articles, and died at Spencer Lodge.
It was held by Sir. J. L. Knight-Bruce, V. C, that his wife was entitled
to the furniture, books, pictures, and wines which he had at the time of
his death. " There may," said his Honor, " be room to suspect or con-
jecture that in using the expressions the furniture, books, pictures,
wines, &c. &c., the testator had in his mind only such effects within the
description, as were then, or as at his death might be, in the dwelling-
house then occupied by him ; especially when their place in the will is
observed. But the expressions themselves have not necessarily so re-
stricted a meaning — have not, necessarily, any local reference. It
would, I think, be giving too much weight to the use of the definite ar-
ticle, and the particular position of the phrase, so as to *con- r^^nq i-i
fine the construction. The language must, I conceive, be taken
to have been used generallj-, not with regard to any particular place,
nor with regard only to such ' furniture, books, pictures, wines,' &c., as
he had when he made his will."

If a debt, specifically bequeathed, be received by the testator, it will
be adeemed, for there exists nothing for the will to operate upon : Rider
v. Wager, .% P. Wms. 329, 330, 331; Birch v. Baker, M.os. 373; Bad-
rich V. Stevens, Z Bro. C. C. 431 ; Stanley v. Potter, 2 Cox. 180; Fry v.
Morris, 9 Ves. 860. See also Barker v. Rayner, 5 Madd. 208. There
a testator bequeathed two policies efi'ected upon the life of his wife, to
his executors, upon trust to pay the premiums during the life of his
wife, and after her death, after making certain payments, to put out the
residue of the money to be received by virtue of the policies upon real
or Government securities, upon trust for certain persons. The testa-
tor's wife having died during his life, he received the amount of the two
policies, and, after paying thereout a sum to secure which they had been
assigned, invested the residue in securities, upon which it remained at
the time of his death. Sir John Leach, V. C, held that the legacy was
adeemed. " In the case of Ashhurner v. Macguire," said his Honor,
" Lord Thurlow entered very fully into the consideration of all the cases
which are to be found upon this subject. And in that case, and still
more unequivocally in the case of Stanley v. Potter, in Mr. Cox's Reports,
he altogether repudiated the principle of the animus adimendi, as tend-
ing to inexplicable confusion ; and held, that when it was once determ-
ined that "the legacy of the debt was specific, and not demonstrative,
that the only safe and clear way was to adhere to the plain rule — that
there is an end of a specific gift, if the specific thing do not exist at the
testator's death. It may be questionable, from the cases of Coleman v.

624 SPECIFIC LEGACIES. — ADEMPTION.

Coleman (2 Ves. jun. 639), and Roberts v. Pocock (4 Ves. 150), whether
Lord Rosslyn fully adopted the principle of Lord Thurlow ; but the
cases of Fryer v. Morris (9 Ves. 360), and Le Grice v. Finch (3 Mer.
61), before Sir W. Grant, appear to me to manifest, by necessary infer-
ence, that the learned judge considered the law to be so settled. Taking
it, therefore, as an established principle, that, in the ease of a specific
gift, the Court is only to inquire whether the specific thing remains at
the death of the testator, and cannot enter into the consideration,
whether it has or not ceased to exist by an intention to adeem on the
part of the testator, it necessarily follows, that, in the present case, I
am bound to declare that the legacies of the policies of insurance, being
r*9qfil ** specific gift, has altogether failed, bj' the non-existence of
the policies at the death of the testator." This decision, on ap-
peal was affirmed by Lord Eldon, 2 Russ. 122.

In Gardner v. Ratton, 6 Sim. 93, the testator bequeathed 1000Z., se-
cured on mortgage of an estate at W., belonging to R. T. The 10001.
and interest were received after the date of tlie will by the testator's
agent, on his account, and immediately afterwards 6000L,part of it, was
invested on another mortgage, and the remainder was paid into a bank
in which the testator had no other monies, but was afterwards drawn
out by a person to whom the testator had given a cheque for the
amount. It was held by Sir L. Shadwell, V. C, that the legacy was
specific, and notwithstanding the 6000L remained due on the second
mortgage at the testator's death, that the legacy was wholly adeemed.
" My opinion," said his Honor, " is that when the testator received the
whole of the debt, there was an end of the subject, and, consequently,
that this is a clear case of ademption." See, also, Phillips v. Turner^
11 Beav. 194; Sidebotham v. Watson, 11 Hare, 170; Gale v. Gale, 21
Beav. 349 ; Jones v. Southall, 32 Beav. 31.

Tlie principles, therefore, laid down by Lord Thurlow being clearly
established, we may consider that the distinction taken in some of tlie
older decisions (see Orme v. Smith, 1 Eq. Ca. Ab. 230, pi. 2 ; 2 Vern.
681 ; Partridge v. PartiHdge, Ca. t. Talb. 228 ; Crockat v. Grockat, 2
P. Wms. 165 ; Rider v. Wager, 2 P. Wms. 330 ; Earl of Thomond v.
Earl of Suffolk, 1 P. Wms. 464 ; Drinkwater v. Falconer, 2 Ves. 624 ;
Ford V. Fleming, 2 P. Wms. 469 ; Ashton v. Ashton, 3 P. Wms. 385;
Hambling v.- Lister, Amb. 402), viz. between a voluntary and compul-
sory payment of a debt to the testator, and the argument which pre-
vailed, that in the former case it might be presumed there was no ani-
mus adimendi, is no longer of any weight.

A partial receipt of a debt will, as was held by Lord Thurlow, in the
principal case, only be an ademption pro tanto : Jones v. Southall, 32
Beav. 31.

Under particular circumstances the receipt of a debt has not been
held to amount to an ademption. Thus, in Crockat v. Crockat, 2 P.

ASHBURNER V. MACGtJIKE. 625

Wins. 164, the testator, who had placed in a goldsmith's hands 550Z. for
which he had taken a note paj'able to him or order, by his will gave to
his sister the sum of bbOl. which was then in the hands of the goldsmith
The testator had, before making his will, drawn some bills on the gold-
smith, for several sums of money, which, in all, had reduced the 550L to
430Z. Sir Joseph Jekyll, M. E., held that the legacy was not partially

adeemed. *" These payments out of the 550Z. in the hands of

r*2961
Mr. Ellis having been all ordered by the testator before the ^ -^

making of his will, this cannot be said to be an ademption of the legacy,
but is an express indication of the testator's intention, that as the note
for the full sum of 550Z. was still standing out, notwithstanding he had
ordered the payment in of part of the note, jet he renounced all those
payments, and willed that the whole 550?. should be the legacy which
he gave to his sister." In Graves v. Hughes, 4 Madd. 381, tlie testa-
trix, by a codicil to her will, bequeathed to W. H. and M. H. an arrear
of interest due on a mortgage, amounting to 600Z., as she computed the
same. After making the codicil, she lived eleven years, and received
interest from the mortgagor, to the amount of 648L On a reference to
the Master, he found that 646Z. 8s. 'id. was due to the testatrix for in-
terest when she made her codicil, and that a sum to that amount was
due to her for interest when she died ; and, upon an affidavit he found
that the interest received by the testatrix after the making of the codi-
cil was so received in respect of interest after the making of the codicil,
leaving outstanding the arrear of interest due when she made the codi-
cil. Sir J. Leach, V. C, held, that the legacy was not adeemed by the
receipt of interest subsequent to the making of the codicil. " Prima
facie," said his Honor, " the monej' received subsequent to the codicil
was applicable in payment of the interest which first became due; but
the testatrix might, if she chose, apply the money in discharge of the
interest which accrued due subsequent to the making of the codicil,
and leave the interest due when she made her codicil, as an outstanding
debt; and the affidavit mentioned in the Master's report proves that
fact, iind is admissible as proof of the testatrix's intention:" Earl of
Thomond v. Uarl of Suffolk, 1 P. Wms. 462, 464 ; Pvlsford v. Hun-
ter, 3 Bro. C. C. 416.

A bequest of a debt may be in its terms so comprehensive as to ex-
tend to the fund in its altered state after it has been received by the
testator : Clark v. Browne, 2 Sm. & G. 524.

Where stock is standing in the name of a trustee at the time a testa-
tor makes a specific bequest of it, but is afterwards transferred to and
sold out by him, and cannot be traced, being spent or mixed with his
other monies, the legacy will be adeemed (Lee v. Lee, 27 L. J. (Ch.)
824) ; but where a testator makes a specific bequest of the stock it will
not be adeemed by a transfer, after the date of the will, into his own
VOL. II 40

626 SPECIFIC LEGACIES. — ADEMPTION.

name. Lee v. iee, 27 L. J. (Ch.) 824. See also Moore v. Moore, 29
Beav. 496; Jones v. Soathall, 32 Beav. 31.

The question has arisen, whether a testator, who, having made
*a specific bequest of stock, sells it, and afterwards purchases
L ■-' the same or less amount of the same stock, will thereby either
wholly or partially revive the specific bequest. Lord Talbot, in Part-
ridge V. Partridge, Ca. t. Talb. 226, 221, seems to have thought that he
would. " All cases of ademption of legacies," observed his Lordship,
" arise from a supposed alteration of the intention of the testator ; and
if the selling out of the stock is an evidence to presume an alteration of
such intention, surely his buying in again is as strong an evidence of his
intention that the legatee should have it again." And see Aveling v.
Ward, 1 Ves. 426 ; Drinkwater v. Falconer, 2 Ves. 625. According,
however, to the rule laid down by Lord Thurlow, in the principal case,
the intention of the testator will not be taken into consideration. The
question will be, Is the identical stock bequeathed bj'the testator in ex-
istence ? And if that question is answered, as in such case it must be
in the negative, the legacy is adeemed. Thus, in In re Gibson, 2 L. R.
Eq. 669, a testator, being at the time possessed of lOOOZ. '■^guaranteed
stock " in the ^'orth British Railway, bequeathed to his son " my one
thousand North British Railway Preference Shares." After making his
will, he sold his North British guaranteed stock, and died possessed of
shares and stock in the North British Railway, acquired by several suc-
cessive purchases, exceeding the amount bequeathed to his sou. It
was held by Sir W. P. Wood, V. C, that the bequest, being of a spe-
cific thing, which had been adeemed, and was not in the testator's pos-
session at the time of his death, a contrary intention, so as to exclude
the operation of 1 Vict. c. 26, s. 24, sufficiently appeared upon the will,
and that the son was not entitled to have his legacy satisfied out of the
North British Railway shares and stocks in the testator's possession at
the time of his death. " Suppose," said his Honor, " a man to have at
the date of his will, a picture of the Holy Familj', b}- some inferior
artist, and to give by his will 'my Holy Family.' He afterwards dispo-
ses of this picture, and subsequently acquires by purchase or gift a very
much better one, on the same subject, painted by an eminent artist.
Would it not be a monstrous construction to hold, that the picture ex-
isting in the testator's possession at the time of his death would pass?
When there is a clearly indicated intention upon the face of the will, to
give the single specific thing and nothing else, it would be a very nar-
now construction of the words of section 24 of the Wills Act, to hold
that yovi must sweep in everything to which the words might be held to
apply, without the slightest reference to the state of things existing at
the *date of the will. It is true that the testator had not at the
L -' date of his will 1000 shares, but 1000 guaranteed stock. But he
had nothing else to which the words of the will could be applied, and

ASHBURNBR V. MACGUIRE. 627

no one could doubt that this stock was the thing pointed out by the
will. After the date of his will he sold this lOOOZ. stock, and purchased
not uno ictu, but bit by bit, a number of other shares or stock. This
bit-by -bit purchase would not come within the reasoning of Lord Hard-
wicke in Auelyn v. Ward, (1 Ves. 423), as being a substitution of one
entire fund for another. On the contrary, it was rather like the pur-
chase of some totally different article I adhere to my view,

that where there is a distinct reference to a distinct and specific thing,
and not to a genus, there is sufficient indication of ' a contrary inten-
tion, to exclude the operation of the rule established by the 24;th sec-
tion of the Wills Act, and limit the operation of the will to the state of
things existing at the date of the will. In this case, the testator, at the
time of his death, had not this specific stock in any shape. He had
parted with it, and acquired by subsequent purchase a much larger
number of shares. These subsequent purcliases were not in any shape
a replacing of the original fund, and there is nothing to lead the Court
to suppose that, having once adeemed the specific bequest, the testator
had replaced the identical thing. He has distinctly referred to one
tiling in his will, which was no longer in existence at the time of his
death: that thing, and that only, can be considered as the subject of
the bequest. I must, therefore, hold that the claim of the son to have
his legacy satisfied out of the New Guaranteed North British Stock ex-
isting at the testator's death, fails." See also Pattison v. Pattison, 1
My. & K. 12.

Where, however, the thing specifically given has been changed in
name and form onlj^, and is in existence substantially the same, though
in a different shape, at the time of the testator's death, it will not be
considered as adeemed by such a nominal change. Thus, if stock is
converted into a different species by Act of Parliament (Partridge v.
Partridge, Ca. t. Talb. 226, 228 ; Bronsdon v. Winter, Amb. 51, 59),
or is merely transferred from the names of trustees into the name of
the testator (Dingwell v. Askew, 1 Cox, 427 ; and see Amb. 2fi0 ; 3 Bro.
C. C. 416 ; Moore, 2T3, 376), it will not be adeemed. So likewise, in
the recent case of Oakes v. Oakes, 9 Hare, 666, where a testator had
bequeathed all his Great Western Railway shares and all other the rail-
way shares which he might be possessed of at the time of his decease :
it was hold by Sir George Turner, V. C, that the bequest was not
adeemed, *in consequence of the Great Western shares which
the testator had at the date of his will having been converted, L -■
by a resolution of the companj' under the authority of an Act of Par-
liament, into consolidated stock, but that consolidated stock in the same
company, purchased by the testator after the date of his will, did not
pass under the bequest of the Great Western Railway shares to the
legatee.

Moreover, where stock specifically bequeathed has been transferred

628 SPECIFIC LEGACIES. — ADEMPTION.

by fraud or practice, on purpose to disappoint the legacy ; or by torti-
ous act, unknowu to the testator (Shaftsbury v. Shaftabury, 2 Vern.
747, 748, n 2) ; or without his authority {Basan v. Brandon, 8 Sim.
171) ; or if he die before the authority given to his agent to transfer be
carried into effect (Basun v. Brandon, 8 Sim. 171 ; Harrison v. Asher,
2 De G. & Sm. 436) : in all these cases there will be no ademption.

Where a person after making by his will specific bequests, becomes
insane, and otlier persons without authority dispose of the things so
bequeathed, the question arises whether they will be thereby adeemed.
In the case of Browne v. Groombridge, 4 Madd. 495, a testator gave to
his wife all his ready money and bank notes which he should have
about his person, or in or about his usual residence, at the time of his
decease. He gave specifically to others all his exchequer bills and
stock standing in his name at the time of his decease. The testator
became insane, and during his incapacity several large sumes of monej'
which were paid to him was invested in his behalf and in his name in
the purchase of stock and exchequer bills. His wife died during the
testator's lifetime, whereby her legacy lapsed. It was held by Sir John
Leach, V. C, that the specific legatees of the stock and exchequer bills
were entitled to the stock and exchequer bills so purcliased, and that
the next of kin of the husband did not take them as being " ready
money," to which they were entitled by reason of the lapse of the legacy
to his wife. His Honor observed, " that in the bequest to his wife of
the ready money and bank notes which testator should have about his
person, or in or about his usual residence, at the time of his decease, he
could contemplate only the floating cash, which he ordinarily kept
about him. That it was the duty of those who managed the testator's
aflairs, during his incapacity, to act as a provident owner would do,
and not to have large sums of money unemployed. That there was no
equity between the legatees ; and as between them property duly con-
verted must be taken in the state and character in which it is found at
the death of the testator."

As a general rule, however, notwithstanding the decision in
^Browne v. Groombridge, the unauthorized acts of parties will
<- -^ not effect a conversion so as to disappoint the specific legatees
of a person who has become insane after he made his will. See
Taylor v. Taylor, 10 Hare, 475 : there a testator, who was a shop-
keeper, had made a will, bequeathing his leasehold house and shop, and
stock iu trade therein, to his wife (subject to certain trusts, which
failed), and giving his residuary estate in another manner. He became
insane. No commission in lunacy was taken out, but his wife not
being disposed or competent to carrjr on the trade, joined with the
persons whom he had named executors, and also with the residuarj'
legatees in an agreement for the sale of the leasehold premises and
stock in trade therein, for a gross sum to be paid by instalments.

ASHBURNBR V. MAC6UIRE. 629

After this agreement was made, and possession of the property deliv-
ered to the purchaser, the testator died. The Court, in an admistra-
tion suit, approved of the agreement as beneficial to tlie estate, and
directed it to be carried into effect. It was held by Sir W. Page Wood,
V. C, that notwithstanding the agreement for sale, and the transfer of
the possession of the property specifically bequeathed, none of the
parties having any lawful authority to effect such a sale, both the lease-
hold estate and the stock in trade must be taken as unconverted at
the death of the testator, and passed to the specific legatee : see also
Jenkins v Jones, 2 L. R. Eq. 323.

Where personal property specifically bequeathed by a person who
afterwards becomes lunatic, is sold under an order of the Court of
Chancery in Lunacy, which does not preserve the rights of the legatees,
the bequest will be adeemed. See Jones v. Green, 5 L. R. Eq. 555.
Tbere a testator, by will, bequeathed the income of shares in " the
Assam Company " specifically, and bequeathed the shares to his resid-
uary legatee. After the date of the will he was found lunatic ; and by
an order in lunacy the shares were directed to be sold, and the proceeds
were invested in Consols. It was held by Sir G. M. Giffard, V. C,
that as the provisions of the Lunacy Regulation Act (16 & 11 Vict, c
70, s. 2, 119), whereby the rights of owners of property sold by the
order of the Lord Chancellor in Lunacy are preserved, extend only to
land, the gift of income was adeemed by the sale, and fell into the
residue, " There might, no doubt," said his Honor, " have been a direc-
tion accompanying the order, that the proceeds of the shares were to
belong to the same persons as were the owners of the original shares.
But the order contains no such provision. What then is the result ?
All the authorities show that the conversion must be treated

*as a lawful conversion, exactly as if the testator had himself ,

r 3011
converted the shares into Consols." '- -*

If a partner, under articles providing for the renewal of the partner-
ship, specifically bequeath his share of the profits (naming the amount),
and, upon the expiration of the old, new articles are entered into, by
which his share in the profits is altered, the legacy will not be adeemed.
See Baokwell v. Child, Amb. 260, where Lord Hardwicke observed,
" that, where a person in trade makes a provision out of his share for
his family, and afterwards renews the partnership, by which, perhaps,
his interest is varied, yet it is not a revocation ; if it were, it would oc-
casion great confusion." And see Ellis v. Walker, Amb. 309.

Generally, where leaseholds are specifically bequeathed, and the tes-
tator takes a new lease, the bequest will be adeemed, because the re-
newed lease is a different thing : the thing given no longer exists {Ab-
ney v. Miller, 2 Atk. 593 ; Rudstone v. Anderson, 2 Ves. 418 ; Hone
v. Medcraft, 1 Bro. C. C. 261 ; Blatter v. Noton, 16 Ves. 197) ; unless,
perhaps, where the legal estate is in a trustee ( Carle v. Carte, 3 Atk.

630 SPECIFIC LEGACIES. — ADEMPTION.

174; S. C, Amb. 28; Ridgw. Ca. t. Hard. 210; Slatter v. Noton, 16
Ves. 201). So, where a testator, after bequeathing leaseholds by his
■will, makes an assignment of them upon other trusts, it will amount to
an ademption : Cowper v. Mantell, 22 Beav. 223.

But as a testator may undoubtedly dispose of the future, as well as
his present interest in the chattel real, it is a question of intention what
the subject of disposition is — whether only the interest which he had
at the time of executing the will, ov all the interest, though subse-
quently acquired, which he might have at his death in the leaseliold
premises ; that intention is to be collected from the words used by the
testator to express it. Per Lord Eldon, in Slatter v. Noton, 16 Ves.
109. And see Golegrave v. Manby, 6 Madd. 84.

Where an under lessee after his will takes an assignment of the origi-
nal lease, it will amount to an ademption of the bequest of the under
lease (Porter v. Smith, 16 Sim. 251), but he may by a codicil show his
intention of passing his interest as it existed at his death, lb.

And now, by stat. 1 Vict. e. 26, s. 23, it is enacted, " that no convey-
ance or other act, made or done subsequently to the execution of a will
of or relating to any real or personal estate therein comprised, except
an act by which such will shall be revoked as aforesaid, shall prevent
the operation of the will with respect to such estate or interest in such
real or personal estate as the testator shall have power to dispose of bj'
C*^c\91 ^^^^ ^* ^^^ time of his death." *And by sect. 24, "that every
will shall be construed with reference to the real estate and
personal estate comprised in it, to speak and take effect as if it had
been executed immediately before the death of the testator, unless a
contrary intention shall appear by the will."

Where a testator, having given a general legacy, by a subsequent in-
strument makes it specific, the ademption of the specific legacy without
more, will not set up the general legacy : Hertford v. Lowther, T Beav.
lOT.

A specific legacy, as is laid down in the imncipal case, will not be
adeemed by the testator pledging or pawning it, and the legatee will be
entitled to have it redeemed by the executor ; or if he fail to perform
that duty, the legatee is entitled to compensation out of the general
assets, upon the same principle as the devisee of real estate was entitled
to the redemption of the subject of a gift out of the general assets of
the testator; Knight v. Davis, 3 My. & K. 361; Ellis v. Eden, 25
Beav. 482.

Where, however, by a deed of even date with a lease, the lessor
covenanted that the lessee should retain part of each year's rent until
satisfaction of a debt due from the lessor to the lessee ; it was held by
Sir W. Page Wood, V. C, that as between the executors and the speci-
fic legatees, the specific legatees took subject to the whole rent, and

ASHBURNER V. MACGUIRB. 631

that the benefit of the covenant for reduction of rent went to the exe-
cutors : Ledger v. Stanton^ 2 J. & H. 687.

The question by no means unfrequently arises how far a specific lega-
tee of shares is entitled to have calls paid out of the testator's general
estate. The cases upon this subject have been carefully reviewed by
Sir John Romilly, M. R., in his elaborate judgment in Armstrong v.
Burnet, 20 Beav. 424, 437, where it is laid down as the result of the
cases, "that where the interest of the testator in the subject-matter
which he professes to bequeath, is complete, or where it is so treated
and considered by him and by all persons unconnected with it, as in the
case of a share in an insurance company, then the future calls fall on
the legatee and not on the general personal estate ; but where further
payments are required to make perfect the interest which the testator
professes specifically to bequeath, then the general personal estate is
applicable for that purpose :'' Marshall v. Salloway, 5 Sim. 196 ;
Wright v. Warren, 4 De G. & Sm. 367 ; Barry v. Harding, 1 J. & L.
475; Fitzwilliams Y. Kelly, 10 Hare, 266; and see Moffet v. Bates, Z
Sm. & Giff. 468 ; Addams v. Fei'ick, 26 Beav. 384 ; Day v. Day, 1 Drew
& Sm. 261. But see Blount v. Hipkins, 7 Sm. 43; Jacques v. Cham-
bers, 2 Coll. 435 ; 4 Railw. Cas. 499 ; Clive v. Glive, Kay, 600 ; Jones
V. Ogle, 41 L. J. Ch. (N. S.) 633.

*Where shares fully paid up are specifically bequeathed, the r:(:qnq-|
question whether the specific legatee or the residuary estate
is liable to the future calls, depends on whether the calls are actually
made before the testator's death.

In Adams v. Ferick, 26 Beav. 384, a testatrix bequeathed shares in
a company. Before her death, three calls were authorized at stated
intervals, but she died before two of these periods. It was held, by
Sir J. Romilly, M. R., under the circumstances, and from the practice
of the company, that the calls were not to be considered as really made,
until a call-letter had been sent to the shareholders, and that as to
those sent after the testatrix's death, the specific legatee and not the
residuary estate must bear the calls.

The rule that a specific legatee of shares liable to calls must take
them cum onere, does not apply to calls made in the lifetime of a per-
son who is tenant for life of the whole residuary estate (including
the shares) as an entire fund : In re Box, 1 Hem. & Mill. 552.

The true test is whether the shares have or not been separated from
the general residue at the date of the call : In re Box, 1 Hem. & Mill.
552.

A gift of a specific legacy carries with it everything incident to the
subject-matter of the gift. Therefore, as a general rule, bonuses which
accrue due after the death of a testator upon shares specifically be-
queathed by him, belong to the specific legatee (Maclaren v. Stainton,
3 De G. F. & Jo. 202, reversing S. C, 27 Beav. 460), even although

632 SPECIFIC LEGACIES. — ADEMPTION.

they may arise in consequence of the fraudulent retention of moneys
which would have increased the dividends of any former owner, whether
he be the testator or any person taking from him. lb. And see Ed-
mondson v. CrostJnvaite, 34 Beav. 30 ; The Garron Company v. Hun-
ter, 1 Ho. Lo. Sco. App. 362.

But where a bonus on shares has been declared during the life of
the testator, it will not pass to the specific legatee, although payable
after the- death of the testator : Lock v. Venahles, 27 Beav. 598.

So, in De Oendre v. Kent, 4 L. R. Eq. 283, in June, 1865, a dividend
of t per cent, per annum upon certain shares held by the testatrix was
declared payable on the 15th of July, 1865, and the 15th of January,
1866. The dividend was declared out of profits earned previous to the
declaration thereof. The testatrix died on the 31st of December, 1865.
It was held by Sir W. Page Wood, Y. C, that the January dividend
formed part of the corpus of her residuary estate, and did not pass
under a bequest of the annual income of such residuary personal es-
tate. *" This dividend," said his Honor, " which was earned in

r*3041

L J the lifetime of the testatrix, though declared payable at a future

time, was a debt due to her at the time of her death, and formed part
of the corpus of her estate. She has given the tree to the plaintiff;
but as to this particular fruit, it seems to have fallen during her (tes-
tatrix's) lifetime."

A bequest of 2,000L, " insured on my life," with the H. Company,
was held by Sir R. T. Kindersley, V. C, to pass a bonus due at the
testator's death : Roberts v. Edwards, 33 Beav. 259 ; but see Norris v.
Harrison, 2 Madd. 268.

Upon the same principle, the profits of a partnership made during a
conventional period, which was wholly included in the testator's life-
time, will be considered to be capital belonging to the testator's
estate, although these profits were not ascertained till some time after
his death : Browne v. Collins, 12 L. R. Eq. 586, 593. And see Ibbot-
son V Elam, 1 L. R. Eq. 188; 35 Beav. 594.

But where the dividends, although earned during the testator's life,
are not declared until after his death, th«y will be considered as in-
come : Bates v. Mackinley, 31 Beav. 280.

So, likewise, the profits of a jartnership, though principallj' earned
during the testator's life, will he considered as income, if the conven-
tional period at which such profits are to be ascertained terminates
after the testator's death : Ibbotson v. JElam, 1 L. R. Eq. 188 ; Browne
v: Collins, 12 L. R. Eq. 586.

Where a testatrix gave shares in a bank to trustees, to pay the an-
nual proceeds to her daughter for life, and the capital she gave in trust
for her grandchildren, it was held by Sir R. T. Kindersley, V. C, that
the bonuses declared upon the bank shares out of the half-yearly
profits, were to be considered as income, and to belong to the tenant

ASHBURNER V- MACGUIRE. 633

for life ; it would have been otherwise if the bonuses had been paid out
of an accumulation of profits, running over several year : Plumh v.
Neild, 29 L. J. (N. S.) Ch. 618. As to capitalizing profits, see In re
EzeMel Barton's Trust, 5 L. R. Eq. 238.

Wliere a dividend is declared upon shares during the life of a tenant
for life, his representatives will be entitled to it, although it is not paid
until after his death (Wright v. Tuckett,! J. & H. 266), unless the
deed of settlement provides that in such case it shall be paid to some
one else : Olive v. Olive, Kay, fiOO.

Where a testator had bequeathed some railway shares, "■ and all his
right, title, and interest therein," it was held by Lord Langdale, M.
R., that moneys wliich he had paid in advance beyond the calls, passed
to the legatee : Tanner v Tanner, 11 Beav. 69.

Where there is a specific bequest, *parol evidence is admissi- r+oQc-i
ble to show what propertjr there is answering to the description
of it ; but if, on that evidence, it appears that there is property cor-
rectly answering the description, no evidence can be adduced to show
that it was intended to apply to other property : Horwood v. Griffith,
4 De G. Mae. & G. TOO.

A demonstrative legacy is not liable to ademption, although the fund
out of which it is payable be not in existence at the death of the testa-
tor; the primary object is the gift of the legacy: the fund out of
which it is payable is merely of secondary consideration. " Thus," as
observed by Lord Macclesfield, "if a legacy was given to J. S., to be
paid out of such a particular debt, and there should not appear to be
any such debt, or the fund fail, still the legacy ought to be paid, and
the failing of the modus appointed for payment should not defeat the
legacy itself :" Savile v. Blacket, 1 P. Wms. TIT — YM; and see Ellis
V. Walker, Amb. 310; Ohaworth v. Beech, 4 Ves. 565; Gillaume v.
Adderley, 15 Ves. 384; Smith v. Fitzgerald, 8 V. & B. 5 ; Mann v.
Oopeland, 2 Madd. 223 ; Fowler v. Willoughby, 2 S. & S. 354 ; Willox
V. Rhodes, 2 Russ. 452 ; Oampbell v. Graham, 1 Russ. & My. 453 ;
Oreed v. Oreed, 11 C. & F. 509 ; Williams v. Hughes, 24 Beav. 4Y4.

Where, however, a testator shows it to be his intention that a legatee
is to be paid out of a particular fund only, upon its failure he will have
no claim upon the general assets: Ooard v. Holderness, 22 Beav. 391 ;
and see Bristow v. Bristow, 5 Beav. 289.

The confirmation of a will by a codicil will not revive a legacy
adeemed in the interval between the will and the codicil ; Oowper v.
Mantell, 22 Beav. 223 ; and see Montague v. Montague, 15 Beav. 565.

Where the gift of a pecuniary legacy which has been charged upon
land is revoked by a subsequent will or codicil, giving all the person-
alty to another, it will still remain a charge on the real estate, altliough
that would not be so in the case of a specific legacy, which cannot
from its nature be charged upon another fund. Thus, in Kermode v.

634 SPECIFIC LEGACIES. — ADEMPTION.

Macdonald, 3 L. R Ch. App. 584, a testatrix by her will gave to M. G.
" the interest, profits, or produce of 300^ British, or thereabouts, in-
vested by her in the General Steam Navigation Company, and also the
interest of 200L British, for her life, and upon her decease, she gave
" the said principal sum of 500L" to the children of M. G. And she
directed that in case of her personal estate proving insufficient for tlie
payment of the legacies thereinbefore mentioned, then such deficiency
should be made up out of lier real estate by sale or mortgage. And

she bequeathed the *residue of her personal estate to S. G. and
[*306] ^_ ^/

By a codicil, the testatrix gave " all her personal estate " to A. C. M.
It was held by Lord Justice Cairns, affirming the decision of Lord
Romilly, M. R., 1 L. R. Eq. 457, that the whole personal estate passed
by the codicil, and that the legacy of 300L was specific, and was abso-
lutely revolted by the codicil, and that the legacy of 200L was revoked,
so far as the personalty was concerned, but not with regard to the
realty upon which it remained a charge. " The true principles," said
his Lordship, " are stated very clearly by Lord Eldon in Sheddon v.
Goodrich. (8 Ves. 501). If you have a legacy given and charged upon
two funds — and it makes no difference whether it is charged primarily
or secondarily upon either — then if you find in a codicil a revocation
of the legacy, of course the legacy is gone ; but if you have such a
charge, and then by a codicil or a subsequent part of a will a revoca-
tion of the gift of one of these funds, that does not operate as a revo-
cation of the legacy, which remains unrevoked, and charged upon the
other fund. It has been said that a legacy is a gift pro tanto of perso-
nal estate, and that if you find in a codicil a gift of the whole personal
estate, that revokes the gift of the legacy. But that argument seems
to assume the whole question in this case. If the will contained no-
thing but a ^ift of a pecuniary legacy, then the codicil would have re-
voked the gift of the legacy ; but the will contains not merely a gift of
a pecuniary legacy — it also contains a charge on the real estate ; and
the codicil operates merely on the personal estate."

Abatement of Legacies.'] — As has been before shown, in the adminis-
tration of assets, general legacies are not applicable in payment of
debts, until after the general personal estate, real estates devised for
payment of debts, real estates descended, and real estates charged with
payment of debts, have been exhausted; after which general legacies,
in prioritj' of specific legacies are applicable ; or, if the whole amount
of them is not wanted for that purpose, they must abate among them-
selves pro rata, ante, p. ISt, 138.

A legacy at first sight appearing to be residuary may be shown by
the testator's intention to be specific, in which case it will only abate
with other specific legacies. An instance of this is to be found in the
case of Page v. Leapingwell, 18 Yes. 463 ; there a testator devised land

ASHBURNBR V. MACGUIRE. 635

upon trust to sell, but not for less than 10,000Z., and gave legacies there-
out amounting to ISQOl., and " the overplus monies," to A. & B. The
estate sold for less than YOOOL; Sir W. Grant, M. R'., held that the
*other legatees ought to abate equally with A. and B., his Honor
being of opinion, that the inference to be drawn from the ex- L -■
pressions in the will was, that the testator did not mean by the word
" overplus " what it usually imports, viz., whatever shall turn out to be
the overplus ; but that he was contemplating a certain overplus, and
was making his disposition accordingly. " I conceive," he added, "the
true intention to have been that these persons should take as specific
legatees ; and therefore they must abate among themselves." See also
Hewitt V. George, 18 Beav. 522 ; Hunt v. Berkely, Mose. 47 ; Laurie v.
Glutton, 15 Beav. 65 ; Wright v. Weston, 26 Beav. 429 ; Duncan v. Dun-
can, 27 Beav. 386 ; Haslewood v. Green, 28 Beav. 1 ; Elwes v. Causton,
30 Beav. 554 ; In re Jeffery^s Trust, 2 L. R. Eq. 68 ; Walpole v. Ap-
thorp, 4 L. R. Eq. 37 ; Miller v. Huddlestone, 6 L. R. Eq. 65.

Where, however, a testator neither knows, nor assumes to know, the
amount of a fund, and after bequeathing certain portions thereof, he
makes a bequest of the residue, the latter must be applied first in pay-
ment of debts. See Bead v. Strangeways, 14 Beav. 139 ; ■Williams v.
Armstrong, 12 Ir. Eq. Rep. 356 ; Vivian v. Mortlock, 21 Beav. 252.
And see Garter v. Taggart, 16 Sim. 423 ; Loscombe v. Wintringham,
12 Beav. 46 ; Booth v. Alington, 6 De G. Mac. & G. 613 ; Greenwood v.
Jemmett, 26 Beav. 479 ; Harley v. Moon, 1 Drew. & Sm. 623 ; Baker v.
Farmer, 3 L. R. Ch. App. 537, reversing S. G., 4 L. R. Eq. 382.

In Petre v. Fetre, 14 Beav. 197, where a testator having a power of
appointment by will over 7100L 3^ per cents., appointed 5000L, part of
the trust funds to A. and 500Z. to B., and the residue to his son. The
stock having upon the appointment become liable in equity to the pay-
ment of debts, it was held by Sir John Romilly, M. R., that the residue
was first applicable towards their payment. " The authority," said his
Honor, " of Page v. Leapingwell applies where the testator disposes of
an estate which he assumes will produce a given sum, or with an
ascertained fund, in which case it is indifferent, whether after he has
given certain portions, he specifies the remainder by stating its amount
or by comprising it under the term ' residue.' But in this case, so far
from knowing the amount of the fund, the testator could have no con-
ception of it ; for it was impossible to ascertain the amount until the
fund had been realised by a sale, and the charges on it known. If in
this ease it appeared that the testator thought he was dealing with a
sum of 7100L sterling, and he had divided it into different proportions,
the loss would then fall on all the persons interested in proportion
*to their shares, although the last portions were called ' the
residue ' but that is not the case here." [*308]

The decision, however, of Petre v. Petre seems to be scarcely eonsis-

636 SPECIFIC LEGACIES. ADEMPTION.

tent with In re Jeffry's Trust, 2 L. R. Eq. 68 : there a testator
bequeathed as follows: "The pink coupons in the pigeon-hole are for
3666Z., send those to Irving and Slade, 1 Copthall Court, and he is to
pay to Ellen Tomkins 2500Z., and the rest for Archdeacon Giles for
Bess and Eddie." It was held by Sir W. Page Wood, V. C, that the
case fell within the decision in Page v. Leapingwell, and that it was
plain that it was a specific gift of the coupons of 2500L to A. and the
rest to B.

A question sometimes arises between pecuniary and residuary lega-
tees, where there has been a devastavit by the executor, whether the
pecuniary legatees ought not to share the loss proportionably with the
residuary legatees. The better opinion, in opposition to that of Lord
Cowper, in Dyose v. Dyose, 1 P. Wms. 305, is, that they ought not.
See Fonnereau v. Poyntz, 1 Bro. C. C. 4t8 ; Humphreys v. Humphreys,
2 Cox, 184 ; Page v. Leapingwell, 18 Ves. 466 ; and Wilmott v. Jenkins,
1 Beav. 501 ; In re Lyne's Estate ; 8 L. R. Eq. 482.

But the case may be varied by the dealings of the pecuniary legatees
with the executor as by suflTering their legacies to remain in his hands,
and receiving interest thereon, thus making him their debtor ; for then
they may be considered to have waived their priority under the will,
and will only be entitled to have what is left divided between them and
the residuarj' legatees, in the proportion of the amount of their legacies,
and of the residue, as it was computed at the death of the testator, with
interest on each: Ex parte Chadwin, 3 Swanst. 380. See and consider
Mallory v. French, 11 Ir. Eq. Rep. 376. In other words, " If all the
legatees have consented that they will have the fund out of which
their legacies are payable appropriated as a specific sum, it is the same
as if the testator had appropriated it ; and if any part of the fund is
lost they must all suffer rateably. But unless there is this common
consent, we must look to the intention of the testator and to nothing
afterwards." Per Lord Justice Wood, in Baker v. Farmer, 3 L. R.
Ch. App. 541. Where one of several residuary legatees, or next of kin,
has received his share of the estate of a testator or an intestate, the
others cannot call upon him to refund if the estate is subsequently
wasted {Peterson v. Peterson, 3 L. R. Eq. Ill, 114) ; but if part of the
estate had been previously wasted, the person so paid can be called
upon to refund, the rule being that what is available when one is paid,
should be equally divisible among all. lb.
^o(iQ-| *But where one residuary legatee calls upon another to re-
fund, upon the ground of being overpaid, the burden of proof
lies upon the person requiring the money to be refunded, to show that
the payment was made in excess. lb.

Where a legacy is charged on real estate should the personal estate
be insufficient to pay it, if the personal estate was sufficient for that
purpose at the time of the testator's death, and became inadequate in

ASHBURNER V. MACGUIRB. 637

consequence of a devastavit, the legaej' will not be a charge on the real
estate : Richardson v. Morton^ 13 L. R. Eq. 123.

As a rule, general legacies and annuities stand upon an equal footing,
and upon a deficiency of assets they must abate rateably, and the onus
lies on anj^ legatee or annuitant seeking priority to make out clearly
and conclusively that such priority was intended : Miller v. Huddle-
done, 8 Mac. & G. 513 ; Thwaites v. Foreman, 1 Coll. 409 ; Brown v.
Brown, 1 Keen. 215.

In Coore v. Todd, 1 De G. Mac. & G. 520, a testator by his will de-
vised real estate to trustees in fee in trust out of the rents to pay an
annuity to A. B. until he attained twenty-five, when he was to be enti-
tled to the possession of the estate, and an annuity of AOOl. a year to
C. D. for life, and an annuity of 150L for the maintenance during mi-
nority of an infant tenant in tail : and " without prejudice to the trusts
aforesaid," and " to any jointure to be created under the power therein-
after contained," to pay the surplus rent to the mother of A. B., until
he should be entitled to the possession of the estate; and " subject to
the trusts aforesaid," the trustees were to hold the estate in trust for
A. B. for life, with remainder to his eldest son in tail, with power to
A. B. to appoint a jointure to any wife, with the usual powers of dis-
tress and entry, to take eflTect immediately after his decease. A. B.
having appointed the jointure died, leaving his widow, who gave birth
to a posthumous son, the infant tenant in tail. The income of the estate
proving deficient — it was held by Lord Cranworth, C, that the annuity
of 400?., the jointure and the annuity for the maintenance of the infant
tenant in tail must abate pari passu, but that the apportionment was not
to be retrospective, so as to affect tlie amount received by C. D. previ-
ously to the birth of the tenant in tail.

However, where a general legacy is given for any valuable considera-
tion, as the relinquishment of dower by a widow {Burridge v. Bradyl,
1 P. Wms. 126 ; Blower v. Morrett, 2 Ves. 420 ; Davenhill v. Fletcher,
Amb. 244; Heath v. Bendy, 1 Russ. 543 ; Norcott v. Gordon, 14 Sim.
258 ; Stahlschmidt v. Lett, 1 Sm. & G. 421 ; Bell v. Bell, 6 I. R. Eq.
239), or of a debt actually due {Dames v. *Bush,l Younge, r^n-ir.-^
341), it will be entitled to priority over all other merely volun-
tary legacies. But in Davies v. Bush, 1 Younge, 341, where a testator
has given a legacy to a person, on condition of his executing a general
release of all claims which the legatee had on the testator. Lord L3^nd-
hurst was of oj)inion, that, if there was not a debt actuallj' due to the
legatee, he could not be considered as a purchaser of the legacy, so as to
avoid an abatement with the other legatees. If no debt were due, and
the release were required merely for the sake of peace, then unquestion-
ably the legatee could not be treated as a purchaser.
An annuity charged on the personal estate by a testator, being a gen-

638 SPECIFIC LEGACIES. — ADEMPTION.

eral legacy, on a deficiency of assets abates proportionably with the
general legacies.

In such cases a value is put upon the annuity, and then a proijortional
abatement is made between the annuity and the legacies, and then the
annuitant, although it is only a life annuity, or his representatives, if
he be dead, is entitled at once to receive a sum equal in amount to the
valuation so abated : Garr v. Ingleby, 1 De G. & Sm. 362 ; Long v.
Hughes, lb. 304; Wroughton v. Colquhoun, lb. 357 ; and see " Fonns
of Decrees" in those cases.

But if annuities are given as gifts of specific interests in the real es-
tate, they will not abate with legacies charged on the real estate : Greed
V. Greed, 11 C. & F. 491, overruling the decision of Sugden, C, in 1
Dr. & War. 416.

As annuities on a deficiency of assets abate with legacies, so they
abate among themselves : Innes v. Mitchell, 1 Ph. T16.

When the corpus of an estate charged with annuities is insufficient to
pay the arrears, it will be divided between the annuitants in proportion
to the value of their respective annuities : Wroughton v. Golqiihoun, 1
De Gex. & Sm. 351 ; Todd v. Beilby, 21 Beav. 356.

If all the annuitants are living at the period of division, the value
must be ascertained as at the death of the testator : Todd v. Beilby, 21
Beav. 353.

If all the annuitants are dead, the arrears of their annuities must be
ascertained, and the fund divided in the proportion of those arrears :
Todd V. Beilby, 21 Beav. 353, 356.

It some are dead, and the others living, the value as to the former
will be taken at the amount of their arrears, and as to the latter, at the
amount of their arrears, added to the calculated value of the future pay-
ments : Todd V. Beilby, 21 Beav. 353 ; Heath v. Nugent, 29 Beav. 226,
and it is immaterial that an annuity is reversionary, and falls into pos-
session after the testator's death : Foils v. Smith, 8 L. R. Eq. 683.

*In Innes v. Mitchell, 2 Ph. 346, a testator gave an annuity
'- -^ of 300Z. to his three daughters, and the survivors and survivor,
with a gift over to the last survivor, of the sum set apart to answer the
annuity. After the death of one of the daughters, the fund set apart
was lost by the misconduct of the trustee, and the annuity remained
unpaid for the rest of the lives of the other two, but after their deaths
a sum of monejf, forming a part of the residue, but of less amount tlian
the original fund, became available. It was held by Lord Cottenham,
C, reversing the decision of Lord Lindhurst, C. (1 Ph. 110), that, as
the last survivor had no opportunity of receiving the capital during
her life, the annuity was to be considered as continuing for her bene-
fit, after her sister's death until her own, and therefore, that she was
entitled to an apportionment, in respect of the arrears of such annuity
during that interval, as well as in respect of the principal fund.

ASHBURNER V. MACGUIRB. 639

A bequest of an annuity to an executor for his trouble in the conduct
and management of the testator's affairs will not be entitled to priority
over other legacies: Duncan v. Watts, 16 Beav. 204.

It may be here remarked, that by the Dower Act (3 & 4 Will. 4, c.
105, s. 12), it is expressly enacted, "that nothing in the act contained
shall interfere with any rule of equity, or of any eccelesiastical court,
by which legacies bequeathed to widows in satisfaction of dower aye
entitled to priority over other legacies."

Where the testator's intention is clearly to prefer one legatee to
another, preference will of course be given (Lewin v. Lewin, 2 Ves.
415; Marsh v. Evans, 1 P. Wms. 668 ; Attorney- General v. Robins, 2
P. Wms. 23; Beeston v. Booth, 4 Madd. 161, 110; Stammers v.
Halliley, 12 Sim. 42 ; Brown v. Brown, 1 Kee. 275 ; Weir v. Ghomley,
1 Ir. Ch. Rep. 295 ; Spong v. Spong, 3 Bligh, X. S. 84 ; Sugd. Prop.
422; Dyer v. Bessonett, 4 Ir. Ch. Rep. 382 ; Haynes v. Haynes, 3 De
G. Mae. & G. 590) ; but not where it is at all doubtful whether he in-
tended to give such preference. See Blower v. Morret, 2 Ves. 421 ;
Beeston v. Booth, 4 Madd. 161 ; Eavestaffe v. Austin, 19 Beav. 591 ;
and see Coare v. Tood, 23 Beav. 92 ; Campbell v. M' Conaghey, 6 I. R.
Eq. 20.

Specific legacies, as has been shown, are not applicable in the ad-
ministration of assets in payment of debts, until after general legacies
have been exhausted (ante, p. 138), nor are demonstrative legacies, that
is to say, legacies payable out of a particular fund {Roberts v. Pocock
4 Ves. 150; Lambert v. Lambert, 11 Ves. 607 ; Acton v. Acton, 1 Mer.
178) ; except when they become general legacies by failure of the fund.
Mullins V. Smith, 1 Drew. & Sm. *210 ; and persons to whom
specific and demonstrative legacies are bequeathed, can compel '- -^
devisees of land not charged with debt, to abate or contribute with
them, pro rata, toward their payment. (See ante, p. 139 ; Roberts v.
Pocock, 4 Ves. 160 ; Long v. Short, 1 P. Wms. 403 ; Tombs v. Roch, 2
Coll. 490 ;) and although a specific legacy be charged with debts and
legacies, the general undisposed-of residue will be first applicable :
Hewett V. Snare, 1 De G. & S. 333 ; ante, vol. 1, p. 655.

As to the lapse of legacies, see Elliot v. Davenport, Lead. Cas. Real
Prop. 803, 2nd ed. and note.

■ Time of Payment of Legacies and Interest."} — As a general rule
interest is payable on legacies from the time when tliey become actu-
ally due.

With regard to specific legacies, they are considered as severed from
the bulk of the testator's property by the operation of the will from the
death of the testator, and are specifically appropriated, with their in-
crease and emolument, for the benefit of the legatee from that period ;
so that interest is computed on them from the death of the testator ;
and it is immaterial whether the enjoyment of the principal is post-

6-iO SPECIFIC LEGACIES . — A DEMPTION.

poned by the testator or not : 2 Rop. Leg. 1250, 4th edit. Thus, where
there is a specific legacy of stock, the legatee will be entitled to the
dividends from the death of the testator {Barrington v. TriMram, 6
Ves. 345 ; see also Olive w. Olive, K&y, 600), although it may have been
directed "to be paid within twelve calendar months " after the testator's
decease : Bristow v. Bristow, 5 Beav. 289.

A demonstrative legacy does not carry interest from the testator's
death : Mullins v. Smith, 1 Drew. & Sm. 210.

If the thing specifically bequeathed were reversionary, the legatee
would only be entitled to it upon the reversion falling into possession.

A demontrative legacy, where the property out of which it is payable
is reversionary, is only payable where the reversion falls in : Earle v.
Bellingham, 24 Beav. 448.

With regard to general legacies, where the testator has fixed no time
for their payment {Ohild v. ElUwortli, 2 De G. Mac. & G. 6^9), they
will not be payable until a year after his decease; they will therefore,
as a general rule, carry interest only from that time, and it will be due
even though the payment of the legacy be impracticable ( Wood v.
Fenoyre, 13 Ves. 383, 334; Gibson v. Bott, 1 Ves. 96) ; and whether
the assets are productive or not (Pearson v. Pearson, IS. & L. 10).
So where there is a general legacy of long annuities, the legatee will
not be entitled to the dividends accruing before the expiration of a year
from the testator's decease: Oollyer v. Ashburner, 2 De G. & Sm. 404.
*A case will, however, be taken out of the general rule, where
L -I a clear int'ention is shown that legacies are not to be paid until
some time after the expiration of one year from the testator's decease.
See Lord v. Lord, 2 L. R. Ch. App. t82. There a testatrix, having a
general power of appointment over property which was the subject of
pending litigation, appointed it by will to J. Lord upon trust, " so soon
as proceedings in law and equity should be terminated, and the same
should come into his possession,'' to pay certain legacies, and as to the
residue upon other trusts. It was held, by the Lord Justices, affirm-
ing the decision of Lord Romilly, M. R., that the trust to pay the legal
cies did not arise, and, consequentlj^, that the legacies did not carry
interest, until the litigation ended, and the property came into the
hands of J. Lord, which was not until more than eighteen j-ears after
the death of the testatrix.

A mere reference by the testator to the tirhe when his personal estate
shall be received, will not be a sufficiently clear indication of his inten-
tion, that the legacy is not to be paid at, and, consequentljr, that the
interest is not to run from, such time. See Wood v. Penoyre, 13 Ves.
334 : there the testator gave a legacy of 900Z., to be paid out of money
due on an Irish mortgage, " when the same shall be recovered." Sir
W. Grant, M. R., held that, the words "when recovered" did not sus-
pend or postpone the right to interest.

ASHBURNER V. MACGUIRE. 641

Although the testator directs legacies to be invested for legatees at a
period beyond the expiration of one year from his own death, neverthe-
less, if the direction for investment is for the convenience of the estate,
interest will be paid to the legatees upon the legacies, from a year after
the testator's death, if the estate is sufficient then to pay tljem. See
Varley v. Winn, 2 K. & J. 'TOO ; there the testator after bequeathing
legacies of 2000Lto each of his daughters to be paid to them four years
after his decease, the interest to be computed from the end of one year
after his decease, and after giving a further sum of 6000/. to each of his
daughters, added, " which said sum of 6000L to each of them shall be
invested in real or government securities by mjf executors, within seven
years, to be computed from the time of my decease in trust for them
or their children ; but if any of my said daughters should die leaving
no issue, then the share or portion so invested shall be divided amongst
those who have issue, share and share alike, as they arrive at the age of
twenty-one years of age ; and if only one, the whole to go to that one
only." It was held by Sir W. Page Wood, V. C, that interest was
payable on the legacies of 6000L from a year after the *testa-
tor's death, the estate being sufficient to pay them at the testa- '- -■
tor's death ; See 1 American Leading Cases, 629, 5 ed.

Where, however, the Court decrees a legacy to be a satisfaction for a
debt (Clark v. Seivell, 3 Atlj. 99) ; or where a person charges his real
estate with the debts of another man (Shirt v. Westby, 16 Ves. 393) ;
interest will be given from the death, not merely from a year after the
death, of the testator.

Where a testator directs a legacy to be paid before the expiration of
twelve months from his death, interest will be due from the time when
payment was directed to be made : Lord Londeshorough v. Somerville,
19 Beav. 295.

Another exception " is the case of a legacy by a father or mother to
a legitimate child, whether by way of portion or not. If it is given
generally, the Court will give interest from the death, to create a pro-
vision for its maintenance " (Beckford v. Tobin, 1 Ves. 310) ; or where
a person puts himselt in loco parentis (Wilson v. Maddison, 2 Y. & C.
C. C. 3'12) ; but the exception is not extended to an adult child (Haven
Y.Waite, 1 Swanst. 553); norwhere the parent has provided maintenance
for his child though not adult out of another fund (l7i re Souse's Estate,
9 Hare, 649 ; Donovan v. Needham, 9 Beav. 164) ; "nor has the Court
extended it to a natural child, for two reasons : first, from the rule of
law considering a natural child as no relation, — having, indeed, no civil
blood: secondly, that it is not fit for a Court of Justice to give the
same countenance to such children as in the case of legitimate children "
(Beckford v. Tobin, 1 Ves. 310 ; Lowndes v. Lowndes, 15 Ves. 301);
nor has the exception been extended to a wife (Lowndes v. Loivndes, 15
Ves. 301 ; Freeman v. Simpson, 6 Sim. *lb ; 3Iilltown v. Trench, 4 C.

VOL. II 41

642 SPECIFIC LESACIES . — ADEMPTION.

& F. 216 ; 11 Bligh, N. S. 1) ; but where there is a direction to apply a
competent part of the interest on a legacy for the maintenance of a
natural child {Newman v. Bateson, 3 Swanst. 689; Bowling v. Tyrell,
2 Russ. & My. 343), or of a stranger, even where the legacy is contin-
gent (In re Richards, 8 L. R. Eq. 119), interest will be payable from
the testator's death ; 1 American Leading Cases, 680, 5 ed.

Where an annuity is given by will, it will commence immediately
from the testator's death, and consequently the first jjayment is at the
end of a year from his death (Gibson v. Bott, 1 Yes. 96). But Lord
Eldon in that case takes a distinction between an annuity and a legacy
for life, for he says, that " if a legacy is given for life, with remainder
over, no interest is due till the end of two years. It is only interest of
the legacy, and till the legacy is payable, there is no fund to produce
interest;" and he considered it doubtful whether a sum of money
*directed to be placed out to produce an annuity, is to be con-
L -I sidered as a legacy payable at the end of a year, or as an an-
nuity paj'able from the death : see Gibson v. Botf, 1 Ves. 91 ; 1 Ameri-
can Leading Cases, 630, 5 ed ; Eyre v. Golding, 5 Binney, 412.

But it seems that a person having a life interest in the residue of
personalty, is entitled to the proceeds from the death of the testator;
or, if it ought to be converted, to such income as it would have pro-
duced if converted (Angerstein v. Martin,!!. & R. 232; Sewitty. Mor-
ris, T. & R. 241; La Terriere v. Bulmer, 2 Sim. 18; Dimes v. Scott,
4 Russ. 195 ; Douglas v. Congreve, 1 Kee. 410; Caldecott y. Caldecott,
1 Y. & C. C. C. 322; Taylor v. Clarke, Hare, 161 ; but see Taylor v.
Bibbert, 1 J. & W. 308 ; Stotl v. Eollingworth, 3 Madd. 161 : Griffith
V. Morrison, 1 J. & W. 311, n. ; Amphlett v. Parke, 1 Sim. 215 ; Yates
V. Yates, 28 Beav. 631 ; Webb v. Pollock, 20 W. R. (Y. C. M.) 196.
See Howe v. Earl of Dartmouth, and note, post, p. 320). But the ten-
ant for life will not be entitled to have the income arising from what is
wanted for the payment of debts, because that never becomes residue
in any way. See Allhusen v. Whiiiell, 4 L. R. Eq. 295, 302, where Sir
W. Page Wood observes, " the authorities clearly show that supposing
a testator has a large sum, say 50,000Z or 60,000Z.,in the funds, and has
only 10,000Z. worth of debts, the executors will be justified, as between
themselves and the whole body of persons interested in the estate, in
dealing with it as they think best in the administration. But the exe- '
cutors, when they have dealt with the estate, will be taken by the Court
as having applied in payment of debts such portion of the fund as,
together with the income of that portion for one year, was necessary for
the iDayment of the debts."

A gift for life, is specific, of things " quae ipso usu consumuntur," is
a gift of the property, and there cannot be a limitation over after a life
interest in such articles (Eandall v. Russell, 3 Mer. 195). Thus it was
laid down by Sir J. L. Knight-Bruce, Y. C, that a gift of " wine, spirits,

ASHBUBNER V. MACGUIRE. 643

and hay," to a woman so long as she could be living unmarried, is a
gift of the absolute interest. See also Andrew v. Andreiv, 1 Coll. 690,
691, 692 ; Twining v. Powell, 2 Coll. 262. But this, it seems, will not
be the case with regard to consumable articles constituting the testa-
tor's stock in trade. Thus in Phillips v. Seal, 32 Beav. 25, a wine
merchant, possessed of a large stock of wine, by his will gave all his
household goods, and everything he might die fiossessed of, to his wife
for life, and from and after her decease he bequeathed the whole of his
effects that might " be then remaining " to his daughter. Lord Rom-
illy,' M. R., held, that the widow was entitled to all the wine in the
house, but not to that used *forthe purpose of trade. " Wine,"
said his Lordship, " is one of those things which ipsu usu con- ^ -■
sumuntur, and if the testator was keeping the wine for his own con-
sumption, and not for the purpose of sale, it belongs to the widow.
This must be ascertained." See Howe v. Earl of Dartmouth, notes
post, 686 ; Barnett v. Lester, 53 Illinois, 325.

So, likewise, in Cockayne v. Harrison, 13 L. R. Eq. 433, a farmer,
after giving to his wife furniture to furnish a comfortable room at his
farm at S., bequeathed to her his farming stock at S. during
her widowhood, and after her marrjdng again, or her decease, he
gave the same to trustees for sale. The stock consisted, amongst
other things, of cattle and stacks of hay. The widow having married
again, it was held by Lord Romilly, M. R., that the widow was only
entitled to a life interest in the farming stock. " I think," said his
Lordship, " that the distinction which I took in Phillips v Beal (32
Beav. 25), is sound, and that I ought to follow that decision. Here
is a gift for life of farming stock, which is made in connection with a
gift for life of the business, the stock being necessary to carry on the
business ; and I think that under these circumstances the legatee is
bound to keep iip the stock, and further, that if for any reason it is
sold oflf and the business discontinued, she only takes a life interest in
the proceeds. Where there is no trade, I am disposed to adopt the
view taken in Randall v. Bussell, 3 Mer. 190, and to hold that |lie lega-
tee takes an absolute interest." Lord Hatherley, C, when Yice-Chan-
cellor, arrived at the same conclusion in GrouesY. Wright, 2 K. & J. 847,
with respect to a gift of farming stock and implements of husbandry for
life ; but the ground his Lordship proceeded on was, that farming stock
and implements of husbandry were not things quae ipso uso consumun-
tur. Yice-Chancellor Stuart, however, in Bryant v. Easterson, 5 Jur.
(N. S.) 166, held that a legatee for life of farming stock, consisting,
among other things, or growing crops, oxen, sheep, pigs, and horses,
took such stock absoluely, as things quse ipso uso consumuntur, and
that they did not therefore go to the legatees in remainder. This case,
however, appears to be opposed to the modern current of authorities.

Where a man's wearing apparel was given to his widow for life, with

644 SPECIFIC LEGACIES. — ADEMPTION. •

remainder over, it was lield by Sir W. Page Wood, V. C, tliat the
wearing a^Dparel did not vest in the widow absolutely as things quae ipso
usu consumuntur, and that the sale thereof, and the payment of the in-
come to the widow for her life, was reasonable. Be Hall's Will, 1 Jur.
N. S. 9U.

If, however, consumable articles are included in a residnary bequest
for life, then thej^ must be sold, and the interest only enjoyed by the
tenant for life : Randall v. Russell, 3 Mer. 195. And see *Sowe
i*^^'^^ V. Earl of Dartmouth, post, 616, 686.

Where a legacy is charged on real property, and no time is fixed for
its paj^ment, interest will be due from the testator's death : Maxwell v.
Wettenhall, 2 P. Wms. 26 ; Stonehouse v. Evelyn, 3 P. Wms. 254 ;
Spurway v. Glynn, 2 Ves. 483.

Where the testator has fixed a time for payment of a legacy, as, for
instance, on the legatees's attaining a certain age, according to the
general rule it will not, although it be vested, carry interest until the
arrival of that time {HeatJi v. Perry, 3 Atk. 101 ; Tyrrell v. Tyrrell,
4 Ves. 1 ; and see Thomas v. Attorney-General, 2 Y. & 0. Exch. Ca.
525) ; except where a legacy is left by a parent or a person in loco
parentis to an infant, in which case, whether the legacy be vested' or
contingent, interest on the legacy will be allowed as maintenance from
the death of the testator (Acherley v. Wheeler, 1 P. Wms. 783 ; Sill v.
Hill, 3 V. B. 183 ; Mills v. Roharts, 1 Russ. & My. 555 ; Leslie v.
Leslie, L. & Gr. t. Sugd. 1 ; Rodgers v. Soutton, 2 Kee, 598 ; Wilson v.
Maddison, 2 Y. & C. C. C. 312 ; Russell v. Dickson, 2 D. & War. 133 ;
Harvey v. Harvey, 2 P. Wms. 21 ; Incledon v. Northcote, 3 Atk. 438;
Chambers v. Godwin 11 Yes. 2; Brown v. Temperley, 3 Russ. 263);
or if the child be en ventre sa mere, from its birth (Rawlins
V. Rawlins, 2 Cox, 425) ; and although there be a direction for ac-
cumulation (Mole V. Mole, 1 Dick 310; McDermott v. Kealy, 3 Euss.
264, n.) ; but whether the whole or part of the interest be allowed for
maintenance, will be at the discretion of the Court.

" In tjje instance of a child," says I^ord Alvanley, " the Court does
not postpone the payment of interest till a year after the death of the
parent ; for the Court considers the parent to be under an obligation to
provide, not only a future, but a present maintenance for his child ;
and therefore holds, that he could have postponed the time of payment
only from the incapacity of the child to receive, but that he never
meant to deprive him of the fruit of the legacy; which fruit is the only
maintenance, and which maintenance he was bound to provide : Grickett
V. Dolby, 3 Ves. 13 ; 1 American Leading Cases, 630, 5 ed.

Where, however, a specific sum is given for maintenance, although it
be less than the interest, no more can in general be claimed (Hearle v.
Greenbank,S Atk. Ill; Long v. Long, 3 Ves. 286, n.) ; unless, per-
haps, it is clearly insufficient, and the legacy is vested (Aynsworth v.

ASHBURNER V. MACGUIRE. 645

Pratchett, 13 Ves. 321 ; Turner v. Turner, 4 Sim. 430). Nor -will
maintenance be allowed out of a legacy wBere another fund is provided
for that purpose. " It is clear," says Lord Kenyon, M. R., " that
where other funds are provided for the maintenance, * then, if r,|:o-|Q-i
the legacy be payable at a future day, it shall not carry interest
until the day of payment comes, as in the case of a legacy to a perfect
stranger:" Wynch v. Wynch, I Cox, 433, 434 ; Wall y. Wall, 15 Sim.
513 ; Donovan v. Needham, 9 Beav. 164; Budge v. Winnall, 12 Beav.
35T ; In re Souse's Estate, 9 Hare, 649.

The exception to the general rule will not be extended to other rela-
tives than children, such as grandchildren, or nephews, or nieces, unless
the testator has put himself in loco parentis : Houghton v. Harrison, 2
Atk. 330 ; Butler v. Freeman, 3 Atk. 58 ; Descrambes v. Tomkins, 4
Bro. C. C. 149, n. ; 1 Cox, 133 ; Festing v. Allen, 5 Hare, 5Y9 ; Grickett
V. Dolby, 3 Yes. 10 ; 1 American Leading Cases, 630.

But as in the case of a paient or person in loco x^arentis, interest is
payable upon the presumed intention of the testator, so it is payable
in the case of a future legacy given by a person not standing in that
relation to the legatee, if, from the terms of the will, it appears to have
been his intention that the legatee should receive maintenance out of
the legacy (see Leslie v.- Leslie, L. & G. t. Sugd. 1 ; Baddy v. Dawes,
1 Kee. 362). And where a legacy is directed' to be paid at a future
time, with interest, the interest will be payable from the end of the
year after the testator's death : Knight v. Knight, 2 S. & S. 490, 492.

The rate of interest, whether the legacy be or not charged on real
estate, is usually 4L per cent. ( Wood v. Bryant, 2 Atk. 523 ; Treves v.
Townshend, 1 Bro. O: 0. 386 ; Sittvell v. Bernard, 6 Ves. 543) ; al-
though the testator may have resided, or had money invested, in a
country where a higher rate of interest is allowed (Malcolm v. Martin ,
3 Bro. C. C. 50 ; Stapleton v. Comvay, 1 Ves. 42"! ; Burke v. Ricketts,
10 Ves. 330). Lord Alvanley has observed, that the ground on which
the Court gives 4L per cent, interest in such cases is " that the fund is
supposed, in the course of the year, to come into the hands of the exe-
cutor, and that the executor can make 4Z. per cent, of it here. If it
were made out, that the fund was abroad, and greater interest made, it
might be otherwise " {Malcolm v. Martin, 3 Bro. C. C. 54.) Unless
compound interest be directed by the will to be paid on legacies {Arnold
Vi Arnold, 2 My. & K. 365), interest will be computed on the principal,
and not on the principal and intei-est {Perkyns v. Baynton, 1 Bro. C. C.
5H; Crackett v. Bethune, 1 J. & W. 586); except under particular
circumstances, as where an executor neglects to obey an express direc-
tion to accumulate : Raphael v. Boehm, 11 Ves. 92 ; 13 Ves. 590 ; Dorn-
ford V. Dornford, 12 Ves. 121.

As to whether a legacy or annuity is given free from legacy

646

SPECIFIC LEGACIES. — ADEMPTIOK.

r*319n *duty} see Haynes v. Ilaynes, 3 De Gr. M. & Gr. 590 ; Harris v.
Burton, 11 Sm. 161 ; Banks v. Braithwaite, 32 L. J. (Ch.) 35 ;
In re Coles' Will, 8 L. R. Eq. 2Y1.

Currency in which legacies are payable.] — In the absence of the in-
tention of the testator appearing upon the will, which would of course
he complied with (Lansdowne v. Lansdowne, 2 Bligh. 91), it wUl be
presumed that a testator intended legatees to be paid in the cuiTency of
the country in which he resided, even though he may charge lands in
another country with their payment in which the currency is different.
See Saunders v. Brake, 2 Atk. '466 ; Pierson v. Garnet, 2 Bro. C. C.
28 ; Malcolm v. Martin, 3 Bro. C. C. 50 ; Lansdowne v. Lansdowne, 2
Bligh. 92 ; Phiijps v. Lord Anglesea, 5 Vin. Abr. 208, pi. 8 ; 1 P. Wms.
966 ; Wallis v. Brightwell, 2 P. Wms. 88, 89 ; Noel v. Rochfort, 10
Bligh. N. S. 483 ; 4 C. & F. 158. And a legacy in a foreign country
and foreign coin, as of sicca rupees, by a will in India, if paid by re-
mittance to this country, the payment must be according to the current
value of the rupee in India, without regard to the exchange or the ex-
pense of remittance: Cockerell v. Barber, 16 Ves. 461; Campbell v.
Graham, 1 Russ. & My. 453; Yates v. Maddan, 16 Sim. 613; See 1
American Leading Cases, 645, 5 ed.

Strictly speaking, a bequest of
that which is designated as being
of a particular kind is specific,
whether the testator does or does
not refer to any particular thing as
the subject of the gift, while a be-
quest of a particular thing may
appropriately be termed individual,
although the kind is incidentally
mentioned or described. In the
technical phraseology of the law,
however, legacies of the former
class are called general, those of
the latter, specific. Thus a bequest
of " a horse " is a general legacy, a
bequest of " Flying Childers " or
" Eclipse " a specific legacy.

That is consequently a specific
legacy which confers a right to a
particular thing or things, as dis-
tinguished from all others. A be-
quest of the testator's horse, or of
all his horses, or of the stock

" standing in his name" in a bank
or railway company, or of the
amount due to him by an indi-
vidual or corporation, is within
this definition ; and so is a bequest
of the furniture in his dwelling
house, or of the wine, which he im-
ported in a particular year. But
a bequest which is so worded that
it may be satisfied by any object
of the kind prescribed is general ;
and if the testator has no such
property at his death, it is incum-
bent on the executor to carry out
his will by purchasing what has
been bequeathed, and transferring
it to the legatee ; Norris v. Thomp-
son, 1 C. E. Green, 218, 222 ; Daws
V. Cain, 1 Iredell Eq. 304.

A bequest of a ring, of a horse,
or of a watch, is not specific in the
legal sense of the term, although
the testator designates the kind, by

ASHBURNBE V- MACGUIRE.

647

providing that the watch shall be
of English or American make, or
the horse thoroughbred ; and this is
true a fortiori where the subject of
bequest is the stock of a govern-
ment or corporation, and one share
presumably like every other, ante,
605. Agreeably to the weight of au-
thority, a legacy or bequest which
is general in the sense of the above
rule, will not be i-endered specific
by showing that the testator owned
property answering to that which
he gave, and therefore presumably
intended that it should go to satisfy
the bequest, ante, 610. For although
such evidence may justify a belief
that he expected that the goods
which he then had would remain
in his possession until lie died, and
then serve to carry out his will,
still it does not follow that he in-
tended these to be the only means,
or that their failure or iusufflciency
should invalidate the bequest ;
Tift V. Porter, 4 Selden, 516 ;
Davis V. Cain, 1 Iredell Eq. 304 ;
Grahams. Graham, 1 Busbee Eq.
291; Corbin v. Mills, 19 Grattan,
438 ; Langdon v. Astor's Execu-
tors, 1 Duer, 4T8, 545, 16 New
York, 933. Such a legacy is con-
sequently demonstrative, not spe-
cific ; De Notteheck v. Astor, 3
Kernan, 98, post, 660.

The subject matter of a specific
legacy may be indicated as having
been derived from a designated
source ; see Spencer v. Higgins, 22
Conn. 521 ; Warren v. Wigfall, 3
Dessaussure, 4Y ; Pell v. Ball, 1 '
Speer Eq. 48 ; Lilly v. Gurry, 6
Bush, 590 ; as being in a particular
place, or as having been acquired
at a certain time ; and it may be

said in general that any earmark
will suffice which denotes that the
testator intends to give a specific
thing, and not merely that the lega-
tee shall have a thing of the kind
described. So a gift of a slave or
a hor^e by name, as " Plato" or
" Eclipse," will be specific if the
testator has a chattel answering
that description when the will is
executed. A bequest of " two year-
ling heifers," which in fact refers
to two heifers then in the possession
of the testator, or of the " furniture
and property brought by my wife
at the time of our marriage," is
specific; Stickney v. Davis, 16
Pick. 19; Spencer v. Higgins,
22 Conn. 521 ; and so is a be-
quest of " all my stock which I
hold in the Union Bank ; " Black-
stone V. Blackstone, 3 Watts, 335 ;
WGuire v. Euans, 5 Iredell
Equity, 269 ; Brainard v. Cow-
drey, 16 Conn. 1 ; " of the Cincin-
nati five per cent, stock now in my
possession ; " Alsop^s Appeal, 9
Barr, 3*74 ; or of the dividends
and income of stock in a bank or
railway company, notwithstanding
a direction that if the stock is paid
off, the executors shall invest the
principal for the benefit of the lega-
tee ; Wliite V. Winchester, 6 Pick.
48; Cuthberty. Cuthbert,3 YeaAes,
486 ; Manning v. Craig, 3 Greoi
Ch. 436 ; and every bequest of
which, in express terms or by a
necessary implication refers to
what the testator then has, and
cannot be satisfied by the substitu-
tion of other property of the same
nature; M''Guire v. Evans, 5 Ire-
dell Eq. 269. A bequest of a debt,
or of a security for a debt, is spe-

648

SPECIFIC LEGACIES. ADEMPTION.

cific ; Stout V. Hart, 2 Halstead,
414 ; Hoiuell v. Hook, 4 Iredell,
Eq. 188 ; Sparks y. Werden, 21
Maryland, 156 ; Mellon's A^ojxal,
10 Wright, 165 ; and so is a be-
quest of the proceeds of a mort-
gage ; Gardner v. Printup, 2
Barbour, 83 ; or of the money
■which may be received under a de-
cree or judgment; Chase v. Lock-
erman, 11 Gill & Johnson, 185;
Galhreath v. Winter, 16 Ohio, 64 ;
but a bequest of a sum payable
out of a debt, or contained in a
bond or mortgage, is demonstra-
tive and not specific ; Gallagher v.
Gallagher , 6 Watts, 675 ; Gidd-
ings V. Seward, 16 New York, 365.
A legacy of money in a bag or
drawer is specific, and so is a be-
quest of the money which the tes-
tator may be possessed of, or which
shall be standing to his credit
in bank; Toole v. Swasey, 106
Mass. 100 ; Beck v. M'Gillis, 9
Barb. 35 ; but a bequest of money
generally, will not be rendered
specific by a direction that it shall
not be put out at interest, and
shall be kept in gold and silver,
until the testator's children come
of age ; Mathis v. Mathis, 3 Har-
rison, 59. Nor will a bequest of
" $850, now in the possession of
my wife," be specific, when the
testator goes on to direct his ex-
ecutors to pay her $150 more, and
declares it to be his intention to
give her $1000 ; Hndersv. Enders,
2 Barbour, 362. A bequest of
" promissory notes out of those in
my hands," is, in its own nature
specific ; but a bequest payable in
'' such notes, if the legatee thinks
fit," is obviously general ; Perry

V. Maxu-ell, 2 Dev. Equity, 488
A bequest of such of the testator's
carriages, or so much of his furni-
ture as the legatee may choose to
select, will be specific ; that being
certain which is capable of being
reduced to certainty ; Wallace v.
Wallace, 3 Foster, 149 ; EverittY.
Lane^ 2 Iredell Eq. 548.

In Mann v. Mann, 1 Johnson
Ch. 231, 14 Johnson, 1, it was de-
termined by the Chancellor and
afterwards by the Court of Ap-
peals, that a bequest to the testa-
tor's wife of all the rest and resi-
due of the moneys belonging to him
at the time of his decease, must be
taken in its ordinary acceptation,
as meaning only cash, although he
had but $500 in currency when
he died, and not less than $20,000
in bonds, mortgages, and other
choses in action; and the court
held that his declarations during
his last ilhiess were inadmissible
to show that he used the word in a
more extended sense, and meant
that the gift should embrace tlie
money which he had at interest.
It was decided in like manner, in
Beck V. M'Gillis, 9 Barb. 35, that
nothing passed by a bequest " of
all the monej'' which the testator
should be possessed of," but the
cash actually in his hands when
the will tooli: effect, or which was
then deposited to his account in
bank. On the other hand, in
Morton v. Perry, 1 Metcalf, 446,
evidence that the testator pos-
sessed but $36 in cash, and had
just sold the land which con-
stituted the bulk of his property,
taking promissory notes for the
price, was held to show in connec-

ASHBURNER V. MACGUIRE.,

649

tion with the general tenor of the
•will, that a bequest of money was
intended to pass the notes.

Agreeably to some of the ear-
lier authorities, a bequest of a
sum of money is pecuniary, al-
though described as due by a third
person, or secured by his note or
bond; see Rider v. Wagner^ 2
Peere Williams, 328; White r.
Winchestei', 6 Pick. 48,55; Wal-
ton V. Walton, 1 Johnson Ch. 258 ;
Doughty v. Stilwell, 1 Bradford,
300, 305 ; and in PauleVs Case,
T. Raymond, 335, a legacy "of
5,000Z., which my sister, the Lady
Cholmley hath now in her hands
of mine, as by her bond made to
me and my heirs doth appear,"
was sustained on this ground,
although the bond had been paid
before the testator's death. This
decision was virtually overruled
in the principal case ; see White
V. Winchester ; and it is now es-
tablished, that such bequests are
specific, and not demonstrative
or pecuniary, and will fail if the
debt is satisfied or extinguished
before the will goes into effect. See
Walton V. Walton, post; Stout y.
Clark, 2 Halstead, 414 ; Howell v.
Hook, 4 Iredell Eq. 118 ; Chase y.
Lockerman, 11 Gill & Johnson,
185 ; GalbraitJiY. Winter, 10 Ohio,
64 ; Cogshell's Executors, 3 Des-
saussure, 384. In Stout v. Clark,
a bequest of " all the money
owing on a bond against Peter
and John Phillips," was accord-
ingly held to be specific ; and the
court said that the (distinction
taken by Lord Camden between a
bequest of 500Z. due to me by A.
and a bequest of the debt, had

been exploded, and was no longer
recognized by the courts.

The case of Giddings v. Seiuard,
16 New York, 365, diverges from
this course of decision, and comes
nearer to the line of the earlier
precedents. The testatrix be-
queathed " the sum of $1,200, and
interest on the same, contained in
a bond and mortgage executed by
Orrin W. Seward," to her mother
for the term of her natural life,
and after her decease to her hus-
band. Selden, J., said that the
idea of a specific legacy seemed
to be excluded by the phraseology
of the will itself. The gift was
not of the bond and mortgage, but
of the sum which they contained.
It was, therefore, isecuniary with
a demonstration of the bond as
the source from whence the money
was to be derived.

In Corbin v. Mills, 19 Grattan,
438, the question arose on the fol-
lowing bequests ; one for life " of
$1,080, being the interest on the
purchase-money of real estate in
Main street, Richmond, sold by
me to Morris," with a gift over of
the principal ; the other " of the
sum of $5,000 in Yirginia State
stock." Joynes, J., said that a
legacy will not be construed to be
specific unless such was clearly
the intention. This did not ap-
pear as to the first bequest, which
was in terms of a sum of money,
and referred to " the purchase-
money of a sale to Morris," as a
fund which kept at interest, would
afford the means for the annual jpay-
ments. It could not be discovered
from the will that the money was
still due from Morris. It was, in

650

SPECIFIC LEGACIES. — ADEMPTION.

point of .fact, still due at the
date of the will, but if the whole
of it had been collected by the
testator as part of it was, the
fund might still have been de-
scribed as " the purchase-money
of the lot sold to Morris." A
bequest would not be adeemed by
the conversion of the property
from one form into another, when
the designation was broad enough
to cover both. The legacy was not
specific, but demonstrative ; that
is to say, a general legacy with a
reference to a particular fund as a
means of satisfaction. On the
other hand, the bequest of $5,000
State stock did not refer to any
particular stock, or depend on the
testator's being possessed of that
amount of State stock at the time
of his death. The bequest was,
therefore, not specific ; it was a
general legacy, but not demonstra-
tive, because not charged on any
particular fund.

The better opinion is that one
may make a specific bequest of
that which he does not possess,
but hopes or intends to acquire.
In Sparks v. Weedon, 21 Md. 126,
the will contained two bequests,
one to Wm. Jones, " of all the
shares of stock standing in my
name in the Freeman's Bank at the
time of my death," and also " of
the amount of the notes of James
Sands ; " and the other to Mary
Jones, " of a note drawn by Igle-
heart & Co., for $1,000, and of
my silver plate and furniture,
which she now has in her posses-
sion ; " and it was held, that both
were specific, and must abate in a

like proportion, in the event of the
insufficiency of the personal estate.

In this instance, the stock in
question was owned by the testa-
tor when he made the bequest, and
continued to belong to him until
he died, and it did not become ne-
cessary to consider whether the
bequest would have been general
or specific as to stock acquired sub-
sequently to the execution of the
will, but the point arose and was
determined in Fontaine v. Tyler,
9 Price. The testator there be-
queathed the sum of 1 0,000Z. stock,
in the reduced or consolidated bank
annuities, with a proviso that if
he should not have so much at his
decease, his executors should make
up the said sum, and hold the same
for the legatee. He had at his
death a much larger amount of such
stock than that bequeathed. The
legacy was held to be specific,
with the substitution of a general
pecuniary legacy in the event of
the failure or ademption of the
original gift.

In Parrott v. Worsfold, 1 Jacob
& Walker, 5Y4, the will contained
a bequest of all the stocks which
the testator might be possessed of,
or entitled to at the time of his
decease. Sir Thomas Pluner said,
the words were general, including
not only the stock that he had at
the time of making his will, but
all that he might subsequently ac-
quire. Had it ever been decided
that such words would constitute
a specific legacy ? They certainly
did not, agreeably to the ordinary
criterion that the bequest must be
liable to ademption, for if the tes-

ASHBURNEE V. MACaUIRE*

651

tator had sold the stocks which he
then held, and bought others, they
would have passed by the bequest.

This judgment was cited and
approved in Woodworth's Estate,
31 California, 595 ; but it is now
established under the recent course
of decision, that a bequest of all
the personal property of a certain
kind that one may own or be pos-
sessed of at his death, is not less
specific for being general, ante,
332, 336. This was virtually con-
ceded in Parrott v. Worsfold, by
Sir John Plumer, who observed,
that a bequest of after-acquired
property may be specific in a cer-
tain sense, as for instance a legacy
of all the cabtle and personal effects
which shall belong to the testator
at his death.

It results from these decisions,
that a testator may, in bequeath-
ing a debt, also give whatever he
may at any time recover or receive
from that source during his life,
and where this precaution is ob-
served the legacy will not be
adeemed by payment ; Clark v.
Brown, 2 Smale & GifiTord, 524 ;
Gardner v. Printup, 2 Barb. 83.
In the case last cited, the testator
bequeathed " the proceeds " of a
bond and mortgage. Gridley, J.,
said, that the bequest was clearly
specific, embracing such of the
avails of the bond as were on hand
at the testator's death, and capable
of being traced and identified as
such. To this extent the legacy
was effectual ; but it was adeemed
as to so much of the proceeds as
had been used by him in the pay-
ment of his debts, or otherwise
mingled with and sunk in his gen-

eral estate. In Galbraith v. Win-
ter, 10 Ohio, 65, the court reached
a diflTerent conclusion, apparently
with less reason.

A bequest of the whole or of a
given part of the effects of a cer-
tain kind, which the testator may
own at his death, is at once general
and specific ; specific because it
is confined to goods of that par-
ticular kind, general because any
goods of that kind which the
testator owns at his death may
pass by the bequest. The law was
so held in Bethune v. Kennedy, 1
Milne & Craig, 114, where the
testator gave " lOOZ. transfer stock
in the long annuities," to A. and
the like sum to B., and " the resi-
due of my property, all I do or
may possess in the funds or of copy
or leasehold estates, to his sisters
for life," with a limitation over at
their death.

The court held that the bequest
to the sisters was specific and not
residuary, and entitled the legatees
to the amount invested in the long
annuities, to be enjoyed by them
during their lives in the state in
which it was left by the testatrix.
The Master of the Rolls said that
the test of a specific bequest is
whether it would be liable to abate
with the pecuniary legacies, if the
personal estate proved to be insuf-
ficient to satisfy the debts. One
who claimed under a gift of all the
property of a particular kind,
which the testator might possess,
would not be liable to contribute
under these circumstances, and
such was the nature of the bequest
under consideration.

In view of what was said, on

652

SPECIFIC LEGACIES.

■ADEMPTION.

this occasion it may be proper to
observe that freedom from liability
to contribute to the payment of
debts, is not a decisive test of a
specific legacjr, because it will exist
wherever the testator manifests an
intention to exonerate the legatee,
whether the gift is general or spe-
cific, ante, 335. See Blunt v.
Hipkins, "T Simons, 43 ; Lightfoot
V. Lightfoot, 27 Alabama, 351.
In Lightfoot v. Lightfoot, the
testator made several specific be-
quests, and directed that his exe-
cutors should sell a certain " tract
of land, two negroes and all stock
not bequeathed, and paj' his debts,"
and then gave " the rest of his
negroes and anjr monej'' that
might remain to his grandchild-
ren." The fund provided for the
payment of the debts proved
to be insufficient, and the question
was whether the legacy to the
grandchildren was entitled to ex-
oneration at the expense of real
estate which had been acquired
subsequently to the execution of the
will. Goldthwaite, J., said, that
where all or any portion of the per-
sonal estate is given as a whole, and
not as a residuary bequest, the in-
tention presumably is that it shall
not be liable to the charge of debts.
The case before the court was.
virtually a bequest of all the slaves
which the testator should possess
at the time of his death and which
had not been bequeathed to others.
It was therefore within the rule
that a gift of all the property
which the testator has of a certain
kind is a specific legacy, and en-
titled as such to exoneration at the
expense of the heir.

It is well settled that assets
which have been specifically be-
queathed, do not abate with pecu-
niary and general legacies, and
cannot be required to contribute
to the payment of debts, until the
entire exhaustion of the general
personal estate and the descended
lands, and will then be entitled to
contribution, from lands devised,
a7ite, 326 ; Toole v. Swasey, 106
Mass. 100 ; see Brainerd v. Gou-
dry, 16 Conn. 1, 498 ; Lightfoot v.
Lightfoot, 21 Alabama, 351 ; Corn-
ish V. Wilson, 6 Gill, 391 ; Nash v.
Smallwood, 6 Maryland, 394;
Alexander v. Worthington, 5 Id.
471. Such at least is the rule as
regards debts which are a charge
on the real estate from their own
nature, or with which it has been
charged by the testator ; ante,
326, 328 ; Armstrong's Appeal, 13
P. F. Smith, 312.

The courts incline against con-
struing legacies as specific, in order
to guard the legatee against the risk
of ademption, and that the legacy
may be liable to contribution and
abatement, if the assets are insuf-
ficient to pay the debts and satisfy
the general and pecuniary legacies,
Kirby v. Porter, 4 Yesey, 748 ;
Smith V. Lampton, 8 Daaia, 69 ;
Tift V. Porter, 4 Selden, 516;
Bell V. Hughes, 8 Eichardson,
397 ; Norris v. Thompson, 1 C. E.
Green, 222, 542. But the doctrine
should be confined within just
limits, and not allowed to contra-
vene the plain import of the will ;
Ludlam's Appeal, 1 Parsons, Eq.
116, Norris v. Thompson.

In Ludlam's Appeal, 1 Parsons
Eq. 116 ; 1 Harris, 188 ; abec[uest

ASHBUKNBR V. MACGUIKB.

653

of " one thousand dollars on the
books of the loan ofHce Pennsyl-
vania, as per certificate No. 267,"
was held to be specific, and there-
fore adeemed by the payment of
the loan before the will took efiect.
" It has been strongly urged on us,"
said King President, " that this is
not a regular specific legacy, but
one in the nature of a specific
legacy ; one in which a given sum
of money is bequeathed, with ref-
erence to a particular fund out of
which it is to be satisfied ; and
that this class of legacies are never
held to be adeemed or extinguished
by the sale or other disposition by
the testator of the fund from which
payment is to be made previous to
his death. That a distinction does
exist, between a bequest of a sum
of money referring to a security
or debt for its payment, and a gift
of the security or debt itself, is
undoubted, although Lord Thnr-
low, in Aishhurner v. McGiiire,
seemed to have regarded it as a
refinement. The leaning of courts
of equity is always against regard-
ing a legacy as specific. The will
is always read with an inclination
to hold a legacy general; and if
there is the least opening to
imagine the testator meant to give
a sum of monej', and referred to
a particular fund only, as that out
of which in the first place he
meant it to be paid, the legatee
will have this advantage, that it
shall be considered pecuniarj', so
as not to have the legacy defeated
by the destruction of the security ;
Chaworth v. Beech, 4 Yesey, 555,
565 ; Ambler, 568. The same
legacy may be specific in one sense.

and pecuniary in another ; specific
as given out of a particular fund,
and not out of the estate at large ;
j)ecuniary, as consisting only of
definite sums of monej^, and not
amounting to a gift of the fund
itself, or anj' aliquot i)art of it :
Smith V. Fitzgerald, 3 Ves. &
Beam. 5. The kind of legacy
alluded to is what is termed in the
civil law a demonstrative legacy,
that is, a general pecuniary legacy,
with a particular security pointed
out as a convenient mode of pay-
ment, where although such se-
curity may be called in or fail, the
legacy will not be adeemed.

" Of this kind of legacy the case
of Kirhy v. Potter, 4 Vesey, 4*78,
is an example. There a legacy to
B. of lOOL, out of my reduced
bank annuities, 3 per cents., ' was
ruled to be a general and not a
specific legacjr.' Lord Alvanley
holding the phrase ' lOOL, out of
my reduced bank annuities,' meant
that the executor should raise lOOL
bj' selling so much of that stock
Sibley v. Perry, "I Vesey, 522
LeQuie v. French, S Merivale, 49
Deane v. Test, 9 Vesey, 146
Fowler v. Willoughby, 2 Sim. &
Stewart,.358, are cases determined
on the same principle. The prin-
ciple extracted from these cases
is, that a sum of money bequeathed
out of particular stock, is i^rima
facie adjudged a money legacy,
but liable to be considered a spe-
cific bequest, of so much of the
identical stock which the testator
had, when a clear intention appears
upon the whole will. In Barker
V. Raynor, 5 Madd. Ch. E. 21T, it
is said, that " when once it is de-

654

SPECIFIC LEGACIES.

■ADEMPTION.

termined that a legacy of a debt is
specific and not demonstrative, the
only safe and clear way is to ad-
here to the plain rule, that there is
an end of the specific gift, if the
specific thing does not exist at the
testator's death."

Agreeably to the weight of au-
thority a bequest of the whole or
of a definite proportion of the
personal estate is general, and as
such bound to abate or contribute
ratably with pecuniary legacies
in the event of the deficency of
the assets. SeeBardwelly Bard-
well, 10 Pick. 19 ; Mayo v. Bland,
4 Maryland Ch. 484; and it is
immaterial that the testator in
making such a gift enumerates the
items of which it consists. Wal-
ker's Estate, 3 Kawle, 229 ; Mayo v.
Bland, ante, 333, 385 ; unless these
constitute the substantial part of
the bequest, and the geaeral words
are merelj'' formal. See Blunt v.
Hopkins, 7 Simms, 43 1 ; Graham
V. Graham, 1 Barber Eq. 291 ;
Brown v. James, 8 Strobhart Eq.
24 ; Minor v. Dabney, 5 Randoljjh,
191; Spraker y. Van Astyne,\d,
Wend. 204; McLaughlin v. Mc-
Laughlin, 12 Harris, 20. The
question is nevertheless one of in-
tention as deduced from the gen-
eral tenor of the will, and where the
testator gives one portion of his
property, although generally, and
directs that his debts shall be paid
out of another portion, it will be
presumed that he means the former
to be exempt until the latter is
exhausted. McLaughlin v. Mc-
Laughlin.

In Armstrong's Appeal, 13 P.
F. Smith, 316, Sharswood, J., de-

fined a demonstrative legacy " as
the bequest of a certain sum of
money with a direction that it
shall be paid out of a particular
fund. It differs from a specific
legacy in this respect, that if the
fund out of which it is payable fails
for any cause, it is nevertheless en-
titled to come on the estate as a
general legacy, and it differs from
a general legacy in this, that it
does not abate in that class, but in
the class of specific legacies ; 1
Roper on Legacies, 153. It is
settled by this court that in the
marshalling of assets for the pay-
ment of the debts of a tfestator,
specific devises of land abate jDro-
portionally with specific and de-
monstrative legacies ; Barkley's
Estate, 10 Barr, 38"? ; HallowelVs
Estate, 11 Harris, 223."

A demonstrative legacj'' may
also be defined as a pecuniary or
general legacy charged on a spe-
cific fund, which thus becomes
primarily liable for the amount.
A bequest of a debt is conse-
quently specific, a bequest out of
a debt demonstrative, and so of a
bequest of the sum "contained" in
a bond as distinguished from a
legacy of the bond. See Giddings
V. Seward, 16 New York, 865 ;
Gallagher v. Gallagher, 6 Watts,
etS, ante.

In Enders v. Enders, 2 Barb.
362, the following bequest " my
said wife having now in her pos-
session $850, I direct my execu-
tors to pay her the sum of $150
more so as to make the sum $1000,
my meaning and intention being
to give her the sum of $1000," was
held to be a pecuniary legacy of

ASHBURNEK V. MACQUIRB.

655

3, with a demonstration of the
fund in the ■wife's hands, as to
the source whence $850 of the
amount was to be drawn. It was
therefoie incumbent on the execu-
tors to pay the whole, unless they
could show that the legatee had
the $1000 or some part of it
when the will took effect.

A bequest of specific things out
of other things of the same kind,
is prima facie not less specific
than the source from whence the
gift is to be drawn, ante ; see
Maxwell v. Maxwell^ 6 Dev. Eq.
488 ; as where the legatee is em-
powered to choose such articles as
he may desire among the testator's
furniture or personal effects. See
Wallace v. Wallace, 3 Poster, 149 ;
Everett v. Lane, 2 Iredell Eq.
548. Where, however, the testa-
tor bequeathed " five hundred dol-
lars in bank notes of the Bank of
Kentucky, out of moneys of
that description now in my hands,"
and directed his executors to in-
vest the same in land for the use
of the legatee, the Court held, in
view of the extrinsic evidence, that
the legacy was Idemonstrative and
as such not adeemed, although all
the Kentucky Bank notes in the
testator's hands were expended
before his death. Smith v. Lamp-
ton, 8 Dana, 69

It is well settled in accordance
with the rule enunciated in Arm-
strong's Appeal, that a demonstra-
tive legacy will not fail in conse-
quence of the failure or insuffi-
ciency of the fund which is pointed
out as the means of paj^ment, or
even where no such fund exists ;
Geddings v. Seward, 16 New York,

365 ; Newton v. Stanley, 28 Id. 61 ;
Welcli's Appeal, 4 Casey, 363 ;
Walls V. Stuart, 4 Harris, 275,
281 ; Gallagher v. Gallagher, 6
Watts, 4'75 ; CogdeWs Exor's v.
The Widow, 3 Dessaussure, 346.
Thus a bequest of $10 due by J. S.
is invalid if he owes nothing, or if
the debt is paid in the testator's
lifetime ; but a bequest of $10 out
of the amount due by J. S. is a pe-
cuniary legacy, and must be paid as
such, whether J. S. is or is not in-
debted to the testator ; Walls v.
Stuart, Gallagher v. Gallagher,
Newton v. Stanley. In like man-
ner, where various sums were be-
queathed out of the purchase-
money of certain land which the
testator had agreed to sell, it was
held that the bequests were not
specific, although they were there-
by thrown on the personal estate,
contrary to his expectation when
the will was made ; GogdeWs
Exor's V. The Widoio. But a
bequest out of a fund, may be so
worded as to show that the fund
is meant to be the only source to
which the legatee can look for
payment, and the failure or aliena-
tion of the fund will then adeem
the legacy, ante, 633. See Balliett's
Appeal, 2 Harris, 451 ; Walls v.
Stewart, 4 Id. 215. "If," said
Bell, J., in Walls v. Steioart, " a
legacj' be given with reference to
a particular fund, only as pointing
out a convenient mode of payment,
it is considered demonstrative, and
the legatee will not be disap-
pointed though the fund totally
fails. But where the gift is of the
fund itself, in whole or in part, or
is so charged upon the object made

656

SPECIFIC LEGACIES. — ADEMPTION.

subject to it, as to show an intent
to burden that object alone with
the payment, it is esteemed spe-
ciiic, and consequently liable to be
adeemed by the alienation or de-
struction of the object."

In determining the nature of a
legacy, regard must be had to the
rest of the will, as well as of the
particular clause, and if the instru-
ment taken as a whole, shows that
the testator meant to give the
identical property which he then
owned, the bequest will be specific,
although it might receive a differ-
ent interpretation if considered
separately ; Everett v. Lane, 2
Iredell Eq. 548 ; M'Guire v.
Evans, 5 Id. 269 ; Stickney v.
Davis, 16 Pick. 19 ; Norris v.
Thomson, 2 M'Carter, 493 ; 1 C.
E. Green, 220.

In Everett v. Lane, the will
contained the following bequest :
5th "I give and bequeath unto
Lavinia Everett, one negro girl
by the name of Lavinia, and my
will and desire are that three of
my negroes be sold, to wit : Bill,
Burwell andEdmond. 6th. I give
and bequeath unto my beloved wife
the following property, viz. : all
the balance of my lands and ne-
groes which I am possessed of, and
all my household and kitchen fur-
niture, one year's provisions, five
head of horses, her choice, one
carriage, one yoke of oxen, her
choice, three pens of hogs, her
choice, five cows and calves, her
choice, five sets of farming tools,
her choice, one set of blacksmiths
tools to her and herassigns forever."
The court said that when the
testator, after giving certain slaves

by name went on to bequeath " all
the balance " of his land and ne-
groes, the legacy was as much
specific as if each slave had been
given nominatim. So the bequest
to his wife of five head of horses,
of one j'oke of oxen, etc., was ren-
dered specific by the power given
to her to choose, which implied
that she was to make a selection
among the chattels of that kind in
the possession of the testator at
his death. What he intended by
the gift of one carriage and one
set of blacksmith 's tools was not less
clear, because lie owned but one
carriage and one set of blacksmith's
tools, and must be presume 1 to
have had these in view in making
the bequest. Where it appeared
on the face of the will, that the
testator meant to dispose of some-
thing in kind, it might be shown
by parol that he had but one thing
of that kind to dispose of. Innes
V. Johnson, 4 Vesej', 56S. But
the bequest of one j'ear's provi-
sions could not be deemed specific,
because it did not clearly appear
that the supply was to be drawn
exclusively from the prodice of
his farm, or that if this proved in-
sufficient, the executors were not
to bujf what might be requisite for
the subsistence of the legatee.

In Tift V. Porter, 4 Sheldon,
516, Johnson, J., said that this
case went against the main current
of decision, and could not be re-
garded as a precedent. There was
no more ground for supposing
that the expression " one carriage "
meant any particular carriage, than
there was for supposing that one
year's provisions referred to pro-

ASHBURNER V. MACGUIRE.

657

visions then owned by tlie testator,
and yet the latter bequest was held
to be general, and the former
specific. The reason assigned in
Everett v. Lane, on the authority
of Innes v. Johnson, may be open
to criticism, but the conclusion
was entirely just, because the entire
clause showed unmistakably that
the testator was treating of his
farming stock and implements,
and intended to apportion them
among the legatees. Where one
in disposing of various objects
belonging to a class, directly or in-
directly designates some of them
as belonging to him, the others
may be supposed to be his also,
and if this inference is corrobo-
rated by proof tliat he owned
them all at the date of the will,
the legacy may well be deemed
specific.

Tlie case of Stickney v. Davis,
16 Pick, 19, admits of this ex-
planation, and can hardly be sus-
tained on any other ground. The
testator there gave to his wife two
cows from his stock of cattle, to
the eldest of his two sons the re-
mainder of his stock of cattle ex-
cept one pair of yearling steers, and
to the other son, one pair of year-
ling steers. The entire bequest
was held to be specific on proof
that he had but one pair of jear-
ling steers when the will was exe-
cuted, that he had reason to expect
a speedy termination of liis life,
and that he died soon afterwards,
while the steers were still year-
lings.

In like manner a bequest will
not readily be construed as gen-
eral where such an interpretation
VOL. II. — 42

would, where taken with the other
provisions of the will, compel the
executor to dispose of property
owned by the testator and answer-
ing to that bequeathed, and then
purchase property of the same
kind ; Ashton v. Ashton, Cases
temp. Talbot, 152. In Graham v.
Graham, 1 Busbee Eq. 291, the
testator bequeathed " one negro
girl, named Mary, to his daughter,
also 8000 lbs. of iron, and the
same quantity of castings," and
then gave another daughter
" $3000 worth of iron and castings
at 3 cts. each." The court said
that if these bequests were consid-
ered apart 'from the rest of the
will, they could not be interpre-
ted as specific. No particular iron
or castings were mentioned, nor did
the testator say my iron and cast-
ings, or the iron and castings
which I may have on hand at the
time of my death. Such a legacy
resembled a legacy of so many
shares of bank stock which is
clearly a general legacy, although
the testator owns the number of
shares named. But on reading the
other clauses of the will, there
could be no doubt that the bequests
were intended to be specific, be-
cause the executors were directed
to sell all the property not named
and given away specifically. If
the iron and castings were not be-
queathed specifically, they would
have to be sold under this clause
for whatever they would bring, and
then repurchased for the use of the
legatees. It was not to be sup-
posed that the testator meant to
enjoin a circuitous course when the
end might be attained directly, and

658

SPECIFIC LEGACIES,

■ADEMPTION.

without the loss incident to such
sale.

Agreeablj' to the weight of au-
thority, a general bequest of chat-
tels will not be rendered specific
by evidence that the testator was
possessed of goods corresponding
in amount or value to those be-
queathed ; but the course of deci-
sion has not been uniform, and it
was contended at one period that
the rule does not apply to stocks
or other articles which are in their
nature durable ; Jeffreys v. Jeff-
rei/s,3 Atkins, 120. In that case the
bequest was " of 2Y02L 3.s. capital
stock in the Bank of England,"
and " 2000L capital stock in the
East India Company.'' Attlietime
of making the will, the testator
had the precise amount of stock be-
queathed, but afterwards sold 702Z.
3s. of the Bank of England stock.
It was held that the testator hav-
ing the stock when the will was
executed, must be presumed to
have intended to give that very in-
dividual stock, and, that the be-
quest was consequently adeemed
pro tanio by the sale.

The Master of the Rolls said
that where a man devises a cer-
tain quantity of corn or number of
sheep generally, this is not to be
considered as a devise of the corn
or sheep which he then has, but a
devise of quantity only, and
though he has such quantity at the
time of making the will, yet he
cannot from the nature of the
things be taken to intend that they
shall go specifically to tiie lega-
tee, and the bequest should rather
be considered as a general one to
be made good by the executors.

Where, on the other hand, he de-
vises any quantity of bank or other
stock, which being in its nature
durable, may continue in the same
state to his death, and has such
stock at the time, he must be taken
to intend that this shall be appro-
priated to the legatee, and not that
his executors shall purchase the
stock as a means of carrying out
the bequest. This inference was
peculiarly strong in the case before
the court, because the stock be-
queathed, and the stock which the
testator owned, agreed exactly even
to the shillings.

The case of Innes v. Johnson^ i
Vesey, 568, is nearly to the same
efl'ect. " The full interest of £300
upon bond " was there bequeathed
to the testator's " sister during her
natural life," with a gift over of " all
the interest that shall be due upon
the said bond, together with the
principal," to his niece Cliristian
Innes ; and it was contended on be-
half of the legatees, that the court
should, in view of the inclination
against specific legacies, presume
that the bequest was for £300, se-
cured by bond. The Master of the
Rolls said there was among the
assets one bond for the precise
amount, and various other bonds
for different amounts. If the bond
for £300 had been the only one be-
longing to the testator, the pre-
sumption would have been that he
meant that, but as he had several
bonds, the case would have been
doubtful but for the subsequent
words " the said bond," which
showed that he had reference to a
particular bond. The legacy must,
therefore, be regarded as specific.

ASHBURNBR V. MACGUIKB.

659

These cases were cited and relied
on in Wliite v. Winchester, 6 Pick.
48. The testator there directed
his executor to " appropriate to-
wards the support of a school all
the income of twenty-seven shares
of the Beverlj' Bank, of ten and a
half shares of the Marblehead
Bank, and of fifteen shares in the
Union Marine Insurance Office ;"
" and in case either of said compa-
nies shall be dissolved, then my
executor shall invest the principal,
and appropriate the interest as
above." When the will was made,
the testator owned the precise
number of shares in the two banks
and the insurance company, but
afterwards sold his stock in the
first-mentioned bank. The court
said that whether a legacy is gen-
eral or specific, depends on the do-
nor's intention. "Where one by
will gives a certain amount of
stock in a particular bank, and at
the time has the exact amount so
given, it is only reasonable to sup-
pose that he intends to give the
stock which he owns.

The inference was strengthened
in the case under consideration by
the provision for the investment
of the principal, if the corporation
should be dissolved. The aliena-
tion of the Beverly Bank stock was
presumptive evidence that the tes-
tator intended to adeem that por-
tion of the bequest, and it was
corroborated by his sufiering his
will to remain unaltered after the
sale.

Notwithstanding these deci-
sions, there is a great prepon-
derance of authority that words
importing a general gift, will not

be controlled or limited by evi-
dence that the testator had prop-
erty answering to that which he
bequeathed, and should, therefore,
be presumed to have had exclu-
sive reference to it ; Gilmer v.
Gilmer, 42 Alabama, 9 ; Gorbin v.
Mills, 19 Grattan, 438 ; Davis v.
Kane, 1 Iredell, 304 ; ante, 610. In
Davis V. Cain, the effects be-
queathed were " my negro man
Plato, the sum of $2000 in money,
and twenty-five shares of the stock
of the Bank of North Carolina."
The testator owned twenty-five
shares in that bank, but it ap-
peared that the charter of the in-
stitution expired before his death,
and that a dividend had been de-
clared on the capital. Daniel, J.,
said that if the testator had said
my twenty-five shares of bank
stock, it would have been a spe-
cific legacy, but he had not so ex-
pressed himself, and a conjecture,
however plausible, that he intended
the stock which he then held
would not render the bequest spe-
cific. Being a general legacy, the
executor might have been required
to buy the prescribed number of
shares, and as that had not been
done, the legatee was entitled to
the sum they would have cost.
It was immaterial, that a divi-
dend had been declared on the
capital, because it had not been
received by the testator, and still
remained to his credit on the
books of the corporation. It had
been contended that the executors
should only pay what the stock
was worth in its altered state after
deducting the dividend, but such
a conclusion was inadmissible

660

SPECIFIC LEGACIES. ABEMPTION.

because there had been no actual
payment, and the amount was still
standing to the testator's credit
on the books. This case indicates
that a general legacy of things of
a certain kind, ■will be adeemed if
the species becomes extinct after
the date of the will and before it
can take effect.

The law was held the same way
in Tift V. Porter, 4 Selden, 516.
The testator bequeathed " two
hundred and forty shares of the
Cayuga County Bank, to his wife,
and also all his household furni-
ture, books and wearing apparel,"
" all of which property and bank
stock are to be delivered to her as
soon as may be after letters testa-
mentary shall have been granted,
and in lieu of dower." He then
bequeathed one hundred and
twenty shares of stock in the same
bank to another legatee, to be de-
livered in like manner. It was
held, that as the will gave no indi-
cation that the shares bequeathed
were to be taken from those owned
by the testator, the legacy was
general. Johnson, J., said, " A
legacy is general when it is so
given, as not to amount to a be-
quest of particular things or
moneys of the testator, as distin-
guished from all others of the
same kind. It is specific when it is
a bequest of a specified part of the
testator's personal estate, which is
so distinguished ; Wms. on Ex'rs.
838. In those cases in which
legacies of stocks or shares in
public funds have been held to be
specific, some expression has been
found from which an intention to
confine the bequest to the particu-

lar shares of stock could be in-
ferred. Where, for instance, the
testator uses such language as
" my shares " or any other equiva-
lent designation, it has been held
sufficient. But the mere posses-
sion by the testator at the date of
his will of stock to an amount
equalling or exceeding the legacy
will not of itself make the bequest
specific ; Wms. on Ex'rs, 842 ; 1
Roper on Leg. 206'!, The cases
of Davis V. Cain, 1 Iredell Eq.
R. 309 ; and Bohinson v. Addison,
2 Beav. 515, are directly in point.
In the first case, the bequest was
twenty-five shares of the capital
stock of the State Bank of North
Carolina. The testator owned
twenty -five such shares. The
court say the legacy is not spe-
cific. If he had said my twenty-
five shares of bank stock, it would
have been a specific legacy. The
other case was a bequest of five
and one-half shares in the Leeds
and Liverpool Canal, and all bene-
fit and advantage thereof. Tlie
will contained two other bequests,
each of five shares, in the same
terms. At the time of making his
will, testator owned fifteen and one-
half shares of said stock. The
only question was whether the
legacies were specific. The Mas-
ter of the Rolls, Lord Langdale
in giving his judgment, said : In
the gift, the testator has used no,
words of description or reference
by which it appears that he meant
to give the specific shares, which
he then had. Various arguments
depending on the general scope,
and eflfect of the will were used for
the purpose of showing that the

ASHBURNBR V. MACGUIRE.

661

testator in giving the precise num-
ber of sliares whicli he possessed,
must have had those shares and
none other in contemplation, and
consequently must have meant spe-
cific gifts of them.^ It is, however
clear, that the testator, if he had
meant to give only the shares which
he had, might have designated them
as his, and that the mere circum-
stance of the testator having at the
date of his will a particular propert}'
of equal amount to the bequest, of
the like property which he has
given, without designating it as
the same, is not a ground upon
which the court can conclude that
the legacies are specific. So in
Partridge v. Partridge, Ca. temp.
Talbot, 226, a bequest of £1000
capital, South Sea stock, to a wife
for life, with power of disposition
among children, althougli the testa-
tor when he made his will had
more than that amount of stock,
was held to be general and not spe-
cific. To the same effect are Sim-
mons V. Vallance, 4 Bro. C. C. 3ih,
and Sibley v. Perry, 1 Vesey, 324.
This last case is worthy to be more
particularly mentioned, because in
it there was a direction to trans-
fer £1000 stock in the public
funds called three per cent., con-
solidated, within three months
after the testator's decease, and a
similar direction to deliver is
contained in the will of the testa-
tor in this case. Lord Bldon
held the bequest not specific. In
Ashton V. Ashton, Ca. temp. Tal-
bot, 152, a bequest of £6000
South Sea annuities, in trust to
sell and to laj' out the proceeds, was
held specific ; the direction to sell

being inconsistent with giving
such a meaning to the words as
would authorize the executors to
buy for the purpose of selling.
The same argument plainly does
not apply to a direction to trans-
fer. That would be alike appro-
priate, whether the testator had or
had not the stock." The cases of
Langdon v. ^.stor's Executors, 1
Duer, 418, 545 ; 16 New York, 9,
3-3; and DeNollehech v. Astor, 3
Kernan, 98, are to the same effect.

General words ma3', nevertheless,
operate specifically, where it ap-
pears from the instrument as a
whole, that the testator's intention
was that the goods actually in his
possession, or owned by him,
should be appropriated to the pur-
poses of the will.

In Norris v. Thomson, 2 Mc-
Carter, 493 ; 1 C. B. Green, 220,
the testator devised " all the rest
and residue of his estate, real and
personal, in trust for the following
uses and purposes : First. To give
to my sister, Mrs. Caroline Norris,
250 shares of the capital stock of
The New York and Baltimore
Transportation lines ; to my sister
Amelia Reed, 250 shares of the
capital stock of said line ; to my
niece Elizabeth Norris, 125 shares
of the capital stock of said line.
Second. I give to my friends, John
M. Reed, Wm. H. Gatzmer, Dr.
Horwitz and Joseph P. Norris,
five bonds of $1000 each of the
Delaware and Raritan Canal Com-
pany, redeemable in 1889." It
was admitted that the testator at
" the date of his will and until he
died owned certain shares of the
New York and Baltimore Trans-

662

SPECIFIC LEGACIES. — ADEMPTION,

portation Company, exceeding the
amount of those bequeathed, and
also certain bonds of the Delaware
and Raritan Canal Company, ex-
ceeding the number of those be-
queathed and redeemable in 1889,
and also sundry other bonds of the
said company, redeemable in other
years." The Chancellor held the
bequest general, and assigned the
following reasons : " It is a settled
rule of construction, that a bequest
of government securities, or sliares
in' public companies, is not a
specific bequest, unless there is a
clear reference to the corpus of the
fund ; " 1 Roper on Leg. 214.

The same principle is clearly
applicable to the bonds of corpora-
tions, which at the date of the
will were outstanding and circu-
lating, as well known securities in
the stock market. To make a
legacy of such stocks or securities
specific, there must be something
upon the face of the will to individ-
uate them, and to distinguish them
from all others of the same kind.
Thus the legacy may be rendered
specific by the use of terms, " -my
stock," or the stock, or part of the
stock, now " in my possession," or
" standingin my name," or " owned
by me," or by indicating it to be
sold and converted into money, or
by any other form of expression
which clearly indicates the pur-
pose of the testator to give the
specific thing, and not to designate
the quantity or species of the
thing bequeathed ; 2 Williams on
Ex'rs, 997 ; 1 Roper on Leg. 204.
If by the terms of the will there
be no such identification of the
thing bequeathed, the legacy is

general, and if not found in his
possession at his death, is tanta-
mount to a direction to the execu-
tors to purchase such securities
for the legatee, and the mere pos-
session by the testator, at the date
of his will, of a larger amount of
stocks or bonds than are be-
queathed, will not make the be-
quest specific, when it is given
generally of stocks, or of stocks
in particular funds, without fur-
ther explanation ; 1 Roper on
Leg. 205 ; 2 Williams on Ex'rs,
999."

When, however, the question
came before the Court of Appeals,
this decision was reversed on the
ground that taking the bequest to
the trustees in connection with the
purpose for which the trust was
created, it sufficiently appeared
that the testator meant to dispose
of the shares which he then held,
as distinguished from others of the
same kind.

Ademption. — It results from the
definition of a specific legacy, that
if the thing bequeathed is aliened or
destroyed, or if it is converted into
another thing although of the same
kind, thebequest will fail. The rule
is commonly said to be irrespective
of intention, but a more accurate
statement is, that an intention
which is not expressed, will not
be implied, although the intention
which is expressed relates to some-
thing which does not exist, or
which is beyond the reach of the
will. Or, to state the principle
somewhat differently, the failure
of a gift does not justify a Court
in substituting something else
that has not been given. A specific

ASHBTJRNER V. MACGUIRB.

663

bequest of stock will be adeemed,
if the stock be sold, because what
the testator bequeathed was the
stock, and not the money into
which it is turned, and it is imma-
terial that he subsequently buys
other stock in the same corpora-
tion, unless the language of the
will indicates that his intention
was, not merely to give the stock
which he then had, but any stock
of the same kind which he might
afterwards acquire.

It has been repeatedly held in
accordance with this principle, that
a specific bequest is necessarily
defeated by the alienation of the
subject matter ; Blackstone v.
Blackstone, 3 Watts, 335 ; Al-
sop^s Appeal, 9 Barr, 371; New-
comb V. St. Peter's Church, 2
Sandford Ch. 636 ; Goddard v.
Wagner, 1 Strobhart Eq. 1 ; Whit-
lock V. Vaun, 38 Georgia, 562.
This conclusion may be deduced
from the change of purpose im-
plied in making a different disposi-
tion of the property bequeathed,
or from the incapacity of the will
to operate on that which does not
belong to the testator. If the
former ground were the only one,
there would be more reason for
concurring with the opinion ex-
pressed in White v. Winchester, 6
Pick. 48, that the presumption is
one of fact, and may be rebutted
by facts or circumstances indi-
cating an opposite design. But it
is now generally conceded that
whether parol and extrinsic evi-
dence is or is not admissible to
rebut a presumptive revocation,
it can have no place where, sup-
posing the intention to be un-

changed, there is nothing to which
it can apply ; Hope v. Harmer, 9
Harris, 351 ; Blackstone v. Black-
stone.

In the case last cited, a bequest of
" two hundred and fifty shares,
which I hold in the Union Bank of
Pennsylvania," was accordingly
held to be adeemed by a sale in the
testator's lifetime, notwithstanding
clear and uncontroverted proof that
he meant the bequest to subsist and
take effect, and that his motive
for parting with the stock was to
invest the proceeds for the benefit
of the legatees, in a way that
would be less exposed to risk.
" The rule that the annihilation of
a specific legacy, or such a change
in its state as renders it another
thing, annuls the gift," was said by
Gibson, C. J. "to be irrespective of
intention and too well established
under the authorities to be-
shaken."

In Alsop''s Appeal, 9 Barr, "374, a
bequest of " the Cincinnati nine per
cent, stock, now in my possession,"
was in like manner adeemed pro
tanto, by the sale of part of the
stock in the testator's lifetime ; and
it was held to be immaterial, that
he had subsequently executed a
codicil confirming the bequest and
charging it upon his estate, " in the
same manner as if it was herein
stated," because the codicil did not
vary the nature of the bequest,
and merely republished it as it had
been originally made, to wit, spe-
cifically. It was said to be well set-
tled that the republication of a will
formally, or by annexing a codicil,
would not restore a specific legacy
which had been adeemed by the

664

SPECIFIC LEGACIES. ADEMPTION.

sale or extinguishment of tiie in-
terest given. See Poweys v. Mans-
field, 3 Mylne & Craig, 376 ; Lang-
don V. Astor's Executory, 16 New
Yorlc, 9, ST, ante, 638 ; post, notes
to Ex parte Pye.

The authorities are not less
clear, that a bequest of a chose in
action, will be adeemed by the
payment or satisfaction of the
debt during the testator's life,
although the proceeds remain in
his hands, or have been converted
by him into another demand of
the like kind. The rule applies
equally whether the bequest is of
a debt due by an individual, or of
the stock of a private or public
corporation, or of the State; and
it is immaterial whether the pay-
ment is made in pursuance of a
demand from the creditor, or is
forced on him by the debtor, or
results from the act of the law,
contrary to the wish of both
parties ; Walton v. Walton, 1 John-
son, Ch. 258 ; Cuthbert v. Gulh-
hert, 3 Yeates, 486. In every
such case the thing given ceases
to exist, and the bequest goes with
it. In Cuthbert v. Cuthbert, a
legacy of the dividends of $8000
government stock in trust for the
separate use of the testator's niece,
tlie principal to go to the trustees
as ; aid off by tiie government, was
adjudged to have been adeemed by
tlie payment of the stock, while in
Ludlani's Estate, 1 Parsons Eq.
1 16 ; 1 Harris, 188, the same result
ensued from the act of the State
of Pennsylvania, in paying the
stock which constituted the sub-
ject of the bequest.

Tlie question arose in Walton v.

Walton, t Johnson Ch. 258 ;
under the following circumstances.
The testator bequeathed all his
right, title and interest in thirty
shares of the Bank of the United
States, and in four shares of the
Northern and Western Lock Navi-
gation Companies. The charter
of the bank expired not long
afterwards and the assets were
conveyed to trustees, for the bene-
fit of the stockholders. Various
dividends were declared in the ex-
ecution of the trust, and received
by the testator, but a large
amount of property remained in
the hands of the trustees at his
death. During the same period
the franchise and property of the
Northern and Western Naviga-
tion Company, were taken by the
State by virtue of the right of emi-
nent domain, and a considerable
sum awarded as compensation, part
of which only had been paid when
the will went into effect. Two points
arose on this evidence, were the
bequests specific? had they been
adeemed wholly or pro tanto ?
The first question was answered
affirmatively, and the court held as
to the second, that the sums which
had been paid were necessarily
withdrawn from the operation of
the will, but that it remained in
force as to the residue, notwith-
standing the change of circum-
stances through which the in-
terest of the testator had been
converted, from the original form
of stock, into a mere pecuniary
demand. " I am of opinion," said
Chancellor Kent, " that these bank
shares were given as a specific
legacy. The testator e'\-idently

ASHBURNER V. MACGUIRB.

DDO

meant to give those identical
shares, whether they were worth
more or less, and not the value' of
them in money. This wouli ap-
pear to be a very clear point ; yet
in considering this doctrine of
ademption, it is difficult some-
times to jierceive the distinction
which is endeavored to be kept up
through all the cases, between
specific and general pecuniary
legacies. "Where a debt or specific
chattel is bequeathed {legatum
nominis vel debiti), the specific
legacy is extinguished in the life-
time of the testator, by the extin-
guishment of the thing itself, as
by payment of the debt, or by the
sale or conversion of the chattel.
But the ademption does not apply
to a pecuniary or demonstrative
legacy, which is general in its
nature, though a particular fund
be pointed out by the will to
satisfy it. If the fund fails, such
a legacy is to be made good out of
the general assets, as the fund is
designated only as the most con-
venient means by which to dis-
cliarge it, and becomes descriptive
of the amount or value of the gift.
" We have an example of this
kind of money legacy given in the
civil law, and of the sound princi-
ple upon which the distinction is
supported. The testator gave to
Pamphila 400 aurei or pieces of
gold, and referred to a debt which
Julius, his agent, owed him, and
to his property in the arm}', and
to his cash. (Aureos quadring-
entos Pamphilse dari volo, ita ut
infra scriptum est : ah Julio auc-
tore aureos, tot ; et in castris
quos habeo, tot : et in numerato

quos habeo, tot.) He died without
altering his will, but after he had
cottVerted all that propei'ty to
other uses ; and the question was,
whether the legacy was due ? The
answer of Julian, the civilian,
was, that the testator intended
only to point out to his heirs, the
funds from which the legacy could
most easily be drawn, without in-
tending to annex a condition to a
pure gift, and that the legacy was,
consequently, to be paid. Dig. 30,
1. 96. De Legatis.

" The cases in the English books
turn on very refined distinctions
between a specific and a pure
legacj'. Thus, for instance, where
the testator gave to his niece 500
pounds, which Lady G. oioed him
by bond (Pawlet's case, T. Raym.
335) ; or where the testator enu-
merated his mortgages, bonds and
notes, and after giving an annuity
out of the annual interest, directed
his mortgages, bonds and notes,
stating the amount, to be vested in
trustees for charitable uses (At-
torney-General V. Parkin, Amb.
566) ; or where he gave XiOQpounds
for which he had sold his estate
that day (Garleret v. Carteret,
cited in 2 Bro. 114) ; or where he
gave the money arising on a bill
of exchange for 1500 pounds
(Coleman v. Coleman, 2 Vesey,
Jun. 639) ; in all these cases, the
receipt of the debt by the testator,
was held to be no ademption, be-
cause the legacies were considered
as pecuniary and not specific, not-
withstanding a reference was made
to a particular part of the estate,
as the part out of which the testa-
tor thought it most convenient

666

SPECIFIC LEGACIES. — ADEMPTION.

they should be paid. The courts
are so desirous of construing the
bequest to be general, that if there
be the least opening to imagine
the testator meant to give a sum
of monej"^, and referred to a parti-
cular fund only, as that out of
which he meant it to be paid, it
shall be construed pecuniary, so
that the legacy may not be de-
feated by the destruction of the
security.

" On the other hand, in the case
of 'a bequest of the intereet of a
bond of 3500 pounds, for life, to
B., and the principal, on her de-
cease, to G. (Ashburner v.
M'Guire, 2 Bro. 108); or where
the testator bequeathed the residue
(after deducting 500 pounds) of
the money owing to him by Sir H.
M. (Bider v. Wager, 2 P. Wms.
328) ; or 8000 pounds, the amount
of a banker's note (Ghaworth v.
Beech, 4 Vesey, 555) ; or the inter-
est of 300 pounds upon bond, to
the legatee for life, and after her
death he bequeathed over the prin-
cipal and interest (Juner v. John-
son, 4 Vesey, 568) ; or where he
gave all the stock he had in the
three per cents., being about 5000
pounds (^Humphreys v. Hum-
phreys, 2 Cox, 184) ; or the sum
or sums of money which his exe-
cutors m,ight receive on a note of
400 pounds {Fryer v. Morris, 9
Vesey, 360) ; in all these cases, the
legacies were held to be specific,
and a receipt of the money by the
testator an ademption of the legacy.
The reasoning on this subject is,
that if the legacy is meant to con-
sist of the security, it is specific,
though the testator begins by

giving the sum due upon it. A
legacy of a debt, unless there is
ground for considering it a legacy
of money, and that the security
is referred to as the best mode of
paying it out of the assets, is as
much specific as the legacy of a
horse, or any movable chattel
whatever. If the specific thing is
disposed of or extinguished, the
legacy is gone. Lord Thurlow
said, in Stanley v. Potter (2 Cox,
180), that the question, in these
cases, did not turn on the inten-
tion of the testator, and that the
idea of proceeding on the animus
adimendi had introduced confu-
sion. Where the testator gave a
specific chattel in specie, the
ademption follows, of course, on a
sale, or change, or destruction of
the chattel, and the ademption be-
comes a rule of law, and not a
question of intention. But I ap-
prehend the words of Lord Thur-
low are to be taken with considera-
ble qualification ; and that it is
essentially a question of intention,
when we are inquiring into the
character of the legacy, upon the
distinction taken in the civil law,
between a demonstrative legacy,
where the testator gives a general
legacy, but points out the fund to
satisfy it and where he bequeaths
a specific debt. In Goleman v,
Coleman, Lord Loughborough
puts the question of general or
specific legacy entirely on inten-
tion.

" But it is unnecessary to ex-
amine the decisions further on this
point. The present case, as to the
bank shares, is one to which the
doctrine of ademption applies. It

ASHBTJRNEE V. M A C G U I R B .

667

is impossible to mistalte the con-
struction of the will, or to con-
sider the legacy other than a spe-
cific one, and that being granted,
it follows, of course, that the
legacy was adeemed pro tanto, or
as far as the testator received the
dividends. And I think it is
equally certain, that the leg^acy of
the shares was not wholly adeemed,
or the legacy destroyed or extin-
guished by the variation of the
testator's interest in those shares,
owing to the dissolution of the
charter. The fund was varied,
and differently arranged, and di-
minished in value by operation of
law, but not destroyed, nor its
identity lost. In Backwell v.
Child (Amb. 260), a partner by
will bequeathed a certain propor-
tion of the profits of the partner-
ship, and afterwards the partner-
ship expired, and was renewed
with a variation as to the amount
of the interest of the partners ;
yet it was held, that the renewal
of the articles was not an ademp-
tion or revocation of the will. A
case still stronger and more analo-
gous, is that of Ashhurner v.
M' Quire, already mentioned. The
testator bequeathed to his sister,
for life, the interest of a bond,
due him, and he gave the princi-
pal, on her death, to her children.
The debtor became a bankrupt,
and the testator proved the debt
under the commission, and received
a dividend, and died. Lord Thur-
low decreed against the adminis-
trator and residuary legatees, that
the bond should be delivered to
tlie sister and her children, that
they might receive the future divi-

dends of the bankrupt's estate.
The legacy was considered adeemed
so far only as the dividend had
been received by the testator ; and
the chancellor held, as Lord Cam-
den and others had held before
him, that there was no ground for
a distinction between a voluntary
payment and one coerced by suit
or demand. In both cases, the
legacy of the debt, so far as pay-
ment had been made, was extin-
guished. But though the value of
the debt had become greatly im-
paired by the bankruptcy of the
debtor, and his estate had passed,
by act of law, into the hands of
trustees, to be distributed accord-
ing to prescribed rules, the legatee
was entitled to what remained of
the debt. Upon the same princi-
ple, the plaintiff, in this case, must
be entitled to the future dividends,
if any, upon the testator's ' right,
interest and property in the thirty
shares.' "

The case of Havens v. Havens,
1 Sandford Ch. 334, affords another
instance of the principle that a spe-
cific bequest will not be adeemed
by a change which leaves the
subject matter substantially the
same. In Havens v. Havens, the
testator bequeathed his stock in the
Firemen's Insurance Company
then amounting to one hundred
shares. After the making of the
will the Insurance Company be-
came insolvent, the whole of the
capital being exhausted in the
payment of the losses which had
resulted from a conflagration in
New York. The testator, then
filled up forty shares of his stock
by a new subscription under

663

SPKCIPIC LEGACIES. — ADEMPTION.

an act of Assembly conferring
the requisite authority, and suf-
fered the remaining sixty shares
to be issued to third persons. The
court held that the forty shares
passed by the bequest. It was as
much the same stock, as a ship is
the same after it has beeti repaired
or rebuilt piecemeal, although
there remains little or nothing of
the original stuff.

By statute in Kentucky, the con-
version of money or property which
has been bequeathed to one or more
of the heirs of the testator, into
property or things of a like or of a
different kind, is not an ademption
of the legacy or devise, but the
legatee shall receive the value
thereof unless a contrary inten-
tion appears in the will, or from
extrinsic evidence; Lilly v. Gurry,
6 Bush. 590 ; Wiekliff v. Preston,
2 Metcalf Ky. ns.

Under the revised statutes of
New York, a conveyance, settle-
ment, deed, or other act of a tes-
tator, by which his estate or inter-
est in property previously devised
or bequeathed by him, shall be
altered but not wholly divested,
shall not be deemed a revocation of
the devise or bequest of such
property, but said devise or be-
quest shall pass the actual estate
or interest of the testator which
would otherwise descend to his
heirs or pass to his next of kin,
unless an intention to revoke is
declared in the instrument which
makes the alteration ; R. S. chap.
6, title 1, sect. 39 ; Doughty v.
Stillwell, 1 Bradford, 309 ; 2
American Lead. Cases, 537, 5 ed.

It seems to have been held at one

period in England, that ademption
is a question of intention, depend-
ing on whether the alienation or de-
struction of the property was meant
to revoke the bequest, ante, 626,
and traces of this opinion are dis-
coverable in some of the decisions
in the United States. See Stout
V. Hart, 2 Halstead, 418 ; White
V. Winchester, 6 Pick. 48 ; Blake
V. Blake, 16 Georgia, 119. Agree-
ably to this view, his declarations
are admissible in evidence to show
that he regarded the legacy as still
in force, and meant that the lega-
tee should have an equivalent for
what he had lost. The weight of
authority is now conclusively that
when tliere is no subject matter to
which the intention expressed in
the will applies, the existence of
another or different intention can-
not be proved by parol consistently
with the statutes by which the
power of devising is regulated or
conferred. It follows that whether
the interest bequeathed is extin-
guished by a payment or release,
or alienated by a sale, ademption
will ensue as a legal inference, al-
though the testator did not desire
or intend such a result, and would
have guarded against it if he had
been better informed, or if time
and opportunity had permitted him
to make another will ; Barclay v.
Eainer, 5 Maddock, 208 ; Hope v.
Harmer, 9 Harris, 361 ; Black-
stone V. Blackstone ; Beck v. M^-
Oillis, 9 Barb. 35.

In Barclay v Rainer, 5 Mad-
dock, 208, the testator bequeathed
two policies of insurance on the
life of his wife to his executors in
trust to pay the annual premiums

ASHBURNER V. MACGUIRE.

669

SO long as she sLould live, and from
and after her decease to receive the
principal sums due thereon, and
after deducting the costs and ad-
vances to pay the sum of £500 to
his daughter Maria, and invest the
residue in the funds in trust for the
testator's nephew. The wife died
in the lifetime of the husband, who
received the amount of the insur-
ance, and it was held that the gift
had failed, although his expecta-
tion was disappointed by the event,
and he could not have declined
to receive the money, ante, 623.

The question whether payment
will adeem a specific legacy where
the creditor is insane and therefore
incapable of assenting, arose in
Hope V. Hai-mer, 9 Harris, 361.
Black, C. J. said, " that the dis-
tinction between the case where
the testator called in the debt and
that where the debtor paid it of
his own accord, was now finally
discarded, and that the test was
whetlier the subject remained in
specie at the testator's death."
Tried hj this rule, payment to the
committee of a lunatic was as com-
plete an ademption as any pay-
ment that could have been made to
the testator while his mind was
unimpaired, ante, 628.

Payment is nevertheless so far
a question of intention that it is
not until the money has left the
pocket of the debtor and reached
that of the creditor, that a demand
can be said to be satisfied neces-
sarily, and irrespective of design ;
and a change in the form of the
security or the substitution of one
security for another, will no more
adeem a bequest of a debt tlian it

will discharge a mortgage by wliich
the debt is secured ; Stout v. Hart^
2 Halstead, 418 ; Ford v. Ford, 8
Foster, 412; Anthony v. Smith, 1
Busbee Eq. 188; Gardner v.
Prinlup, 2 Barb. 83 ; 2 American
Lead. Cases, 264, 5 ed. For a like
reason a legacy of the stock of a
bank or railway company will not
be adeemed by the dissolution of
the corporation through the expira-
tion of its charter or from any other
cause, followed hy the appointment
of a receiver or assignee, and the
declaration of a dividend on the
capital which is not actually paid ;
Walton V. Walton, T Johnson Ch.
528. The principle is the same
when the efl'ects of the debtor are
transferred to an assignee in bank-
ruptcy or insolvency ; and it may
be said in general that so much of
a demand or chose in action as re-
remains outstanding will pass by
a specific bequest despite any
change of form or partial paj'ment.
In Ford v. Ford, 3 Foster, 212;
the bequest was as follows : " I
give and bequeath to my wife,
Mehitable Ford, all notes of hand
which are payable to me at the
date of this codicil." At that
time the testator held four notes,
signed by Samuel Hill as principal
and Jacob Hill as surety, but sub-
sequently surrendered them and
discharged the surety, and took four
notes from the principal secured
by a mortgage. The court held,
on the strength of the principal
case and of Walton v. Walton, that
the bequest was manifestly specific,
but inasmuch as the change of form
did not impair the identity of the
fund there was no ademption.

670

SPECIFIC LEGACIES.

■ADEMPTION,

" In Sheffield v. The Earl of Cov-
entry, 2 Russ.& Mylne. SlY ; " said
Gilchrist, C. J., " the testator gave
his son a legacy of " £20,000
in the joint stock of the an-
nuities, transferable at the Bank
of England, commonly called four
per cent, bank annuities." The
only four per cent, bank annuities
existing at the date of the will
were reduced by act of Parliament
to three and a half per cents. ; after-
wards, and before the testator's
death, a new stock of four per cent,
bank annuities was created. It
was held that the testator's inten-
tion could not be confined to the
four per cent, bank annuities ex-
isting at the date of the will, that
the will spoke at the testator's
death, and that the son was en-
titled to £20,000 in the then exist-
ing bank annuities.

" If the debt is lost or ex-
tinguished the legacy will fail.
But if it still subsist and al-
though in another form is sub-
stantially the same, there will be
no ademption, or only to the ex-
tent of the amount actually paid.
This conclusion was strengthened
by the analog}' of the cases which
established that although a mort-
gage will only cover the debt which
it was originally intended to secure,
and if that is paid or extinguished
cannot be kept alive by a parol
agreement, it will yet be valid so
long as the identity of the debt is
unchanged. In Davis v. May-
nard, 9 Mass. 242, a note secured
by a mortgage was given up and a
recognizance accepted for the sum
due, and this was held not to dis-
charge the mortgage. In Pome-

royy. Rice, 16 Pick. 22; a. feme
sole held a note secured by a mort-
gage ; after her marriage her hus-
band gave up the note and took a
new one, and this was held not to
discharge the mortgage. To the
same eflFect is the case of Watkins
V. Hill, 8 Pick. 522 ; In Dunham
V. Day, 15 Johns. Rep. 554 ; it was
decided that where a mortgage was
given as security for the payment
of promissory notes which are from
time to time renewed, the renewal
is not to be deemed an extinguish-
ment of the original debt so as to
affect the continuance of the se-
curity, or unless an agreement can
be inferred from the circumstances ;
Johnson v. Cleaves, 15 New Hamp.
332. This court adopted the same
principal in Elliott v. Sleeper, 2
New Hamp. 525. In the case of the
Bank v. Willard, 10 New Hamp.
210; a joint and several note was
given, secured by a mortgage
The note was surrendered and two
notes given signed by the debtors
severally. Ch. J. Parker, said in
pronouncing the judgment of the
court, " the debt has certainly not
been paid. If the taking of the
separate securities may operate as
a discharge of the former note, so
that no action could be maintained
on that, the debt itself has not
been extinguished. No money
has been paid nor anj- release given.
Nothing has been accepted in satis-
faction of the debt. It is a mere
change of the security and of the
evidence of the debt from a joint
and several note to two several
ones, so that the debtors no longer
stand as sureties to each other for
the proportion of each."

ASHBURNER V. MACGUIRE.

671

" In the present case the debt ex-
isting at the date of the codicil has
not been paid by the substitution
of the new notes and the mortgage
for the original notes. Its identity
has not been lost and nothing has
been accepted in satisfaction of it.
There is merely a change of the
security and of the evidence of the
debt from joint and several notes,
to notes secured by mortgage."

It results from the same princi-
ple, that a specific bequest of a
chose in action will not be adeemed
by the substitution of a third per-
son for the original debtor, because
the obligation remains although
transferred to other shoulders ;
Gardiner v. Printup, 2 Barb. 83 ;
Doughty v. Stilwell, 1 Bradford,
300, 309. Such is, in effect, the case
where, as in Walton v. Walto)^, the
charter of a bank expires, and tlie
assets pass into the hands of trus-
tees, or where a debtor is dis-
charged in consideration of Ms
assigning his effects for the benefit
of his creditors. In Gardner v.
Printup, a mortgagor, the mortga-
gee, and a purchaser of the
mortgaged premises, entered into
an agreement that the mortgagor
should be credited with the whole
of the purchase-money on the pay-
ment of part, and the execution
by the purchaser of a bond for the
residue, and the court held that a
bequest " of the proceeds " of the
mortgage was adeemed only to the
extent of the sum actually re-
ceived, and that the legatee was
entitled to the amount remaining
due and unpaid on the bond.

When, however, the effect of the
transaction is to extinguish the

demand bequeathed, ademption fol-
io ws as a legal con sequence,whether
the means are payment, a release,
or the acceptance of some new
thing in satisfaction. In Beck v.
McGillies, 9 Barb. 35, a mortgage
which had been specifically be-
queathed, was foreclosed, and the
premises sold to a third person,
who gave a new bond and mortgage
for the debt. The legacy was held
to be adeemed, although a memo-
randum was found among the tes-
tator's papers declaring that the
new bond and mortgage were but
a renewal of the old, and that
his intention was that they should
pass under the will. Harris, J.,
said that it was immaterial that
nothing was actually paid to the
testator, or received by him, be-
cause the original bond and mort-
gage were as much satisfied by the
foreclosure sale, as if the price had
been handed over to the mortga-
gee, and again loaned to the pur-
chaser. That the amount remained
outstanding in anew security upon
the same property did not vary the
legal aspect of the case, or operate
to save the legacy. The rule that
if a specific legacy does not exist
at the death of the testator, it is
adeemed, is inflexible, and prevails
without regard to the hardship
that may result from its appli-
cation.

In Kent v. Summerville, "I Gill
& Johnson, 265, the testator be-
queathed a bond to a third person,
and named the obligor as his ex-
ecutor. The latter assented to the
bequest, and delivered the bond to
the legatee, by whom it was sub-
sequently transferred for value to

672

SPECIFIC LEGACIES. ADEMPTION.

an assignee, who brought debt
against ttie obligor. Buchanan,
C. J., said tliat on the assent of
the executor to a specific legacy,
the legal title to it vested in the
legatee, who might maintain trover
or replevin, or where the bequest
■was of a bond or note, proceed to
recover the amount in the name of
the executor. Where, however, the
debtor was named as executor, the
bond was extinguished at common
law, and it became requisite for the
legatee to apply for relief to a court
of equity. By the statute law of
Maryland, naming a debtor as ex-
ecutor did not operate to extin-
guish any just claim which the
testator had against him, and it
was further provided that the
holder of a written assignment of
a chose in action for the paj^ment
of monej', might maintain an ac-
tion in his own name against the
debtor. The plaintiff was, there-
fore, entitled to judgment for the
amount of the bond. See Howell
V. Hoak, 4 Iredell Eq. 188.

There is no rule of law which pre-
cludes one who bequeaths a thing,
from also bequeathing that into
which it may subsequently be con-
verted, and this precaution should
be observed wherever it is desira-
ble to guard against the ademption
of the bequest. See Langdon v.
Astor, 1 Duer, 478. A bequest of
stocks may consequently be ac-
companied with a direction that if
they are paid off or sold before the
testator dies, the legatee shall be
entitled to the money or an equiv-
alent amount. Under these cir-
cumstances, a pecuniary is super-
imposed on a specific bequest, and

may take eflect if the other fails.
See Fontaine v. Tyler, 9 Price, 31.
But a bequest may, without ceas-
ing to be specific, be so worded as
not only to comprise the property
in its existing form, but notwith-
standing any modification which
it may subsequently undergo. It
is well settled, that a bequest of
the proceeds of debt will not be
adeemed by payment, and the
principle is the same where the
debt is bequeathed and its pro-
ceeds. What the testator means
to give under these circumstances,
is the fund, and the legacy will be
valid so long as that can be
traced and identified. See Gard-
ner V. Printup, 2 Barb. 88 ; Cor-
hin V. MilU, 19 Grattan, 438.
Doughty v. Stilwell, 1 Bradford,
300,309; Clark y. Brown, 2 Smale
& Giffard, 52 ; Spence v. Higgins,
22 Conn. 521 ; ante, 625.

In Clark v. Brown, 2 Smale &
Giffard, 524, the testator gave " one-
third part of whatever sum or
sums of money might arise and be
received from his claim " against
the estate of a deceased debtor, to
his son, another third part to his
wife, and the residue to his son-in-
law. The larger part of the claim
was subsequently paid to the tes-
tator, and invested in his name in
the public funds, and remained in
that form until his death. The
Vice Chancellor said that " the gift
was not of the debt, as such,
but of the money that would re-
sult from the recovery of the
debt. It did not therefore become
inoperative when the debt was
paid. Moreover, in the case of
Barker v. Rainer, 5 Maddox, 208 ;

ASH BURNER V. MACGUIRE.

673

2 Russell, 122; Sir John Leach,
bad adverted to a principle arising
in the civil law, that where a tes-
tator sets apart a specific sum re-
ceived by him, in order that it
may enure to the benefit of the
legatee, the doctrine of ademption
or extinction does not applj\"

The true ground for the decision
seems to be that the bequest was of
a fund, and that the acts of the tes-
tator were admissible in evidence,
as denoting his intention that the
continuity of the thing bequeathed
should be unbroken, or to speak
more accurately, as identifying
the amount standing in his name
in the funds, as that "which had
been derived from the collection
of the debt. See Warren v. Wig-
fall, 3 Dessaussure, 4^ ; Pell v.
Ball, 1 Speer Eq. 48 ; Spence v.
Higgina, 22 Conn. ; Doughty v.
Stihvell, 1 Bradford, 309.

In Spence v. Higgins, David
Spence, bequeathed to his wife " all
the furniture and property she
brought with her at our marriage.''
It appeared in evidence that she
then owned two promissory notes,
which were collected by her hus-
band and deposited in a savings
bank to her credit. He died some
ten years after the date of the will,
md it was held that the bequest
was specific, and not only passed
;he principal, but the interest that
lad accrued during his life. In
Warren v. Wigfall, 3 Dessaussure,
IT ; a bequest of the whole of the
)roperty that the testator's wife
lad brought on their marriage,
vas in like manner held to be a
pecific legacy. In the subsequent
!ase of Pell v. Ball, 1 Speer Eq.

VOL. II.-

-43

48 ; " the bequest was to niy be-
loved wife of all the property,
personal and real, that I have re-
ceived or maj' receive hereafter from
her father's estate," and the chan-
cellor was clearly of opinion that
this was a specific legacy of all the
assets which had come from the
source indicated in the will, so far as
they still existed in their then form,
but not as it would seem of the
property into which they had been
converted by the testator, during
his lifetime. '1 his decision was
reversed hy the Court of Errors
on the ground, that as all that the
testator had received through his
wife was in money, the legacy
must also be regarded as pecuni-
ary, although it would have been
specific if her fortune had consis-
ted of stock, slaves, machinery or
other chattels. The true method
in this case would have been to
treat the bequest as being of all
that the testator might possess at
his death, which could be traced
and identified as having been de-
rived from his father-in-law's es-
tate.

Although a bequest of a debt,
will not be defeated by payment,
where it apipears from tlie will that
the testator contemplated such an
event, and meant that the proceeds
should go to the legatee, yet the
rule does not apply, when the gift
is of what may bo collected after his
decease; Chase v. Lockerman, 11
Gill & Johnson, 185. In Fryer v.
Morris, 9 Vesey, 360 ; a bequest
" of all such sums as my execu-
tors may receive on a note given
to me by Messrs. Cross & Co.," was
accordingljr held to be adeemed

674

SPECIFIC LEaACIES,

ADEMPTION.

on proof that the note had been
paid to the testator during his life.
The distinction is obviously just ;
but this can hardly be said of
Galbreath v. Winter, 10 Ohio, 65 ;
where payment was held to be
an ademption, although the be-
quest was of '' all that may be col-
lected," and there were no apt
words to indicate that the testator
referred to what might be paid to
his executors, as distinguished
from what he might receive in
person.

Parol and Extrinsic Evi-
dence.— It is well settled that the
intention of the testator, should be
deduced not from the language of
the will alone, but from reading it
in view of the subject Biatter, and
with the aid of the light which such
a comparison afibrds. Wigram on
Wills, Part 1, pL 76, 96; Doe v.
llartin, 1 Nev. & Man. 524. This
is a general principle which applies
to wills in common with deeds,
and other written instruments, 1
Smith's Lead Cases, 495, 7 Am. ed. ;
2 Id. 256; Bainbridgev. Wade,\^
Q. B. 89 ; Ooldshede v. Swan, 1
Exchequer, 154. Fully to un-
derstand any writer, we must
look from his standpoint, and have
a competent knowledge of the
objects to which he refers. Doe v.
Hiscocks, 5 M. & W. 363, 368;
Osborne v. Osbornp, 24 Grattan,
893. Parol evidence is therefore
alwaj's admissible to identify tlie
property bequeathed, and ascertain
whether it answers the description
given in the will. Sec Fell v. Ball,
1 Speer Eq. 48 ; Goddard v. Wag-
ner, 1 Strobhart Eq. 1 ; Sticlcney
V. Dai (■,-•, 16 Pick. 18; Morton v.

Perry, 1 Metcalf, 446 ; Sehoood v.
Mildmay, 3 Vesey, 306 ; ante, 352.
Or as the rule is stated by Mr.
Wigram, " for the purpose of de-
termining the object of a testator's
bountjr, or the subject of disposi-
tion, or the quantity of interest in-
tended to be given by his will, a
court may inquire into every
material, fact, relating to the per-
son w'ho claims to be interested
under the will, and to the prop-
ertj' claimed, and to the circum-
stances of the testator, and of his
family and affairs, for the purpose
of enabling the court to identify
the person or thing intended by
the testator, or to determine the
quantity of the interest he has
given b}' his will ; " Wigram on
Wills, Part 1, sect. It ; Woohton's
Lessee v. White, 5 Maryland, 304 ;
Warner v. Miltenberg''s Lessee, 21
Maryland, 27 2.

Agreeably to another proposi-
tion of the same writer, even
where "■ there is nothing in the
context of a will to indicate that
the testator has used the words in
which he has expressed himself in
an 3' other than the strict and prim-
ary sense, but his words so inter-
preted ai-e insensible, with refer-
ence to extrinsic circumstances, a
court of law ma3' look into the ex-
ti'insic circumstances of the case
to see whether the meaning of the
words be sensible in any popular
or secondary sense of which with
reference to these circumstances
they are capable; " Pell v. Ball, 1
Spear Eq. 48, 86 ; Wigram on
Wills, Part. 1, Sect. 15; Doe v.
Hiscocks, 5 jM. & W. 363, 369.

These principles have been ap-

ASH BURNER V. MACGUIRE,

675

plied under a great variety of cir-
cumstances. In Selwood v. Mild-
may, 3 Vesey, 306,the testator gave
to his wife tlie interest and proceeds
of £1250 part of " my stock in the
four per cent, annuities of the Bank
of England." Itappeared from the
testimony taken before themaster,
that the testator's four per cent,
bank annuities had been sold
shortly before the making of the
will, and the proceeds reinvested
in the " Long Annuities." Sir R.
P. Arden, said, " that the case was
one of latent ambiguity, arising
from a mistake which the court
would rectify by a decree that the
legatee should have the £1250 out
of the general personal estate."

It has been said of this case,
" that it was a wrong application
of a correct principle ;'' Doe v.
Eiscocks, 5 M. & W. 363, 11.
This must be conceded if, as Sir
James Wigram contends, there was
" no correspondence or agreement
between the description in the will
and the subject intended. The
testator did not even imperfectly
describe the thing wliich he meant
to describe, but on the contrary,
as the evidence proved, described
one tiling when he meant an-
other ;" Wigram on Wills, part
1, pi. 132. But it may seemingly
be' ranged under the established
rule that ^^ falsa demonstratio non
nocet," where enough apjDears upon
the instrument to show the inten-
tion after the false description is
rejected ; 2 Smith's Lead. Cases,
468, t Am. ed. ; Miller v. Travis,
8 Bing. 244, 253; Richards v.
Humphreys, 15 Tick. 133 ; notes
to Ex parte Pye, post.

In Selwood v. Mildmay, the ef-
fect of the parol evidence was to
substitute another thing of a like
kind for that bequeathed ; but a
specific legacy may in the same
way be shown to be general, or a
general legacy specific ; White v.
Beatty, 1 Dev. Eq. 81, 320; White
V. Green, 1 Iredell Eq. 45 ; Boys
V. Willams, 3 Simons, 563 ; 2 Rus-
sell & Mylne ; Grockat v. C'rockat,
2 Peere Williams, 164, ante, 331,
350, 352. In the ease last cited,
£550 were bequeathed as being in
the hands of a third person. It
appeared in evidence that the tes-
tator had, before making his will,
received various payments on ac-
count, and the legacy was held to
be demonstrative, as the only rend-
ering of the language of the will
consistent with the interest to which
it referred ; ante, 625. See White v.
Oreen, 1 Iredell Eq. 45, for an ap-
plication of the same principle in
another form.

In like manner although money
is prima facie to be understood as
meaning cash, extrinsic evidence
may still be admissible to show
that what the testator had in view,
was certain promissory notes which
he had received for the purchase-
money of land sold shortly before
the execution of the will ; Morton
V. Perry, I Metcalf, 446. t^o a
will reciting that the testator has
given one thousand dollars by note
to his son, may take effect as a
pecuniary bequest of that amount,
although the note is invalid for
want of a consideration ; Lorimj
V. Sumner, 23 Pick. 28.

The weight of authority is, that
the testator's oral or written de

676

BEQUESTS FOR LIFE.

■C ONVERSION.

elarations cannot be received in evi-
dence as an aid to the interpreta-
tion of his will, or for the purpose
of ascertaining to what it refers ;
Clayton v. Lord Nugent^ 13 M. &
W. 200 ; Allen v. Allen, 18 How-
ard, 385 ; Mann v. Mann, 1 John-
son, Ch. 231 ; 14 Johnsqi:, 1 ; Grey
V. Sharp, 1 Mylne & Keeu, 509,
602, except in so far as thej' are part
of the res gestee, or where they are
evidence of some fact which would
be admissible if proved by other
evidence ; Preedy v. Holtom, 4
Adol. & El. T6 ; Herbert \. Beed. 16
Vesey, 481 ; or show that the lan-
guage of the will was habitually
used by the testator in a peculiar
sense ; Beaumont v. Fell, 2 Peere
Wms. 141 ; Doe v. Hiscocks, 5 M.

& W. 363, 311, 312; Clayton v.
Lord Nugent, 13 Id. 200, 201.
Where, nevertheless, a legal infer-
ence is drawn against the literal
interpretation of the will, the tes-
tator's declarations are admissible
to show that his meaning was in
strict accordance with what he
wrote ; and evidence of like kind
may then be adduced on the other
side ; notes to Ex x>arte Pye, post.
It is, moreover, a general if not
invariable rule, that an equity aris-
ing on parol and extrinsic evi-
dence, may be rebutted by the
means which are used to set it up ;
See Zeiter v. Zeiter, 4 Watts, 212 ;
Zeigler v. Eckert, 6 Barr, 13 ; 2
American Lead. Cases, 525, 5
ed.

[*320] *HOWE?;. EARL OF DARTMOUTH.

HOWE V. COUKTESS OF AYLESBURY.

MAY 23, 1803.

EEPOETED 7 VES. 137.

Conversion of Residue bequeathed to persons in Succes-
sion.]— General rule, that where fersonal prosper ty is bequeathed for
life, with remainders over, and not specifically, it is to be converted
into the Three per Ctnts., subject, in the case of a real security, to
an inquiry, whether it icill he for the benefit of all partits ; and the
tenant for life is entitled only upon that principle.

Bequest of personal estate not held specific merely from being combined
lu I th a devise of land.

William Earle op Strafford, by his will, dated the 25th of
October, 1774, gave his wife, Anne Countess of Strafford, all his
personal estate whatsoever (except the furniture of Wentworth
Castle) for her life, subject to the following outpayments and lega-
cies. He also left to her all his houses, gardens, parks, and
woods, and all his landed estates for her life; and afterwards all
his personal and landed estates to his eldest sister Lady Anne
Conolly for her life : and then to the eldest son of George Byng,
Esq. , and afterwards to his second, third, or any later sons he

HOWE V. EARL OF DARTMOUTH. 677

may have by the testator's niece Mrs. Bjmg ; and then to the
eldest son and other sons successively of the Earl of Buckinorham
by his niece Caroline, but all of them to be subject to the follow-
ing outpayments and legacies. He left his wife the sum of
15,000^., to dispose of for ever as she pleases, and the value of
500Z. -in furniture in Wentworth Castle of whatever sort she
chooses, else the whole furniture to be *hers, if she meets r*oni-|
with any difficulty in this disposition. He gave several L ^
legacies and annuities, and declared he would have all his debts
paid, and gave all his servants aj^ear's wages.

The testator died on the 10th of March, 1791. Anne Countess
of Strafford died in his life, on the 9th of February, 1785. Lady
Anne Conolly filed a bill for an account of the personal estate,
&c. By a decree made at the Rolls on the 17th of May, 1793, the
usual accounts were directed ; and it was declared that the plain-
tiff would be entitled to the interest of the clear residue of the
testator's personal estate during her life ; and an inquiry was
directed, who were the next of kin of the testator at the time of
his death.

The Master's report, dated the 7th of March, 1793, stated the
account of the personal estate, part of which consisted of the
followino; stocks and annuities, standins; in the testator's name at
his death: —

4.32o;. Bank Stock :

9572^. per annum Long Annuities ;

750/. per annum Short Annuities.

Under orders made in the cause, the sums of 15,000?. and 4000?.
had been paid in by the executors, and laid out in M. per cent.
Consolidated Annuities.

By a decretal order, made on the 7th of May, 1796, the balance
of the personal estate in the hands of the executors, and of the
interest, &c., was ordered to be paid into the Bank ; and that the
executors should transfer the 4320?. Bank Stock, the 9572/. per
Annum Long Annuities, and 750?. per Annum Short Annuities,
to the Accountant-General, in trust in the cause; and that the
said funds, when so transferred, should be sold with his privity ;
and that the money to arise by such sale should be laid out in the
purchase of 31. per Cent. Annuities, in trust in the cause, subject
to a further order ; and that the Master should appropriate a suffi-
cient part of the said Bank Annuities, when purchased, to answer
the growing payments of the several annuities ; and that, as any
of the annuitants should die, the funds appropriated *ie- r*q99-|
spectively should fall into the general residue, with liberty '- -^
to apply ; and it was ordered, that the interest of the residue of
the said Bank Annuities after such appropriation, and also the
interest and dividends of the said 4820/. Bank Stock, should be
paid to the plaintiff" Lady Anne Couolly for her life, and on her
death any person or persons entitled thereto were to be at liberty
to apply ; and after providing for the costs out of the balance of
the personal estate, and for the arrears of the annuities out of the

678 BEQUESTS FOR LIFE. — CONVERSION.

sum of 2067^. 6'. Id., the balance of the interest and dividends re-
ceived by the executors and ordered to be paid into the Bank, it
was ordered, that the- remainder should be paid to Lady Anne
Oonolly ; and also that 1846^. 9s. 7d., cash in the Bank, which had
arisen from interest of the funds in which part of the testator's
personal estate had been invested, should be also paid to her ; and
that the dividends of 24,619/. 4s. 10(/., 3/. per Cent. Bank Annu-
ities, in which the sums received by the executors from the per-
sonal estate had been invested, should from time to time be paid
to her during her life, and on her death any persons claiming to
be entitled were to be at liberty to apply ; and it was ordered,
that the executors should get in the outstanding personal estate,
and that so much thereof as should consist of interest, should be
paid to Lady Anne Conolly, and so much as consisted of principal
should be paid into the Bank, subject to farther order.

The Master's farther report, dated the 10th of December, 1796,
stated, that the Bank Stock and the Long and Short Annuities
had been sold, and the produce laid out in 3/. per Cent. Annu-
ities.

Upon the death of the plaintiff Lady Anne Conolly, the suit
was revived by her executors ; and the cause coming on before
Lord Alvanley, then Master of the Rolls, for farther directions on
the subsequent report, it was insisted, on the part of Mr. Byng,
that Lady Anne Conolly had received, for interest and dividends
accrued on the Bank Stock and the Long and Short Annuities,
and the produce thereof laid out in Bank 'dl per Cent. Annuities,
l-^on.j-i *large sums more than she was entitled to, if those funds
'- -^ had been sold, as they ought to have been immediately
after the testator's decease, and the produce invested in a perma-
nent fund, viz , the SI. per Cent. Consolidated Bank Annuities.
The Master of the Rolls directed inquiries with reference to that
question between the executors of Lady Anne Conoly and Mr.
Byng, and the other parties interested in the residue of the per-
sonal estate ; with liberty to present a petition to re-hear the order
of 1796, as to the payments thereby directed to be made to Lady
Anne Conolly.

The re-hearing was argued before Lord Rosslyn, but no judg-
ment was given.

Mr. Mansfield, Mr. Lloyd, Mr. W. Agar, Mr. Wingfield, Mr.
Sergeant Pahner, Mr. Bell, and Mr. Richards, for different parties,
in support of the petition of re-hearing.

The tenants for life of such funds as Bank Annuities, carrying
a higher interest, and Long and Short Annuities, wearing out
rapidly, are not entitled to the enjoyment of them in specie ; but
there is a standing rule of the Court, for the benefit of all parties
interested, that those funds shall be laid out in the more equal
fund, the 3/. per Cents. .\o party ought to suffer by the circum-
stance, that what ought to have been done, and what the Court
would have directed to be done, immediately on the testator's
death, was not done. The state of this question is, that the late

HOWE V. EARL OF DAKTMOUTH. 679

Lord Chaucelor went out of office without having delivered any
opinion upon the point ; and Lord Alvanley though he could not
decide against the order of the Lord Chancellor ; supposing his
Lordship to have been of opinion, that there was something par-
ticular in this will, upon the distinction between the gift of a
general residue for life, with retnainder over, and a specific be-
quest of this sort of property' ; in which case it could not be sold,
and the dividends follow, of course, from the death of the testator ;
even the rule, that takes place in general legacies, postponing the
payment of interest to the end of *a year from the death, r*Q94-|
not attaching upon it. But there is nothing specilic in L " -■ J
this will. This is a mere gift of the residue of the personal estate
for life, subject to the payment of debts, legacies, and animities.
Under every such will, the Court has always sold this sort of
property, if there was any wearing out fund, not specifically given,
or to any fund as to which the tenant for life had an advantage
over those in remainder.^ This is to be fonnd in every decree;
and is so familiar, that no report of such case is to be met with in
print. Cranch v. Granch f Powell v. Cleaver,^ and other cases, have

■ Gibson V. Bitt, 7 Ves. S9.

2 James Cranch, by his will, dated the 02nd of June, 1701, after several lega-
cies to his children, gave the residue of his mon^v. lands, tenements, good-f,
chattels, or estates, to his wife for life, and after h r death to be equally divided
among his children who should be living ; and appointed his wife executrix

Decree for an account, such part as was alrea Iv investsd in Government secu-
rities was to be transferred to the ,-VcoountantGineral ; and the executrix
admitting that B943Z. 13s. 9d 5Z. per Gent. Ba)ik A.nuuities was standing in her
name, it was ordered, that the same should be transferred, &c., and the divi-
dends paid to her for life ; with liberty for the plainfcitt■^ to apply at her decease.

The Master's report, dated the 11th of July, l7t)7, staled, that the personal
estate consisted of leasehold premises

By an order, dated the 34th of July, 1797, it was. among other things, ordered
that the 51 per Cent. Bank Annuities, should bi^ sold, and the money laid out
in SI. per Cent Annuities, the interest 1 1 be pairl to her for life, with liberty
to the parties interested in the residue after hei- dr'ath to apply. An inquiry
was directed, whether it was for the heuefit of tlie persons entitled ti the clear
residue of the personal estate to hive the leasehold premises sold ; and, if it
would be for their benefit, it was ordered, that they should be sold ; and that
the money should Oe laid out in the -H. per Cents ; the divide. ids to be paid to
her for life ; with liberty to apply after her death.

^ John Powell, by his will, dated the Sth of August, 177"), devised all his
manors, and real estate to Cleaver and others for ninety-nine years ; remainder
to Arthur Roberts and his tlrst and othor sons in tail ; remainder to William
Roberts and his first and other sons in tail male ; remainders over ; and he
directed his trustees, whom he also appointed his execut ^rs, to lay out the
residue of his personal estate m the purchase of lands, to be settled to the same
uses.

The bill was filed by the first tenant for life, and the usual decree was made.
By an order dated the -Ust of January, 17-*8, !\^2l. Hs. fld. Long Annuities, and
3000Z. India Stock, standin ; in the testator's name at his decease, were directed
to be sold, and the produce laid out in 'il per Cent Annuities ; and as to
33,610?. Bank 4Z per Cent. Annuities, and 2^,8972 Bank .li. per Cent. Annui-
ties, an inquiry was directed, whether the fund of the testator's estate would be
in a better condition by selling the same and investing the produce in dl. per
Cent. Annuities ; and the Master certifying that it would, an order was made
on the 31st of .May, 1788, for the sale of those funds, and investing the produce
in the Zl. per Cents.

i-lizabeth Ho»dley by her will bequeathed the residue of her personal estate

680 BEQUESTS FOR LIFE. CONVERSION.

been selected, proving the invariable rule to sell Bank Stock, Long
and Short Annuities, lenses, &c., when the Court is informed by
the record of the nature of the property. The consequence is, the
residuary 1 gatee is not entitled to anything till the debts and
legacies are paid, and the residue ascertained. An objection has
frequently been made by an annuitant, when the executor has de-
r^qoK-i sired to pay the *fund into Court, that it would stop the
L - interest. But an executor makes those payments at his
peril. The Court has sometimes ordered the interest to be paid
to the tenant for life; but that must be considered to have been
without prejudice. In the instance of a Short Annuitj', the
tenant for life would wear out the thing. Some certain rule must
be established. The rights of the parties must be the same as if
the testator had converted the property immediately before his
death. That or some other definite time must be fixed by the
Court. It cannot depend upon the account, the acting of the ex-
ecutor, &c. The possibility of collusion between the tenant for
life and the executor must be attended to. Suppose the executor
was himself tenant for life.

Mr. Romillu and Mr. Tnme.r^ for the executors of Lady Anne
Conolly, in support of the decree.

The first question is, whether Lady Anne Conolly was entitled
to the annual produce of the personal estate at the death of the
testator ; if not, the next consideration is, whether, the executors
having paid it to her, and particularly the dividends of the Bank
Stock, those payments ought to be called back.

The personal estate is given to her for life specifically. As
this disposition is expressed, it is the same as if the testator had
enumerated the particular articles, of which the personal estate
consisted. He has not given his personal estate to his executors,
in trust to sell, &c., and that what remains shall be given to those
persons : but he has given the personal estate to them specifically,
as he has given the land. The Lord Chancellor considered, that
there was nothing in the will, which made it necessary for the
executor to convert this property into any other fund. For many
purposes a bequest of all the personal estate is considered specific ;
lor instance, upon the question of exoneration, where there is a
charge of debts. There is no doubt of the general rule: but this
question does not depend upon it. In the case put by your Lord-
ship, of a njan having an annuity for the life of A., and bequeath-
r*3261 ^'^» '^'^ personal estate to A. for life, remainder *to his son,
'- -' there was a clear intention that it should be sold. But
suppose he had expressly described the annuity, however absurd,

to Dr. Ashe for life, and after his decease to be divided among his children : to
the sons ai the age of twenty-one ; to the daughters at that age or marriage.

All order was made, tliat I l.sOOJ. Bank 5Z per Cent, Annuities should be old
and the produce laid out in the 3/. per Cents.

Similar orders were made as to 5^ per Cent. Annuities iu Chanoey v. Rees,
Peppin V. Lovewell, and Dagley v. Leake ; and in G/iffiths v. Grieve, as to 4J.
per Cent. Annuities. See Banhelomon v. Solioley, as to Short .Annuities.

HOWE V. EARL OE DARTMOUTH. 681

it must be considered specific. If the only property was 40?.
a-year, barely sufficient for a maintenance, and clearly intended for
that purpose, upon this principle the rule must extend to that
case. The rule is founded in convenience ; but there is no fixed
principle, that executors are bound of necessity to make the con-
version at the testator's death, or any given time afterwards. The
executor ought not to change a permanent fund producing, a
larger interest to another producing a smaller, if such conversion
is not required for the payment of debts. The habit is to do it
when th'j executor is called into this Court, not where he is not
called upon, and no question is raised. If he is liable to question
for not doing so, it must be upon the principle of devastavit.
The consequence will be, that there will be no possibility of ex-
ecuting a will without the direction of the Court, if, though not
called upon by the remainder-man, he must do it at is own peril
immediately. No given period has been ascertained, after which
the remainder-man shall have a right to call upon him. The
Court makes the conversion, but does not consider the executor as
having done wrong in not having converted. No instance can be
found, where it has come into Court several years after the death,
and the executor has been charged. The period of the conversion
in this instance at all events ought to be, not the time of the tes-
tator's death, but the year 1796, when the order was made; for
it was competent to them to call upon the executor at a prior
time.

The second question is of considerable novelty, as to what is to
be done with the dividends received, particularly upon the Bank
Stock. With reference to the T5ank Stock, as distinguished from
the Annuities, no case has established that the executor had done
wrong by paying to the tenant for life the interest of some perma-
nent fund, though producing more than if the property was in-
vested in the Bl. per Cents. ; and to make this part}' *ac- r^ontr-i
count for what she has received, that proposition must be '- -'
made out. This must have often occurred. A considerable part
of the property might have been out upon securities a 5L per cent.
If the tenant for life, to whom the interest was JDaid by the ex-
ecutor, died insolvent, would that be a devastavit ? No such
decree was ever made. Upon that hypothesis it would be necessary
for the executor immediately' to call in all the securities. Bank
Stock, India Stock, mortgages, &c., and to invest the whole in 3?.
per Cents.

The Lord Chancellor [Eldon] desired the counsel in reply not
to trouble himself upon the point whether the bequest was spe-
cific, and to advert to the Bank Stock.

Mr. Mamjielil, in reply. — [u this respect there is no difference
between the Bank Stock and the Annuities. The price is per-
fectly accidental, and is never considered. The Court says, first,
Bank Stock is the stock of a trading company, not a government
fund, secured by the Legislature. The former also produces a
high dividend, and is therefore more liable to fluctuation and

682 BEQUESTS FOR LIFE. CONVERSION.

uncertainty. For these reasons, this Court never suffers those
funds to remain which are considered hazardous, and, to a certain
extent, wasteful. The tenant for life cannot have any more
right to advantage in the shape of that large dividend, than of
Long and Short Annuities. The Court goes further, ordering
.the conversion of 4/. per Cents., a government fund, probably on
the principle that they are liable to be redeemed, and not so per-
manent a fund. With respect to refundinsr, these are trustees.
Their conduct cannot affect the rights ; and it happens that there
are dividends now due to Lady Anne Conolly in Court, which,
if the decision is against her, the executors have no objection to
apply to the refunding, if it is to take place. If an executor had
ignorantly and honestly made the payment, the Court would be
unwilling to call upon hira ; but is there a doubt that the person
receiving the payments would be called on ? In a few years more
these Short Annuities will expire. Suppose the whole property
r*a9Q-| 'w^s in these circumstances. It does not very ""'frequently
^ ^ -i happen that any payment is made upon the residue
before the interference of the Court, which prevents this accident.
Several orders may, however, be found. In Hnhler v. Holder,^
an account was directed of all the excess that had been received
of Short Annuities beyond 4?. per cent.

Lord Chancellor Eldon. — No question arises upon this will,
except whether this is a specific bequest of such personal estate as
was the testator's at the time of -his death. Lord Rosslyn is
represented to have had considerable doubt whether it was not
specific ; and if it is, I agree, not only Lady Anne Conolly, up to
the date of the decree, but afterwards, and Mr. Biug and the
other persons in remainder, must take the specific produce of
what is specifically given. But if it is so to be considered, the
decree is not correct, considering the bequest specific to the date
of that decree, and no longer. It is wrong, therefore, in any way.

Upon the question, whether this is'specific, it must be either
upon the words describing the personal estate, or upon the con-
struction of those words, coupled with the devise of all his landed
estates.

With respect to the latter, every devise of land, whether in
particular or general terms, must of necessity be specific, from
this circumstance, that a man can devise only what he has at the
time of devising. Upon that ground, in a case at the Cockpit, it
was held, that a residuary devisee of land is as much a specific
devisee as a particular devisee is.

But it is quite different as to personal estate. The question
must be, did, he mean to dispose of w/iaf he hid at the date of the wdl,
or of that which he should have at his death P If he meant the for-
mer, then every part of that identical personal estate, which is
disposed of between the date of the will and the death, is a legacy

' In Chancery, May, 1789.

HOWE V. EARL OF DARTMOUTH. 683

adeemed : pro tanto it is gone. If the question is, whether those
subjects, to be acquired between the date of his will and his death,
should pass, I cannot say he did *mean that. If not, it r*-)oq-|
can only be specific thus: that the persons to take the '- ^
personal estate he should have at his death in different interests
should enjoy it as he left it.

Not one word of this will goes to that. It is given as " all his
personal estate ; " and the mode in which he says it is to be
enjoyed, is to one for life, and to the others afterwards. Then,
the Court says, it is to be construed as to the perishable part, so that
one shall take for life, and the others afterwards ; and unless th" tes-
t'ltor diverts the mode, so that it is to continue as it wis, the Court
understands that it shall be put in such a state, that the others may
enjoy it after the decease of the first ; and the thing is quite equal ;
for it might consist of a vast number of particulars ; for instance,
a personal annuity, not to commence in enjoyment till the expi-
ration of twenty years from the death of the testator, payable
upon a contingency, perhaps. If, in this case, it is equitable that
Long or Short Annuities should be sold, to give every one an
equal chance, the Court acts equally in the other case ; for those
future interests are, for the sake of the tenant for life, to be con-
verted into a present interest, being sold immediately, in order to
yield an immediate interest to the tenant for life. As in the one
case, that in which th". tenant for life has too great an interest, is
melted for the ben' fit of the rest ; in the other, that, of which, if it re-
mained in specie, he might never re eive anythinq, is brought in, and
he has immediately the interest of its present loorth.

As to the annuity charged upon this estate, the tenant for life,
if entitled to the whole, would be properly paying out of the
aggregate property the annuities. But it would be great injus-
tice to those in remainder, if these capital sums were paid out of
that part of the bulk of the property which does not consist of
perishable interests, and were not to be thrown in proportion
upon the perishable part. The ordinary rule of apportioning re-
quires, that, in some degree, a provision should be made out of
those, the Short Annuities, if they remain, and not out of the 3^.
per Cents, only.

*The cases alluded to, where personal estate has been r-jtoort-i
taken to be specifically given, do not apply. First, where '- -■
a residuary legatee takes it [the residue] as a specific gift, not
subject to debts, the inference, that he is to take that personal
estate, is not made, in general cases, upon the bequest of all the
testator's personal estate, but upon the efltect of that, connected
with what arises out of other parts of the will, with regard to
the intention to fix upon other funds charges that would pri-
marily fall upon that fund ; and that must be made out, not by
conjectures, but by declaration plain, or manifest intention.'
That is the principle upon which it is agreed these cases are to

' See Ancaster v. Mayer, ante, Vol. 1, p. 630, and note.

684 BEQUESTS FOR LIFE. — CON VERS I ON.

be construed ; and the intention has never been considered mani-
fest merely from a disposition of the personal estate in the same
clause with land ; which must be taken to be specifically given.
But those cases do not go the length, that, if the enjoyment is
portioned out in life interests, with remainders over, it is specific,
I am clearly of opinion, therefore, that this is not a case in which
the personal estate is in this sense specifically given, with a
direction that it shall remain specifically such as it was at the
testator's death ; and the purposes for which it is given are those
for which it is admitted there is a general rule, that these perish-
able funds are to be converted in such a way as to produce capital
bearing interest.

I was astonished when that was doubted. From general
recollection, I had considered the practice to be, that the first
moment the observation of the Court was drawn to the fact, the
Court would not permit property to he laid out, or to remain
upon such funds, under a dii'ectiou to lay it out in government
securities, but would immediately order it to be converted' into
that which the Court deems, for the execution of trusts, a govern-
ment security.

I pass over what has been said as to real securities ; for there
is a great difference between real securities, or Bank Stock, for
instance, and government securities. Bank Stock is as safe, I
r^oq-i-] trust and believe, as any government *security ; but it is
L -■ not government security; and therefore this Court does
not lay out, or leave, the property in Bank Stock ; and what the
Court will decree, it expects from trustees and executors ; I will
not state what the Court would do, where executors had not
made these conversions. That depends upon many circumstances.
But I abide by Lord Kenyon's rule in the case of Mr. Champion,
an executor, before which time it was doubted whether an execu-
tor could lay out the property in the 3^. per Cents. Lord Kenyon,
who was a repository of valuable knowledge, produced a dictum
of Lord Xorthington, that the Court would protect an executor
in doing what it would order him to do. The Court in this case
would order him to do that.

It is not so in the case of a mortgage. The Court would not
permit a real security to be called in without an inquiry, whether
it would be for the benefit of every person ; and it is accident
that some part of the assets will produce more interest than a
genuine trust security. In some instances, there is little doubt, it
may be not only for the benefit of the tenant for life, but for the
substantial interest of the remainder-man, that the property
should not be shifted from a good real security.

The question then is, whether the Court will change the fund,
not as between the remainder-man and the executor, but in a
question between the tenant for life and the remainder-maii ; and
the question with the executor cannot well arise, so as to be acted
upon, till a failure by the tenant for life, or those who represent
him ; for the justice of the case, if the tenant for life has received

HOWE V. EAEL OF DARTMOUTH. 685

SO much, would be, that he should bring it back in case of the
executor, who paid him. If the rule is, that the fund shall not
remain, it is impossible to say, the date of the decree shall decide.
I do not like to put it upon the possibility of collusion ; but that
is not to be totally neglected, for it may happen, that the execu-
tor himself may be the tenant for life, and then he has an interest
in delay. Of necessity there must be a great delay, before
*there can be a final decree in a cause of great property, r*qqo-|
and it may be very much protracted where there is an '- ' -^
interest. However, 1 do not put it upon that. But if the principle is,
that the Court, when its observation is thrown upon it, will order
the conversion, it ought to be considered, to all practicable pur-
poses as converted, when it could be first converted. That is the
genuine inference from the other principle. If the Court has
ever attended to the difficulties often thrown before it, with
regard to perishable property of other kinds, as leasehold estate,'
&c., it never has as to stock. You can learn the price at which
it might be converted on any day, and the moment the Court
was ordered by the Legislature to lay out its funds in stock, it
necessarily held, that for this purpose stock must always be con-
sidered of the same value. It is for the benefit of the creditor
that it should be thrown into a lasting fund ; and it is equal to
all the parties interested. As to 13ank Stock, the Court has
ordered Al. per Cents, and 5/. per Cents, to be sold and converted
into '61. per Cents., upon this ground, that, however likely, or not,
that they may be redeemed, the Courts look at them as a fund
that is not permanent, though it may remain for ever ; and con-
siders, that from that quality, there is an advantage to the present
holder, who gets more interest, because they are liable to be re-
deemed.^ I do not know whether the reasoning is as just in
practice as it is in theory. Property cannot be laid out by this
Court in Bank Stock in the execution of a trust to lay it out in
government securities, for it is not a government security. Con-
verting that, therefore, the executors would have done what this
Court would have ordered, and that falls under the same consid-
eration, and the advantage, if any, ought not to accrue to the
tenant for life. The account, therefore, must go as to that, as
well as the Long and Short Annuities, from the time at which it
would have been ^converted, if the observation of the Court r^ooo-i
had been drawn to the fact that the executors icere possessed of '- J
those funds.

This petition of rehearing is therefore well founded.

' Gibson v. Bott, 7 Ves. 89.

^ In a recent case, however, an executrix, ■who was also tenant for life unrler
a wjU directing the resiciuary estate to be sold, and the proceeds invested in
government or other good security, was held not to be personally liable for not
converting into Consuls a sum ot Navy £5 per Cent. Annuities loimiug part of
the residuary estate : Biiud v. Fardell, 7 De G. Mac. & 6. 628. And see now
22 & 23 Vict. c. 35, s. 33; and 33 & 34 Vict. c. 38, ss. 11 & 13, and General
Order of Feb. 1801 ; and Hume v. Richardson, 81 L. J. N. S. (Ch.) 713 ; and see
note to Bi-ice v. Stokes, post.

686 BEQUESTS FOK LIFE. CONVERSION.

Where propertj^ of a perishable or wasting nature, such as Long
Annuities or leaseholds, is given to persons in succession, an important
question arises, whether it is to be converted into other property of a
permanent nature, so as to insure the enjoyment of it by every person
successively, or whether it is to remain in specie unconverted, leaving
to those in remainder only a chance of enjoyment, or at all events of
taking the property much diminished in value. It was decided by
Lord Eldon, in the principal case, which appears to be the first repor-
ted case in which the subject was thoroughly discussed, that, as a gen-
eral rule (and in the absence of any express or implied intention of the
testator, that it is to be enjoyed in specie), perishable propeity is to be
converted in such a way as to produce capital bearing interest, and put
in such a state that the others may enjoy it after the decease of the
first.

Upon the same principle. Lord Eldon lays it down, that reversionary
property (a personal annuity, for instance), not to commence till the ex-
piration of twenty j^ears from the death of the testator, or payable on
a contingency, given to persons in succession, ought to be similarly
converted. " Jf, in the one case," observes his Lordship, "■ it is equita-
ble, that Long or Short Annuities should be sold, to give every one an
equal chance, the Court acts equally in tlie other case ; for those future
interests are, for the sake of the tenant for life, to be converted into a
present interest, being sold immediately, in order to yield an immedi-
ate interest to the tenant for life. As in the one case, that in which the
tenant for life has too great an interest, is melted for the benefit of the
rest ; in the other, that of which, if it remained in specie, he might
never receive anything, is brought in, and he has immediatelj' the inter-
est of its present worth." Ante, p. 329. And gee the remarks of Lord
Brougham in Prendergast v. Frendergaat, 3 H. L. C. 218 ; Wighluivk
V. Lord, 3 Jur. N. S. 699; S. G. nom. Lord v. Wightwick, 4 De G.
Mac. & G. 803; Johnson v. Routh, 3 Jur. N. S. 1048, 27 L. J. (Uh.)
305 ; Countess of Harrington v. Bir William Aiherton, 2 De G. Jo. &
Sm. 352.

" Very nice distinctions," observes Lord Cottenham, " have been

taken, and must have been taken, in determining whether the tenant for

life is to have the income *of the property in the state in which
r*3341 1 1 J

L J it is at the time of the testator's death, or the income of the

produce of the conversion of the propcj'ty. The principle upon which
all the cases on the subject turn is clear enough, although its application
is not always very easj'.

" All that Hoioe v. Lord Dartmouth decided — and that was not the
first decision to the same effect — is, that where the residue or bulk of
the property is left en masse, and it is given to several persons in suc-
cession as tenants for life and remainder-men, it istlie duty of the Court
to carry into effect the apparent intention of the testator. How is the

HOWE V. HARL OP DARTMOUTH, 687

apparent intention to be ascertained, if the testator has given no par-
ticular directions ? If, although he has given no directions at all, yet
he has carved out parts of the property to be enjoyed in strict settle-
ment by certain persons, it is evident that the property must be put in
such a state as will allow of its being so enjoyed. That cannot be,
unless it is taken out of a temporary fund, and put into a jjermanent
fund.

" But that is merely an inference from the mode in which the prop-
erty is to be enjoyed, if no direction is given as to how the property is
to be managed. It is equally clear, that if a person gives certain prop-
erty specilically to one person for life, with remainder over afterwards,
then, although there is danger that one object of his bountj- will be de-
feated by the tenancy for life lasting as long as the property endures,
yet there is a manifestation of intention which the Court cannot over-
look.

" If a testator gives leasehold property to one for life, with remain-
der afterwards, he is the best judge whether the remainder-man is to
enjoj'. The intention is the other way, so far as it is declared ; and the
terms of a gift, as a declaration of intention, preclude the Court from
considering that he might have meant that it should be converted.

" Those two kinds of cases are free from difficulty ; but other cases of
very great difficulty may occur, in which it may be very doubtful
whether the testator has left property specifically, but in which there are
expressions which raise the question, whether the propertjr is not to be
enjoyed specificallj' ; for, as the Master of the Rolls appears to have ob-
served in the present case, the word ' specific,' when used in speaking of
cases of this sort, is not to be taken as used in its strictest sense, but
as implj'ing a question whether, upon the whole, the testator intended
that the property should be enjojed in specie. Those are questions of
difficulty, because the Court has to find out what was the intention of
the testator as to the mode of management, and as to the mode
of enjoj-ment : " * Pickering v. Pickering^ 4 "Sly. & Cr. 298. ^ ' -'

The result of the rule laid down by Lord Eldon, in Howe v. Lord
Dartmouth, and by Lord Cottenham, in Pickering v. Pickering, ap-
pears to be, that where personal estate is given in terms amounting to
a general residuary bequest, to be enjoyed by persons in succession,
tlie interpretation the Court puts upon the bequest is, that the persons
indicated are to enjoy the same thing in succession ; and in order to
efi'ectuate that intention, the Court, as a general rule, converts into
permanent investments so much of the personalty as is of a wasting
or perishable nature at the death of the testator, and also reversionary
interests. The rule did not originally ascribe to testators the inten-
tion to effect such conversions, except in so far as a testator may be
supposed to intend that which the law will do ; but the Court, finding
the intention of the testator to be, that the objects to his bounty shall

BEQUESTS FOR LIFE. — CONVERSION.

take successive interests in one and the same thing, converts the prop-
erty, as the only means of giving effect to that intention : Per Sir J.
Wigram, V. C, 3 Hare, 611.

A few instances may be given of the application of the rule laid
down in the principal case.

In Fearna v. Young, 9 Ves. 549, the testator bequeathed to his wife,
the interest of one-half of his property during her life, with liberty to
dispose of one-half of the said half as she might think proper, at her
decease ; the other half of that half should devolve at her decease to
Ms daughter ; and the other half of his said property he bequeathed
to his said daughter. The testator was a member of a partnership,
the term of which expired thirteen months after his decease, and his
proportion of the profits during that time amounted to the sum of
20101. 13s., which, according to the articles, was payable, one-half at
the end of one year, and the other at the end of two years after the
termination of the partnership. Lord Eldon allowed an exception to
the Master's report, who had allowed the claim of the widow to 1035?.
6s. 6d., a moiety of the sum of 2070?. 13.s. as being due to her in the
nature of interest money accrued due after the death of the testator.
" The rule,'' said his Lordship, " as to personal estate, is, that what is
not specifically given, and consists of an interest wearing out, or an
interest at present saleable, but in point of enjoyment future, the whole
is converted into money in a question between the tenant for life and
the remainder-man ; and, though the general rule as to legatees is to
give interest from the end of one year from the death, I have seen a
great variety of decrees, directing inquiries, how much of the fund
had arisen from interest, and how much from *capital ; in order
'- -J to determine between the tenant for life and the remainder-man.
In this case, it is impossible to say the widow is to have nothing in the
nature of interest upon the capital so formed at the end of thirteen
months, on account of the times of paj-ment at the end of two and
three years ; for it is clear, if the testator had died possessed of a bond,
by the condition of which the money had been secured to him, to be
paid in two and three j'ears after his death, without interest, between
the tenant for life and the remainder-man, a value must have been set
upon at that time, and of its present worth, at least the tenant for life
would be entitled to interest. It is like a lease, to commence at the
end of one or two years afterwards ; but it is saleable immediately, and
the sum produced would be a capital ; the interest of which, from the
end of one year, at least, ought to go to the tenant for life.

" In this case, then, the balance being ascertained at the end of thir-
teen months, the tenant for life must at least have interest upon such a
sum as was at that time the value of the sum so ascertained ; regard
being had to the fact of the payment in moieties at the end of one and
two years from that time. As to the year in which the profit was

HOWE V. EARL OP DARTMOUTH. 689

making, there is great difficulty ; but, if the rule is, that between tenant
iorlife and remainder-man, the former is entitled to whatis actually pro-
duced, as interest from the death, it would be yqvj hard upon the widow,
that as it was employed in trade, and making a great deal more than i
or 5 per cent., she shall not have either the profit or the interest. It is
fair, that, if he bound himself to leave his capital in a trade, for the
purpose of increase, still the value of the capital at the death, with the
additional capital, whatever it might be ultimately, in consequence of
being so employed, should yield an interest. It is not very well set-
tled, whether the tenant for life is entitled to the interest from the
death, or from a year afterwards. Baron Thompson once told me,
that the first payment of an annuity was made at the end of a year,
and so I took it ; but, at that time, the opinion of several of the Mas-
ters was, that it was not to be paid until two years ; and an annuitant
is no more than tenant for life or part of the capital.

'' In this case, I think, the defendant ought to have from the death,
to the termination of the partnership, interest at a given rate, and not
the profit ; and then, at the end of the partnership, the capital, by the
articles, was a dead fund, in moities for one and two j'ears ; but she is
not, therefore, to be deprived of interest upon it, but is entitled to in-
terest upon the capital, though dead, with reference to the circum-
stance, that one-half is not to be collected till the end *of one
year, the other not till the end of two years, calculating what '- -'
was then the value of the sums respectively ; for instance, the value of
lOOOL, payable at the end of one year, and another sum of lOOOZ., pay-
able at the end of two years. The exception, therefore, must be allowed ;
and the minutes must be arranged upon that pjinciple."

In Mills V. Mills, Y Sim. 501, the testator gave all his freehold and
leasehold messuages and hereditaments, ready money,, securities for
money, stock in public funds, goods, chattels, and effects, and all other
his real and personal estate and efl'ects, to trustees, in trust to pa}' the
rents of his freehold and leasehold estates, and the dividends, interests,
and proceeds of his money in the funds and other his said personal
estate, to his daughter for life; and after her death, to stand possessed
of his said freehold and leasehold estates, money in the funds, and all
other his said real and personal estate, for the children of his daughter.
The testator, at the date of his will, and at his deatli, was possessed of
leasehold estates, turnpike securities. Bank Stock, and other personal
estate. It was held by Sir L. Shadwell, V. C, that the bequest to the
trustees was a general residuary bequest, and that the leaseholds and
Bank Stock ought to be sold, and the proceeds invested in the Three
per Cents. ; and an inquiry was directed whether the turnpike securi-
ties were real and permanent securities.

In Fryer v. Butter, 8 Sim. 442, the testator gave to M. W. an an-
nuity of iOl. for life, payable out of his Long Annuities ; and directed,
VOL. II 44

690 BEQUESTS FOR LIFE. — CONVBESION.

that at M. W.'s death the principal out of which the annuity arose
should go to his next of kin then living ; and he further directed, that
the annuity should be secured on his stock of Long Annuities. The
testator died possessed of 509L Long Annuities ; Sir L. Shadwell, V.
C, held, that a fund for payment of tlie annuity ought to be provided
in the Three per Cents., aiul that the money required for that purpose
ought to be raised by the sale of part of the Long Annuities, and that
the remainder of the Long Annuities formed part of the testator's
residuary estate.

In Benn v. Dixon, 10 Sim. 636, the testator gave to his wife the
whole of the interest arising from his propertj', both real and personal,
during her life ; and in case he should die without issue, he gave after
the death of his wife, the whole of his pr6perty, both real and personal,
to his brothers and sister. The testator died fiossessed of leasehold, and
was also seised of real estate. It was held by Sir L. Shadwell, V. C,
that the widow was not entitled to the leasehold property in specie dur-
ing her life, but only to the dividends of stock to be purchased with
|-^„„n-| the proceeds of the sale of it. " As the will *stands," said his
Honor, " there is nothing on the face of it to prevent the ap-
plication of the rule of law that perishable property must be sold and
converted into money, and invested in the funds, in order to produce
the same interest to the remainder-man as was enjoyed by the tenant
for life." And see Litchfield v. Baker, 2 Beav. 481 ; Sutherland v.
Cooke, 1 Coll. 498 ; Pickup v. Atkinson, 2 Hare, 625 ; Galdecott v.
Galdecott, 1 Y. & C. C. C. 312; Johnson v. Johnson, 2 Coll. 441;
■Ghambers v. Chambers, 15 Sim. 183 ; Litchfield v. Baker, 13 Beav.
44^ ; Morgan v. Morgan, 14 Beav. T2 ; Hood v. Clapham, 19 Beav.
90 ; Jebb v. Tugwell, 20 Beav. 84 ; T De G. Mac. & G. 663 ; Blann v.
Bell, 5 De Gex & Sm. 658 ; 2 De G. Mac & G. 775; Hoivard v. Kay,
27 L. J. N. S. (Ch.) 448 ; Craig v. Wheeler, 29 L. J. (Ch.) 374.

The mere absence of a direction to convert the property has never
been construed to mean that it should be enjoyed in specie by legatees
in succession : Johnson v. Johnson, 2 Coll. 441 ; Morgans. Morgan,\i
Beav. 72, 83.

Where perishable, wasting, or reversionary property is given to per-
sons in succession^ specifically, in the strict sense of that term, then
there can be no reason for converting it, although the trustees have a
discretionary power to do so. Thus, in Lord v. Godfrey, 4 Madd.
455, the testator bequeathed the residue of the stocks and funds then
or at his decease, standing in his name, after payment of his debts, to
trustees, to pay the interest and dividends to his wife for life, with re-
mainder to C. L., and empowered his trustees, at their discretion, to
change the stock as often as to them should seem fit and proper. At
the testator's death there were Long Annuities standing in his name,
producing 365Z. per annum. Sir J. Leach, V. C, held, that the widow

HOWE V. EARL OF DARTMOUTH. 691

was entitled to enjoy the Long Annuities in specie. " It would, I
thinlt," said his Honor, " be too much to intend that the testator meant
to authorize the trustee at their pleasure, to diminish the gift he had
before made to his wife. Such a power is given to trustees with a view
to the security of the property, and not with a view to vary or affect
the relative rights of the legatees." And see Bethune v. Kennedy^ 1
My. & Cr. 114 ; Evans v. Jones, 2 Coll. 516 ; Marshall v. Bremner, 2
Sm. & G. 23Y ; Mills v. Brown, 21 Beav. 1 ; Fielding v. Preston, 1
DeG. & Jo. 438.

If an intention can be collected from the will, that property shall be
enjoyed in specie, as it existed at the death of the testator, although
the property be not, in a technical sense, specifically bequeathed, it
ought not to be converted. And it has been observed by the Yiee-
Chancellor Wigram, in Hinves v. Hinves, 3 Hare, 611, that in the more
modern cases (unless perhaps, the decisions of the Vice-*Chan- r:(:qqq-|
cellor of England, in Mills v. 2IiUs and Benn v. Dixon, must
be excepted) the Court, in applj'ing the rule, has leant against conver-
sion as strongly as is consistent with the supposition that the rule itself
is well founded. See also Mackie v. Macl-ie, 5 Hare, 70, TT ; Holgate
V. Jennings, 24 Beav. 623.

Thus it has been held, that an express direction for sale at a particu-
lar period, indicates an intention that there should be no previous sale
or conversion : Alcock v. Sloper, 2 My. & K. 699 ; Daniel v. Waj-ren,
2 Y. & C. C. C. 290 ; Morgan v. Morgan, 14 Beav. "74, 83 ; Skirving v.
Williams, a Beav. 275; Bowe v. i?oife, 29 Beav. 276. A direction
that certain property comprised in a residuary bequest should not be
converted during a certain term of j^ears is tantamount to a direction
that it should remain in specie during that term, and the tenant for life
will be entitled to the income of it while it so remains in specie ( Green
V. Britten, 1 De G. Jo. & Sm. 655), or until it is sold under a discre-
tionary power vested in trustees, (lb.)

So, where there was a direction in a will, that trustees should in their
sole discretion sell so much, and such part of the residuary estate as
they might think necessary, the Court would not interfere with their
discretion, so as to prevent the tenants for life enjoying leaseholds in
specie, especially as a considerable time had elapased since such discre-
tion had been exercised : In re Seivell's Estate, 1 1 L. R. Eq. 80.

And where the trust of a residue was to pay the rents, issues, profits,
and annual proceeds to persons in succession, and it appeared that the
testator had no other property except leaseholds, to which the term
" rents" was applicable. Lord Langdale held the testator did not intend
the leaseholds to be converted, saying, that he could not declare it to
be a case of conversion without striking out altogether the word " rents"
which was twice repeated in the will : Goodenough v. Tremamondo, 2

692 BEQUESTS FOK LII"E. — CONVEKSION.

Beav. 512 ; Skirving v. Williams, 24 Beav. 215 ; Vachell v. Soberts,
32 Beav. 140.

Upon the same principle, iia Alcock v. Sloper, 2 My. & K. 699, Sir
John Leach, with regard to a general residuary bequest, upon trust to
permit the testator's widow to receive the rents, profits, dividench, and
annual proceeds thereof, for life, held, that the word " dividends" had
reference to Long Annuites, of which part of, the testator's estate con-
sisted, and that the use of the word " dividends" was equivalent to a
direction that the widow should enjoy the Long Annuites in specie.

These decisions were commented on by Sir James Wigram, Y. C, in
Pickup V. Atkinson, 4 Hare, 624 ; and although he appears to admit
that some weight was given to the words " rents" and '• dividends"
*he considers that they depended also upon other circumstan-
L -' ces. In that case, where the testator died possessed of lease-
holds. Long Annuities, and 3L 5s. per Cent. Annuities, and ready
money, he held, that a bequest of the rents and profits, dividends, and
interest of a residue, comprising that propertjr did not indicate an in-
tention that it was to be enjo3'ed in specie ; he thought that the correct
reasoning upon those words, considered alone, must be analogous to
that which is applied to the residue itself. The mere enumeration of
particulars in the latter case does not give a specific character to the
bequest, because the whole clause is, in effect, a mere residuary bequest.
He thought the same observation applied to a case like that ; the
enumeration of the particulars of income being nothing more than a gift
of the income of the residue, which means income only. That conclu-
sion appeared to his Honor to be put beyond dispute when it was con-
sidered that the words " rents, profits, dividends, and interest," in that
case meant rents, profits, dividends, and interest, not of the property
the testator then had, but of such propertj^, real, personal, or mixed, as
he might happen to have at the time of his death. The same conclusion
arose iiom the words of the gift over namelj', " the f.hole of such resi-
due of my said property."

However, in Cafe v. Bent, 5 Hare, 36, where there was a direction,
which referred to the general residue of the estate (which included
leaseholds), and not to leaseholds specificallj^ bequeathed, that the
trustees should retain a per centage on the i-ents to be collected, his
Honor held the direction, fortified by other expressions in the will, was
evidence that the testator contemplated the enjoyment in specie of the
leasehold property comprised in the general j-esidne, by the legatees.
" Although this direction," he observed, " might perhaps be satisfied
by applj'ing it to such rents and profits of those leaseholds as should
arise before a sale, I think the cases of Pickering v. Pickering, and
Goodenough v. Tremamondo, are authorities for putting a more precise
construction on the words ' rents,' and for holding that this will carries
intrinsic evidence that the testator contemplated the enjoyment in

HOWE V. EARL OF DARTMOUTH. 693

specie of the leaseholds in question. This conclusion is fortified by the
other circumstances to which I have referred, although those circum-
stances, standing alone would not, in my judgment, have been sufficient
evidence of the same intention. I have gone at some length into this
question, because I consider myself bound by HoweY. Lord Dartmouth,
except where I can find a necessary implication to the contrary. The
circumstances referred to by his Honor were a power of leasing,
*which he thought might apply to the leaseholds specifically be-
queathed and a direction to sell particular parts of the personal L -'
estate ; with regard to which the inference had been drawn in argument
that the testator did not intend his residuary estate to be sold. His
Honor observed, that, standing alone, it would have no effect on his
mind ; that the rule in Howe v. Lord Dartmouth , did not proceed upon
the assumption that the testator intended his property to be sold, ex-
cept so far as a testator might be - presumed to intend that which the
law will imply from the directions in his will. That the rule proceeded
upon this, that the testator has intended the eujoj'ment of perishable
property by different persons in succession ; and this the Court could
only accomplish by meaus of a sale. To this also might be added
the consideration, that the argument might prove too much ; for it
would prove (if it proved anything) that no part of the residuary estate
was to be sold, — a length to which it would be extremely difficult to
carry the argument with success. See Hunt v. Scott, 1 De G-. & S.
219 ; Hoioe v. Howe, 14 Jur. 359 ; Burton v. Mount, 2 De G. & Sm.
383 ; Crowe v. Crisford, IT Beav. 507 ; Blann v. Bell, 5 De G. & Sm.
658 ; 2 De G. Mac. & G. 175 ; Harris v. Poyner, 1 Drew. 174 ; Hind
v. Selby, 22 Beav. 373 ; Wearing v. Wearing, 23 Beav. 99 ; Bowden r.
Boivden,l'l Sim. 65; Skirving v. Williams, 24 Beav. 275; Boys v.
Boys, 28 Beav. 436.

Where, however, there was an express trust to convert the residuary
personal estate into monej^, immediately after the testator's death, and
to invest the amount "in the Bank of England," it was held that a mere
direction to permit a person to receive all the rents and profits, divi-
dends, or annual produce of his personal estate for life for his own use
was not sufficient to qualify the direction to convert, and authorize the
trustees to pay the tenant for life the dividends of the Long Annuities
in specie : Bate v Hooper, 5 De G. Mac. & G. 338, 344.

A direction that powers of attorney should be given to cestuis que
trust entitled to receive in succession the income of property, may
show the testator's intention that they were to enjoy it in specie.
Thus, in Neville v. Fortescue, 16 Sim. 333, a testator bequeathed all
his personal property by reference to limitations of real estate in strict
settlement, and then directed that the persons entitled under the limi-
tations should, under letters of attornej^ and powers from the trustees
(which he empowered and required them to grant), receive the yearly

694: BEQUESTS BOR LIFE. — CONVEESION.

dividends which might arise out of the public or other funds, and the

yearly interest which might arise from other parts of his personal

property under the same restrictions and limitations, and to the same

extent *on which they held his real estates. Sir L. Shadwell,
r*3421
L -I V. C, held that the tenant for life was entitled to the enjoyment

of Long Annuities and Bank Stock in specie. " The testator," observed
his Honor, " contemplated that various powers of attorney might be
necessary to be executed by his trustees, in order to enable the persons
who were to enjoy his personal estate in succession to receive the an-
nual proceeds of it. This seems to me to demonstrate that he intended
the cestuis que trust to enjoy his personal estate in the state in which
it might be at the time of his death."

A direction to divide property after the death of the tenant for
life, has been held to indicate an intention that the tenant for life should
enjoy the property in specie: Collins v. Collins^ 2 My. & K. '703. And
see Bethune v. Kennedy, 1 MJ^ & Cr. 114; Pickering v. Pickering, 2
Beav. 31 ; 4 My. & Cr. 289, 300 ; Vaughan v. Buck, 1 Ph. T5 ; Oakes
v. Strachey, 13 Sim. 414; Daniel v. Warren, 2 Y. & C. C.C. 290; Hub-
bard V. Young, 10 Beav. 203 ; House v. Way, 12 Jur. 958; Holgate v.
Jennings, 24 Beav. 623. The Vice-Chancellor Wigram, however, has
observed, that he could not understand how a direction to divide could
help the Court to determine what was to be divided ; and be did not
think that Collins v. Collins turned on that: Pickup y. Atkinson, i
Hare, 630. And it must be remarked, that, in some of the older cases,
• and in Mills v. Mills, t Sim. 501, the direction to divide was not noticed
as in any way indicative of the testator's intention.

An exception from a general direction to convert, may show an in-
tention that Long Annuities are to be enjoyed in specie. Thus, in
Wilday v. Sandys, t L. R. Eq. 455, a testator gave his residuary estate
to trustees in trust to convert into money such parts thereof as should
not at his decease consist in monej', or be invested in any of the
public funds or government securities and to invest the same in such
public funds or government securities as to them should seem most ad-
vantageous, and to pay the interest dividends, and annual proceeds of
such residue to his children in equal shares for their lives, and after their
deaths, upon other trusts. It was held by Lord Romilly, M. R., that
the Long Annuities, of which the testator died possessed, were within
the exception from the trust for conversion, and that the tenants for
life were entitled to enjoy them in specie.

Where a tenant for life is entitled to the enjoyment of leaseholds in
specie, and they are taken by a public company, and the purchase-
money is paid into Court, he is entitled to the same benefit thereout as
he would have had from the lease (8 & 9 Vict. c. 18, s. "74), and as

leasehold property * is of a wearina'-out character, it is evident
r*3431 t^ L J o 5

L -' that the mere interest of the purchase-mouey cannot be con-

HOWE V. EARL OF DARTMOUTH. 695

sidered an adequate compensation to the tenant for life. Thus, in
Jeffreys v. Conner, 28 Beav. 328, leaseholds bequeathed to one for life,
with remainder over, were taken by a railway company, and the pur-
chase-money was invested in Consols. The tenant for life only received
the dividends. It was held by Sir John Romillj^, M. R., on her death
(her representatives consenting to take it) that her estate was entitled,
out of the Consols, to the difference between the dividends received and
the aggregate amount of the rental which would have accrued during her
life, if the leaseholds had not been taken. See also Morres v. Hodgea,
27 Beav. 625 ; and In re Money's Trusts, 31 L. J., N. S. (Ch.) 496.

Where the tenant for life in such case outlives the term for which he
is entitled as tenant for life, he will become absolutely entitled to the
whole fund : In re Beau/ay's Estate, 1 Sm. & Giff. 20 ; and see Fhil-
lips V. Sargent, 7 Hare, 33.

Where a tenant for life is entitled to enjoy in specie, the rule is that
investments may remain, but debts must be realised : see Holgate v.
Jennings, 24 Beav. 623, in which case Sir John Romillj^, M. R., appears
to have treated Turnpike Bonds as debts.

A power to vary securities is important, as showing that the testator
did not intend his residue to remain on perishable securities : Morgan
V. Morgan, 14 Beav. 72, 85. But it is said by Sir John Leach, V. C,
in Lord v. Godfrey, 4 Madd. 459, that such power is given to trustees
with a view to the security of the property, and not with the view to
vary or affect the relative rights of the legatees.

Where property the subject matter of a bequest given to persons in
succession, is found by the trustees of a testator to be so laid out as to
be secure, and to produce a large annual income, but is not capable of
immediate conversion without loss and damage to the estate ; there the
rule is not to convert the propertjr, but to set a value upon it, and to
give the tenant for life 4Z. per cent, on such value, and the residue of
the income must then be invested, and the income of the investment
paid to the tenant for life, but the corpus must be secured for the re-
mainder-man. See Gibson v. Bott, 7 Ves. 89 ; Galdecott v. Galdecott, 1
Y. & C. C. C. 312 ; Meyer v. Simonsen, 5 De G. & Sm. 723 ; Arnold v.
E)inis,2 Ir. Ch. Rep. 601; Be Llewellyn's Trusts, 29 Bear. 171. In
Brown v. Gellatly, 2 L. R. Ch. App. 751, the testator Duncan Dunbar,
after giving his property to trustees, with full power to realize the same
when and in such manner as they might see fit, emjoowered them to sail
his ships for the benefit of his estate, until they could be satisfactorily
*sold. The ships gained considerable earnings after the testa-
tor's death. It was held by Lord Justice Cairns, affirming the L J
decision of Lord Romilly, M. R., that the tenants for life of the residu-
ary estate were not entitled to the earnings of the ships as income, but
(in this respect, varying the decision of the Master of the Rolls) that
they were entitled to interest at il. per cent., on the value of the ships

696 BEQUESTS FOR LTFE. — CONVERSION.

from the testator's death. " With regard to the ships," said his Lord-
ship, " the testator has put them simply in the position of property,
which was to be converted cautiously, and in proper time, and as to
which, there was no breach of trust in the executor's delaying to con-
vert it, but, which was when converted, and when invested, to be en-
joj^ed as the residue of his estate. In that state of things, it seems to
me, that this case falls exactly within the third division pointed out by
Sir James Parker, in the case of Meyer v. Simonsen (5 De. G. & Sm.
"723), and that a value must be set upon the ships, as at the death of the
testator, and the tenant for life must have 4 percent, on such value, and
the residue of the profits must of course be invested, and become a part
of the estate.''

When according to the construction of a will the executors have full
power to retain upon certain securities, for as long as they think it ad-
vantageous, the money invested by the testator in those securities, or
to invest upon securities of 'anj!- of those descriptions, the money ob-
tained by the conversion of any part of the testator's estate, while any
such securities form part of the testator's estate, the tenant for life is -
entitled to the specific income of the securities, just as if they had been
SI. per cent. Consols : Brown v. Oellatly, 2 L. R. Oh. App. T51, ToS.
See, also, Lambert v. Lambert, 20 W. R. (V. C. B.), 943.

When trustees do not convert securities which they were not author-
ised by the testator to retain, the tenant for life will only be entitled to
an income from the testator's death, equal to the dividends of the Con-
sols, which would have been produced by a sale and investment in Con-
sols,'at a year from the testator's death, and not as in Eobinson v. Rob-
inson (1 De G. Mac. & Gr. 247), to an income equal to interest at il. per
cent, on their value : Brown v. Gellatly, 2 L. R. Ch. App. 751 ; see
also Limes v. Scott, 4 Russ. 195 ; Taylor v. Clark, 1 Hare, 161 ; Gibbs
V. Gibbs, 26 L. T. (N. S.) 865.

It may here be mentioned that in a recent case where trustees were
made liable for having improperly allowed perishable property to re-
main in specie and to be enjoyed by the tenant for life, they were al-
lowed, by means of an inquiry in the same suit, to recover back against
the estate of the *tenant for life the amount overpaid to him
[*345] _g-^^^ ^_ Clapham, 19 Beav. 90.

And where trustees, having a discretion as to the time of conversion,
allow reversionary property to remain unsold until it fall into posses-
sion, the tenant for life will be entitled to have paid to him in respect
of interest out of the property, the amount which he would have re-
ceived had the trustees sold the property at the end of one year after
the testator's death. The principle upon which the Court will proceed
in such a case, in calculating what is payable to the tenant for life, is
to ascertain the value of the reversion, on the assumption that it was to
fall in on the day when it actually fell in ; this would represent the capi-

HOWE V. EARL OF DARTMOUTH.

697

tal, had the sale not been delayed, and to i^ay the difference between the
sum so ascertained, and the whole of the propertj^ which had fallen into
possession to the tenant for life, as representing the income which he
wonld have received had the sale not been delayed : Wilkinson v. Bun-
can, 23 Beav. 469 ; see Gox v. Gox, 8 L. R. Eq. 343.

Agreeabljr to the common law,
the grant of a life interest in a
chattel passed the entire owner-
ship, although the subject was a
term of years extending beyond
the possible duration of human
life, and it followed that a limita-
tion over on such a gift was void.
Williams on Personal Propertj',
235. The difficulty was sur-
mounted by the aid of a doc-
trine which seems to have been
derived from the civil law. It
is obviously jjossible to provide
that one shall be entitled to
use a chattel so long as he lives,
and that the right of property
shall vest in another at his death.
A legatee for life of personalty
is accordingly regarded as having
a mere usufruct, and if the goods
are delivered to him, they must
be accounted for when he dies.
See Westcott v. Cady, 5 John-
son Ch. 344 ; Gillespie v. Miller,
lb. 21; Moffatt V. Strong, 10
Johnson, 12; ffolman's Appeal,
12 Harris, 1Y4, 1Y8; Waldo v.
Cummings, 45 Illinois, 421.
Cooper V. Cooper, 2 Brevard, 355 ;
Home V. Lyeth, 4 Harris & J.
431 ; Burne v. Lester, 53 Illinois,
325 ; Smith v. Bell, 6 Peters, 68.

In Westcott v. Cady, Chancellor
Kent, observed: The law is too
well settled to be drawn into ques-
tion at this late day, that a limita-
tion of personal goods and chattels

or mone}'' in remainder, after a be-
quest for life is good. In Ran-
dall X. Russel, 3 Merivale, 190,
the testator gave his farm and
stock, and crops thereon, to his
wife, during her natural life if
she should continue so long un-
married. The Master of the Rolls,
observed upon the case, that origi-
nally by the English law, there
could be no limitation over of a
chattel, but a gift for life carried
the absolute interest. Then a dis-
tinction was taken between the use
and the property. The use might
be given to one for life, and the
property afterwards to another.
A gift for life of a chattel was now
construed to be a gift of the usu-
fruct only. He referred to what
Lord Alvanley had said in Porter
V. Townley, 3 Yesey, 311, that
there had been great doubt what
a person having a limited use of
articles, as corn, hay, &c., of which
the use consists in the consump-
tion, must do. He conceived that
a gift for life, if specific, of things
" quse ipso usu consuniuntur" was
a gift of the property, and that
there could not be a limitation
over after a life interest in such
articles. When the use and the
property can have no separate ex-
istence, the old rule must prevail,
and a limitation over after a life
interest is void."

In appljnng the pirinciple, regard

698

BEQUESTS FOR LIFE. — CONVERSION.

must be had to the intention of
the testatoi' as deduced from the
language of the will, and the
nature of the property bequeathed.
Calhoun v. Ferguson, 3 Richard-
son's Eq. 160 ; Wooten v. Burch,
2 Maryland Ch. 190; Golder
County V. Liitlejohn, 30 Wisconsin,
351. His purpose, presumably, is
that the legatee for life shall enjoy
the subject matter of the bequest
■while he lives, and that it shall
pass on his decease, to the remain-
der-man, with as little change or
deterioration as is compatible with
the benefit designed for the lega-
tee for life. These ends are not
identical, and may prove incon-
sistent, because the first taker may
use or employ the property in a
way to render it less valuable or
cause it to be lost. Such a result
may ensue without intentional
wrong or gross negligence, from a
bad investment, or in the case of
perishable chattels through the
lapse of time. The proper mode
of carrying out the'will is conse-
quently that which affords security
to the remainder-man, without
prejudice to the life tenant. Two
ways are open to the executor —
one, to hand the property over to
the legatee for life, on the faith of
an express or implied undertak-
ing on his part that it shall be
forthcoming when he dies ; the
other, to convert so much of it as
is not in a form to bear interest
into money, and then invest the
whole for the benefit of the per-
sons who are successively entitled
under the will. The latter method
is obviously the more equitable,
as diminishing the risk of loss aad

deterioration, and securing equal-
ity of enjoyment as far as the
nature of the case admits. It
should, therefore, be adopted, un-
less a different intention is dis-
closed in the will, or appears by a
reasonable inference from the na-
ture of the bequest.

It is accordingly well settled
that where the whole or a part of
the entire personal estate, or of so
much of it as may remain after the
payment of debts and legacies, is
left to one or more persons for
life, with a bequest over on their
decease, any portion of it which
is not permanently and securely
invested must be sold or collected,
and the proceeds put at interest
on good securit}'- for the use of
all concerned ; Jones v. Simmons,
1 Iredell Eq. 1T8 ; Saunders v.
Houghton, 8 Id. 211 ; S2)ear v.
Tinkham, 2 Barb. Ch. 211 ; Bur-
nett V. Lester, 53 Illinois, 325,
335 ; Golder County v. Littlejohn;
Kinmouth v. Brigham, 5 Allen,
2T6 ; Healy v. Topjyan, 45 New
Hamp. 243; Thorp v. Petit, 1
C. E. Greeu, 487 ; Smith v. Bar-
ham, 2 Dev. Eq. 420, 428 ; Hen-
derson V. Vaux, 10 Yerger, 30 ;
Govenhoven v. Shuler, 2 Paige,
132. When, said the chancellor,
in Covenhoven v. Shuler, " there is
a bequest for life, or other limited
period, with a limitation over,
of specific articles, such as books,
plate, &c., which are not neces-
sarily consumed in the using, the
first taker was formerly required
to give security, that the articles
should be forthcoming on the
happening of the contemplated
event. And the remainder-man

HOWE V. EAEL OF DARTMOUTH.

699

must take them in the situation
in which they will be left by the
ordinary prudent use thereof by
the first taker ; Hale v. Burrodale,
1 Eq. Ca. Abr. 461 ; Bracken v.
Bently, 1 Rep. in Ch. 110. The
modern practice in such cases is
only to require an inventory of
the articles, specifying that they
belong to the first taker for the
particular period only, and after-
wards to the person in remainder ;
and security is not required, unless
there is danger that the articles
may be wasted or otherwise lost
to the remainder-man ; Foley v.
Burnell, 1 Bro. Ch. Ca. 219;
Slanney v. Style, 3 Peere Wms.
336. Whether a gift for life or
specific articles, as of hay, grain,
&c., which must necessarily be
consumed in the using, is to be
considered an absolute gift of the
propertj', or whether they must be
sold, and the interest or income
only of the money applied to the
use of the tenant for life, appears
to be a question still unsettled in
England ; 3 Ves. 314 ; 3 Mer. 194.
But none of these principles, in
relation to specific bequests of par-
ticular articles, whether capable of
a separate use for life or otherwise,
are applicable to this case. Where
there is a general bequest of a
residue for life, with a remainder
over, although it includes articles
of both descriptions as well as
other property, the whole must be
sold, and converted into money by
the executor, and the proceeds
must be invested in permanent
securities, and the interest or in-
come only is to be paid to the
legatee for life. This distinction

is recognized by the master of the
rolls, in Randall v. Russell, 3 Mer.
R. 193. He says, if such articles
are included in a residuarj' bequest
for life, then they are to be sold,
and the interest enjoj'ed by the
tenant for life. This is also recog-
nized by Roper and Preston, as a
settled principle of law, in Eng-
land ; Prest. on Leg. 96 ; Roper
on Leg. 209 ; see also Howe v.
Earl of Dartmouth, T Yesey, 137,
and cases in notes."

It was declared in like manner
in Howard v. Hoivard, 1 C. E.
Green, 481, that " where there is a
general bequest for life with re-
mainder over, the whole must be
sold and converted into money by
the executor, the proceeds invested,
and the interest only paid to the
legatee for life ; Howe v. Earl of
Dartmouth, 1 Yesey, 131'; Randall
V. Russell, 3 Mer. 193 ; Govenhoven
V. Shuler, 2 Paige, 132 ; Cairns
V. Chaubert, 9 Paige, 163 ; 2 Kent.
Com. 553 ; 2 Story's Eq. Jurs. 845 ;
Willard'sEq.Jurs. 332; 2 Williams
on Exr's. (ed. 1849), 1196; Reed
V. Eddy, 2 Green's R. 116 ; Acker-
man's Adm'r. v. Vreeland, Ex'r,
1 McCarter, 23. The rule prevails
unless there is an indication of an
intention on the jDart of the testa-
tor, that the legatee for life should
receive the property bequeathed ;
Collins V. Collins, 2 Mylne &
Keen, 103 ; Bickering v. Bicker-
ing, 2 Beav. 31 ; S. C, 4 Mylne &
C. 289, 1 Story's Eq. 604, note 1.
There is nothing upon the face of
this will to indicate an intention
that the specific property should
be received by the legatee. The
circumstance that the bequest of

700

BEQUESTS FOR LIFE . CONVERSION,

the general personal estate is in
the same sentence with that of the
real, the devise of which is neces-
sarily specific, will not be sufficient
to make it a specific legacy ; Howe
V. The Earl of Dartmouth, "7 Ve-
sey, 1312; Wms. on Exor's, 1006."

Such a conclusion is the more
reasonable because it is the right
and duty of an executor to collect
the assets and convert them into
money. Williams on Executors,
932 ; Johns v. Johns, 1 M'Cord,
132 ; Chittj^'s General Practice,
528. His power in this regard is
absolute, and extends to chattels
that have been specifically be-
queathed. Spade V. Smith, 3
Russell, 511 ; Williams on Execu-
tors, 1340. He has the legal title,
and may bring trespass if the
legatee removes the property with-
out his consent, Johns v. Johns ;
Toller, 240 ; Bacon's Abr. title 4,
S., 8 pi. 84. Where, however,
there are no debts, or none that
cannot be satisfied from other
sources, he may be restrained by
an injunction from frustrating the
intention of the testator by dispos-
ing of the subject of a speci-
fic legacy. Clarke v. Ormonde,
Jacob Ch. 108. And there is no
doubt that after the demands of
creditors have been satisfied, relief
may be aflTorded against an execu-
tor who insists on converting the
goods or securities, contrary to the
wishes of a general or residuary
legatee. See Evans v. Iglehart, 6
Gill. & J. 196.

A somewhat diflferent rule pre-
vails in Maryland where the right
of the legatee for life to have the
property delivered into his own

hands, depends not so much on the
difference between-a specific and a
residuary bequest, as on whether
the nature of the property is such
that it can be enjoj'ed without
being actually possessed. Evans
V. Iglehaj-t, 6 Gill & J. 171. In
Wooten V. Burch, 2 Maryland Ch.
190, the testator bequeathed all
his real and personal estate to his
wife for life with remainder over.
She went into possession of the
personal property and so wasted
or mismanaged it, that nothing re-
mained at her death. The court
held that as to so much of the es-
tate as consisted of monej', and
might have been put at interest,
there was a breach of the condi-
tion of the bond which she had
given as executrix, for which the
surties were answerable, but that
no recovery could be had against
them for the loss of the specific
chattels which she was entitled to
hold in her capacity as legatee.

" It is no longer an open question
in this state that when money, or
personal property whose use is
the conversion into money, is either
specifically given to one for life
by a will, or is included in the be-
quest of a general residue, an in-
vestment thereof must be made by
the executor in some safe and pro-
ductive fund so as to secure the
dividends to the legatee for life,
and the principal after his death
to the legatee in remainder. Evans
et al. V. Iglehart et al., 6 Gill &
Johns, 112. If, say the Court of
Appeals in the case referred to, the
surplus or residue thus bequeathed
consists of money or property,
whose use is the conversion into

nOWE V. EARL OF DARTMOUTH.

701

monej', and which it could not for
that reason be intended should be
Bpecifically enjoyed nor consumed
in the use, but be by the executor
converted into money for the bene-
fit of the estate, an investment
thereof must be made. But if,
on the coiitrarj', the property be-
queathed is such that its use is its
consumption, the legatee for life
takes the absolute and entire in-
terest, and the legatee over gets
nothing." Wooten v. Burch, 2
Maryland Ch. 190.

It is not alwaj^s easy to deter-
mine what property should be
deemed insecure or hazardous
within the rule advanced in Howe
V. Lord Dartmouth. There can
be little doubt in the case of
chattels personal, which are for
tlie greater part perishable, and can
seldom be rendered productive
without the actual use which may
result in waste or deterioration. So
terms for years must be sold al-
though for a different reason, as
growing every day less valuable,
and liable to run out before they
reach the hands of the remainder-
man. What course shall be pur-
sued in the case of choses in action,
is a question of more difficulty,
which is answered differently in
the various states. If there be
any general principle, it is that
while the executor should not
call in or alter the investments,
made by the testator without a
sufficient cause, he will not be
justified in retaining any security
which he would not have been
justified in acquiring. Kinmouth
v. Brigham, 5 Allen, 270, 278.
The authorities agree in two con-

ditions, one that the investment
must be secure ; the other, that it
shall have a stable value which will
not fail or expire during the con-
tinuance of the trust, and will pre-
sumably be as available to the last
taker as it was to the first. If the
form in which the propertj' was left
by the testator meets these require-
ments it need not be changed, if it
does not, the mere circumstance that
it was chosen by him is not a suf-
ficient reason for incurring a risk
which might be avoided by a
.timely sale. An executor need
not, for example, dispose of stock
in the funded debt of the govern-
ment or state, or of a municipal
corporation in good credit, because
if such securities were sold it
would be difficult to point out in
what way the proceeds could be
invested with greater safety, nor
need he call in money which has
been lent on bond and mortgage.
In Massachusetts, the stock of a
manufacturing or railwaj'' com-
pain-, or the bond or note of an
individual, secured by such a
pledge, is not deemed a hazardous
investment, or one that must neces-
sarily be avoided by a trustee, and
it follows that an executor need
not dispose of such securities
where they have been purchased
by the testator. See Kinmouth v.
Brigham ; Clark v. Garfield, 8
Allen, 42T ; Lovell v 3Iinot, 20
Pick. 119; Harva7-d College v.
Amory, 9 Id. 446. The law of
Pennsylvania and generally of the
other states, is more stringent, and
does not sanction the investment
of trust money on any foundation
which is less secure than real

702

BEQUESTS FOR LIFE. — CONVEESION.

estate, or the public faith. See
Smith Y. Smith, 4 Johnson Ch.
281 ; Eingv. Talbot, iO^evf York,
TG ; Nye's Estate, 5 W. & S. 254;
Will's Appeal, 10 Harris, 330;
Notes to Townley v. Sheborne, post-
Hut all the courts agree that prop-
erty which is perishable or pre-
carious, as for instance, shipping,
or the machinery of a factory, or
the interest of the testator as
a special or general partner,
must be converted by the execu-
tor with all convenient despatch,
although the existing investment
is profitable, and might in his
opinion, -and that of competent
persons, be retained with com-
paratively little risk. See Ein-
mouth V. Brigham, Batch v. Hatch,
10 Gray, 402 ; Govenhoven v. Shu-
ber, 2 Paige, 132 ; Williamson v.
Williamson, 6 Id. 298 ; Cairns v.
Chaubert, 9 Id. 160 ; Healy v. Top-
pan, 45 New Hampshire, 243 ;
Thorp V. Petit, 1 C. E. Green,
48Y.

The obligation to convert a re-
siduar}^ bequest into money, may
arise not only where the property
is insecure in its actual form, but
where it must become less valua-
ble or cease to exist with the lapse
of time. Healey v. Toppan 45,
New Hampshire, 243 ; Einmouth
T. Brigham, 5 Allen, 216. Hence
while one to whom a chattel real
is specifically bequeathed for life,
is entitled to the possession and
enjoyment of the land, although
he may live until the lease has ex-
pired, and leave nothing for the
remainder-man, yet where such an
interest is conferred by a residuary
bequest, it must be sold, and the

proceeds invested as a means of
placing the second taker on the
same level with the first ; Cairns
V. Chaubert, 9 Paige, 160. The
law was so he],d in Cairns v.
Chaubert, and it was said to fol-
low, that a bequest of all the in-
come of the testator's real and
personal property to several per-
sons in succession, entitled the
remainder-men to require that a
toll bridge which formed the most
profitable part of the estate, should
be disposed of by the executor,
and the purchase-money placed at
interest on good security for their
benefit and that of the legatee for
life ; the ground of the decision
being that the franchise had only
been granted for a limited period,
and would expire before the gift
over took effect. See Batch v.
Eulbert, 10 Gray, 402.

It results from the same princi-
ple that although a specific bequest
for life with a gift over of things
" quse ipso consumuntur usu,''
confers an absolute interest on the
first taker ; this rule does not ap-
ply where such articles are em-
braced in a residuary or general
legacy and they must then be con-
verted into money as a means of
securing the remainder-man with-
out disappointing the first taker ;
ante, 643 ; Burnett v. Lester, 53
Illinois, 325.

The rule applies conversely in
favor of the life tenant, who may
require that a reversionary or
other interest which cannot be
reduced to possession or made
available as a source of income in
its actual form, shall be sold and
the proceeds invested for the use

HOWE V. EARL OF DARTMOUTH,

703

of all concerned. Healey v. Top-
pan, 45 New Hampshire, 243, 266,
ante, 683.

The presumption in favor of
converting perishable or wasting
property, will be repelled by any
provision which indicates that the
efiects are to remain in their actual
form during the life of the first
taker, Henderson v. Vaulx, 10
Yerger, 30, as where the will directs
that they shall be sold at his
death, and the proceeds distribu-
ted among the remainder-men,
Salman's Appeal, 12 Harris 1'74 ;
Golder County v. Littlejohn, 30
Wisconsin, 351 ; Calhoun v. Fer-
guson, 3 Richardson Eq. 160, 166.
The rale is ancillarj'- and mere-
ly a means of attaining the end
which the testator presumably
had in view, and if it appears
from the context or on the face
of the bequest, that he inten-
ded that the life tenant should
use or possess the property in
its existing state, his purpose will
he carried into eflfect, although
the bequest is residuary and con-
sists of perishable property.

In Colder County v. Littlejohn,
80 Wisconsin, 351, the testator's
estate consisted of bonds, promis-
sory notes and other choses in
action, and also of household
furniture, wearing apparel, &c.
He appointed his wife and the
defendant executors, and directed
that she should enjoy his property
during her life, and that it should
be sold at her death and the pro-
ceeds distributed among his next
of kin. The defendant disposed
of the whole and gave the pur-
chase-money to her. The court

held that taking the words of the
legacy in connection with the sub-
ject matter, it must be regarded
as a specific bequest of so much of
the eflfects as could not be enjoyed
without possession, but not of the
choses in action. It followed that
the defendant was answerable to
the remainder-men for the latter,
which it was his duly to have in-
vested, but not for the former
which he might have delivered in
specie to the widow, and must be
regarded as having sold as her
agent. Lyon J., said : " The gen-
eral rule is, that where there is a
bequest of the whole of the testa-
tor's personal estate, or of the resi-
due thereof after the payment of
debts, expenses of administration
and legacies, to one person for life,
with the remainder to others after
the termination of the life estate,
the whole property must be con-
verted into money and invested in
permanant securities hy the ex-
ecutor, and the income only paid
to the legatee for life. But if it
can be gathered from the will that
the testator intended that such
legatee for life should enjoy the
property in its then condition, the
bequest is specific and the legatee
is entitled to the possession and
enjoyment of the property, thus
specifically bequeathed, although
the bequest be made in general
terms aud without any particular
designation of the propertjr. * * *
See notes to Howe v. The Earl of
Dartmouth, 1 Ves. 13T ; 2 Lead.
Cases in Eq. 686 ; Healey v. Top-
pan, 45 N. H. 243 ; Morgan v.
Moran, 14 Beavan, 72.

In the present case the will ex-

704

BEQUESTS FOR LIFE. — CONVERSION.

pressly gives to the legatee for life
the use and eujoyment of the prop-
erty, and by directing that it be
sold after her death, the testator
evidently intended that it should
not be sold before her death, but
that she should have the posses-
sion and use of it during her life.
It necessarily follows that in re-
spect to the property which was
of a character to be possessed,
used, enjoyed and sold, that is the
personal chattels as distinguished
from the choses in action, the
legacy is specific, and Mrs. Potts
was entitled to the possession, use
and enjoj'ment of such chattels in
specie, during her life. This prop-
osition is conceded to be correct
in the brief of the counsel for the
plaintifi:'. Had Mr. Kellogg been
sole executor, and had he delivered
those chattels to Mrs. Potts, his
liability therefor as an execntor,
at least so long as she lived would
have been terminated, because in
that case he would have disposed
of the property precisely in ac-
cordance with the direction of the
testator, and the requirements of
law. Had Mrs. Potts died pos-
sessed of the property, it would
doubtless have been his duty as
executor^to resume possession of
it, and to have sold it for the
benefit of the other legatees, but
while she lived he would of had
no further control over it, and
could not be held liable as ex-
ecutor on account of it. Again,
had Mrs. Potts sold or destroyed
the property after it came into
her possession, the remedy of the
legatees in remainder would not be

against Mr. Kellogg as executor,
or upon his bond as such, but
against the personal representa-
tives of Mrs. Potts after her death
French v. Hatch, 8 Foster, 33J
Weacott V. Cady, 5 John. Oh. 334
2 Lead. Oases in Eq. Y06.

In this case the legatee for life
was executrix of the will, and the
]30ssession of the property by her
co-executor was her possession,
and we think that such possession
immediately vested in her bj' opera-
tion of law as legatee, that of the
executors as such being thereby di-
vested, and that the subsequent sale
thereof by Mr. Kellogg, and the
payment of the jaroceeds to her,
were not the acts of Mr. Kellogg
as executor, but rather as agent
of the legatee for life.

If these views are correct, it
seems to follow that no action can
be maintained upon the bond of
the executors, for the proceeds of
the sales of such chattels, as were
specifically bequeathed to Mrs.
Potts for life.

It is true that some of the cases
hold that it is the duty of the
executor to take a receipt for the
property from the legatee for life,
specifying therein the estate which
the latter has in the property', and
this is doubtless the proper mode
in w'hich to transact the business,
but we do not find that it has ever
been held that a failure to take
such a receipt will render the ex-
ecutor liable upon his bond, for
the value of such property.

We perceive no good reason for
holding that such liability exists
by reason of a failure to take the

HOWE V. EARL OF DARTMOUTH.

705

proper receipt from the legatee for
life, especially when such legatee
is also an executor.

We conclude therefore that there
can be no recovery upon the bond
of the executors for the value of the
property specifically bequeathed to
Mrs. Potts for life.

We find nothing in the will to
evidence an intent on the part of
the testator to make a specific be-
quest of the choses in action,
which constituted the bulk of his
personal estate. Such property,
from its very nature, does not
admit of use, enjoyment and sale
iu the sense in which those terms
are evidently used in the will. As
to these the bequest to Mrs. Potts
for life is general and not specific.
Under the authorities above cited
it is quite impossible to give any
other construction to the will in
tills behalf. Hence the general
rule before stated is applicable,
and it was the duty of the execu-
tors to collect the notes and sums
unpaid on the land contract de-
scribed in the inventory, and to
sell the railroad stock, to invest
the whole proceeds thereof in per-
manent securities, to pay over the
interest accruing thereon to the
legatee for life, to retain such
securities for the benefit of the
legatees in remainder, and after
the death of the legatee for life it
was the duty of the surviving ex-
ecutor Mr. Kellogg, to convert
such securities into money, and
distribute the proceeds as directed
by the will.

The failure of the executors and
of Mr. Kellogg, after the death of
Mrs. Potts, to perform these duties
VOL. II 45

or the most of them, is an addi-
tional breach of the conditions of
their bond."

In like manner where the tes-
tator bequeathed the residue of
his personal estate to his wife
during her life or widowhood, to
use in any lawful manner, with a
proviso that if she married again
one-half should be hers, and that
she should be at liberty to take
any part of the rest at a valuation,
the court held that the testator
manifestly intended that no more
of the ijroperty should be sold
than was requisite to pay his debts,
and that his widow should take the
residue, subject only to the obliga-
tion of accounting for it at her
death ; Harrison v. Foster, 9 Ala-
bama, 955.

The duty of converting a be-
quest for life into monej-, is based
exclusivelj' on the presumed inten-
tion of the testator that the re-
mainder-man shall enjoy the same
benefit as the first taker, and does
not arise where a different purpose
appears in the will. A specific
legacjf of a chattel to one for life
and then over, consequently enti-
tles the legatee to the possession
and enjoyment of the property,
although the effect may be to leave
little or nothing for those who are
to come after him. For as the
testator manifestly intends that he
shall have the goods in their ex-
isting form, his purpose will not
be frustrated by turning them into
money. Golder County v. Little-
john, 30 Wisconsin, 351 ; Swain
V. Sproill, 4 Jones Eq. 252. The
argument is still stronger in this
direction, in the case of a general

706

BEQUESTS FOR LIFE. — CONVEESION.

legacy of chattels of a certain
kind, because if such effects do
not exist among the testator's
goods, it is the duty of the execu-
tor to procure them as a means of
carrying out the will, which neces-
sarily implies that they are not to
be sold when they do. See Gra-
ham V. Graham^ 1 Busbee Eq.
291 ; ante, notes to Aahburner v.
Maguire.

It has accordingly been held in
numerous instances, that an ex-
ecutor does not incur any liability
by handing over chattels that have
been generally or specifically be-
queathed for life, to the legatee,
although they are wasted b;^ the
latter, or converted to his own
nse. No recovery, therefore, can
be had under these circumstances
aginst the executor or the sureties
on his official bond ; Wooten v.
Burch ; Golder County v. Little-
john, ante, 703 ; and the remainder-
man must seek redress through a
bill in equity against the personal
representatives of the first taker,
for an account, and that they be di-
rected to surrender so much of the
property as remains, and make
compensation for any part of it
that has been lost or destroyed
through his default. Westcott v.
Gddy, 5 Johnson Ch. 334; French
V. Hatch, 8 Foster, 331.

It is well settled in accordance
with this principle, that where
furniture, books, jewelry, farming
implements, or other chattels of a
like kind, which cannot be en-
joyed without using them, are spe-
cifically bequeathed to one for life
with remainder over, the legatee
is entitled to the custody and pos-

session of the goods as the only
means of giving effect to the will,
and should not be required to give
security, because his inability to
comply with the demand might
frustrate the bequest. DePeyster
V. Glendenning, 8 Paige, 295, 303 ;
Kinnard v. Kinnard, 5 Watts,
109 ; Brinton's Estate, 1 Id. 203 ;
Rainey v. Heath, 2 Patton &
Heath, 206. The executor's duty
consequently is, to hand the prop-
erty over to the first taker, without
imposing any other condition than
that of signing an inventory for
the information of the persons
who may be ultimately entitled
under the will. Healey v. Top-
pan, 45 New Hampshire, 243,
261; Rowe v. White, 1 C. E.
Green, 411; Homer v. Shelton, '2
Metcalfe, 194, 205. Formerly,
said Wilde, J., in the case last
cited, " the rule in chancery
was to require security from the
tenant for life of personal property,
in favor of the person entitled to
the remainder. But in Foley v.
Burnell, 1 Bro. C. C. 279, Lord
Thurlow, says, that the cases as to
tenant for life giving security for
goods have been overruled " and
the court now demands only an
inventory, which is more equal
justice; as there ought to be dan-
ger in order to require securitj\
If there should hereafter appear
good cause to apprehend that the
property would be wasted, secre-
ted or removed by the plaintiff, in
such a case a court of chancery
might undoubtedly interfere. 2
Kent Com., 3 ed. 354 ; Langworthy
v. Chadwick, 18 Connecticut, 42.
This rule appears just and rea-

HOWE V. EARL OF DARTMOUTH.

707

sonable in respect to bequests
of goods and chattels for life, with
remainder over, where the tenant
for life is entitled to the use of the
goods and chattels. But as to
gifts by will, of stocks, or money,
with remainder over of the capi-
tal, or stocks, a different rule may
apply. In such case the executor
may be entitled to hold the |)rop-
erty in trust until the death of the
legatee for life, taking the interest
or income only to his own use,
unless some different provision
should be contained in the will."

The case is no longer the same
where money, or securities which
resemble money in the capacity
for bearing interest, are bequeathed
to two or more persons succes-
sively, for as property of this de-
scription may be enjoyed without
actual possession, there is no
ground for jeoparding the inter-
est of the remainder-man by deliv-
ering the corpus of the fund to
the legatee for life, and it should
be held or invested by the execu-
tor; Homer v. Shelton, 2 Metcalf,
194, 205 ; see Golder County v.
Littlejohn ; Woolen v. Burch, 2
Maryland Ch. 190 ; Spear v. Tink-
ham, 2 Barb. Ch. 211 ; The Trus-
tees V. Cole, 20 Barb. 321, 330 ; 16
New York, 83, 90, 95; Field v.
Hitchcock, n Pick. 182; Clarke
V. Burdick, 6 Rhode Island, 151.
A gift of money to one for life and
then over " is a gift of the interest
only, and it is the executor's duty
to invest the monej', and pay the
income to the person entitled for
life, and preserve the principal for
Mm who is entitled to' take after-
wards ; " Field V. Hitchcock.

Such at least is the logical con-
clusion, although some of the
autliorities indicate that a pecuni-
ary legatee for life is entitled to
receive the principal, on giving
security that it shall be paid at his
decease to the remainder-man ; see
Eichelberger v. Barnitz, 11 S. &
R. 293 ; Kinnard v. Kinnard, 5
Watts, 108; Brinton^s Estate, 7
Id. 203 ; Rodgers v. Rodgers, 7
Watts, 15 ; Burnett v. Lester, 53
Illinois, 325, 335 ; and others ;
that it should be handed over to
him on his personal responsibility)
unless there is just cause to appre-
hend that he will remove the fund
beyond the jurisdiction of the
court, or convert it absolutely to
his own use ; Roive v. White, 1
0. E. Greene; Waldo v. Cum-
mings, 45 Illinois, 416, 421, 430.

By Act of Assembly in Penn-
sylvania, "wherever any personal
property, or the income, profits, or
dividends thereof shall be be-
queathed to any person for life, or
for a term of years, or during any
other limited period, or upon a
.condition or contingency, the exe-
cutor shall deliver the property
so bequeathed to the legatee, on
his giving such security in the
Orphans' Court as will secure the
interest of the person or persons
entitled in remainder ; see Cleven-
stine^s Appeal, 3 Harris, 495 ;
Bedford'' s Appeal, i Wright, 18;
Green's Appeal, 6 Id. 25.

In Kinnard v. Kinnard, 5
Watts, 108, the court held that
although security cannot ordina-
rily be required for the return of
goods which have been specifically
bequeathed for life, with a limita-

708

BEQUESTS FOE LIFE. CONVERSION.

tion over, yet where the subject
matter of the gift is money, the
legatee is not entitled to recover,
■without securing the remainder-
man. In this case the testator
bequeatlied all his estate to his
"wife during her natural life, and
directed that after her decease it
should be sold, and one-half the
proceeds paid to her, and the resi-
due distributed among his neph-
ews. Kenned}', J., said, that the
direction that the property should
be disposed of after the "wife's
death, sho"wed that the intention
■was that she should have the use
of it in kind while she lived. As
it regarded that portion of the
estate which consisted, of goods,
all that could be required of
tiie first taker was to sign
and deliver an inventory of the
goods, acknowledging that they
were his for life only, and that
whatever was not necessariljr con-
sumed in using them was to be sur-
rendered at his death. It was in-
deed questionable whether a leg-
acy for life of things quas ipso
consumuntur uhu did not confer
an absolute right, and if so, a gift
over would be repugnant and
invalid ; see Iferrill v. Emery, 10
Pick. 517, 512; Bandall v. Rus-
sell, Z Merrivale, 194 ; unless the
quantity was so great as to indi-
cate that they were meant to be
converted into money in order to
make the bequest available, when
the residuary bequest would be
good, and the first legatee required
to give security. Bixt where the
legacj' consisted of money, or was
to be converted into money by the
terms of the will, it was the inva-

riable practice to require security
of the first legatee, although he
might be perfectly responsible,
and there was no reason to believe
that the property would be wasted
or destroyed while in his pos-
session.

It has been held, and seems to
be generalljr conceded that where
stocks, bonds, or other choses in
action are bequeathed in terms
which confer the entire ownership,
subject to be divested if the lega-
tee dies without children, or the
happening of any other future
event, he may claim the property
at the expiration of a j-ear from
the testator's death, without giving
security for repayment in case the
contingency should happen. Con-
diet V. King, 2 Beaseley, 315, 383 ;
Raney\. Heath, 2 Patton & Heath,
206, 224 ; Rowe v. White, 1 C. E.
Green, 411 ; Griffiths v. Sviith, 1
Vesey, Jr. 97 ; Homer v. Shel-
ton ; Fisk v. Cohb, 6 Gray, 1 44 ;
see The Trustees v. Kellogg, 16
New York, 83, 95. In Homer
V. Shelton, the bequest was to the
plaintiff for his own use forever,
with a proviso that if he should
die leaving only one child living
at his death, such child should
take one-third only of the legacy,
and the remainder should go to the
testator's other children. Wilde,
J., said, " the plaintiffis not tenant
for life, he has an estate in fee
simple in the real estate devised to
him, and an absolute ownerslup of
the personal property. Words
which give a fee in real estate,
give an absolute property in per-
sonal estate. It is true there is a
contingent limitation over by way

HOWE V. EARL OF DARTMOUTH.

709

of executorj'' devise, but the con-
tingency may never occur. The
plaintiff, though he has but one
child, luaj^ have others or lose the
one now living : " It was held in
like manner in Fish v. Cohb, that
a legacy to one, his heirs and as-
signs, with a bequest over in case
he dies without issue, is to be
paid to him without requiring
security, although he renounces
the office of executor to which he
has been appointed by the will,
and removes to another state, un-
less there is danger of his wasting,
removing or secreting the property.
On the other hand in Eichel-
berger v. Barnitz, IT S. & R. 293 ;
where a pecuniary bequest was
made to a grandson, with a pro-
viso that if he should die without
issue the money should be divided
among the testator's children,
the court held the limitation good ,
and that the legatee was not
entitled to the possession of the
fund without securing the ex-
ecutory devisee. A similar view
was taken in The Trustees v. Cole^
20 Barb. 321 ; and The Trustees v.
Kellogg, 16 New York, 83, 90, 95;
although Denio, C. J. dissented.
Whatever the rule may be under
ordinary circumstances, it is clear
that where there is reason to
believe, that one to whom personal
effects have been bequeathed for
life or years, or subject to a dives-
ting clause, will waste or misap-
propriate the property if it is
entrusted to his care, he may be
required to give security for the
protection of those who are to
come after him,' Hudson v. Wads-
worth, 3 Conn. 348 ; Langworlhy

V. Chadwick, 13 Id. 42 ; Eichel-
berger v. Barnitz, 17 S. & R. 293.
In Langworthy v. Chadwick, the
mere fact that the legatee was
about to remove to another state,
was held to render it incumbent
on him to secure the executory de-
visee, although there was no dis-
tinct allegation of insolvency ; and
sucli is clearly the law where
it appears that he is insolvent,
and intends to put the property
beyond the jurisdiction of the
court; MoffattY. Moffatt, 10 Hen.
& Munf. 593 ; Howard v. Howard,
4 C. E. Green, 468.

The obligation of a legatee for
life of specific cliattels, depends on
the language of the will and the
nature of the propertj' bequeathed.
If the gift is of corn, wine, hay,
wearing apparel, or other things
which cannot be used without con-
suming them, the " usufruct" is so
nearlj- equivalent to ownership,
that the first taker may deal with
the goods as he thinks proper, and
those who follow him, will at the
most be entitled to such articles
as remain in specie at his death.
Holmari's Appeal, 12 Harris, ITe,
1Y8; Kinnard v. Kinnard, 5
Watts, 108, 110; The Trustees v.
Kellogg, 16 New York, 83, 93.
ante, 643. In general, one who has
the right to consume may alien,
because he would otherwise have
no motive for economy. " When
an absolute power of disposal is
given to the first taker, he may
defeat the bequest over, and there-
fore it is void. Patterson v. Ellis,
11 Wend. 259, 21"? ; Pinkney v.
Pinkney, 1 Bradford, 269, 212.
In Merrill v. Emory, 10 Pick.

710

BEQUESTS FOR LIFE. — CONVERSION.

SOY, the testator bequeathed all
the family stores that might be
on hand at his death, to his wife
for her life, with a proviso, that
all that she left should go to
his granddaughter. His wife
survived him, but died some
days afterwards without having
consumed any portion of the
stores, and it was held, that they
belonged to her administrator, and
not to the granddaughter. The
weight of authority is in accord-
ance with this decision, that
chattels which are necessarily con-
sumed in using them, cannot be
made the subject of a limitation
over, after a specific bequest for
life ; The State v. Warrington, 4
Harrington, 55 ; Cady v. Wes-
cott ; Calhoun v. Ferguson, 3
Richardson Eq.'160, 16T ; Healy
V. Toppan, 243, 262.

A different rnle prevails where
the legacy consists of plate, books,
furniture or other chattels, which
may be put to their appropriate
use without material loss or dimi-
nution, and it will tiien be incum-
bent on the legatee to take care
that the property be not needlessly
injured or destroyed. He will ac-
cordingly be answerable for in-
juries arising from negligence,
though not for loss or decay
through natural causes, or for the
wear which is inseparable from
use Calhoun v. Ferguson, 3 Rich-
ardson Eq. 160, 167; Weeks v.
Weeks, 5 New Hamp. 52'7 ; French
V. Hatch, 8 Poster, 331 ; Woods v.
S'lllivan, 1 Swan 508.

In FIolman\'> Appeal, the testa-
tor devised all his estate real and
personal property to his wife during

her widowhood or natural life, with
a provision that on her death or
marriage, it should be sold and the
proceeds distributed among -his
children. The widow who was
also named executrix, took posses-
sion of the personal property which
consisted of horses, kin e, household
furniture, fann implements and
some grain and liquors. She died
after a lapse of thirty years, and
it became a question whether
her estate was answerable for the
articles which had disappeared
during her life. Lewis, J., said
that " a life estate in goods is in
many respects analogous to the
usufruct of movables under the
civil law, and depends for its effect
on whether the legatee can have
the benefit which the testator pre-
sumably intended to confer, and
3'et leave the property intact for
his successors. Thus provisions,
grain and liquors are wholly con-
sumed when one uses them, while
cattle, hangings, beds and other
movables, suffer some diminution
by use, and even from the bare
effect of time, and at last perish.
He who has the " usufruct" of a
totality of goods, has also the
right to enjoy and use all the
movable effects, according to their
nature ; to consume what is liable
to be consumed in its ordinary use,
to gather from the living creatures,
the profits which they yield, and
receive the interest of debts which
bear interest, and in fine to the ap-
propriate use and enjoyment of
everything according to its kind.

Things which are not consumed
immediately by the use of them,
may be put to the use for which

HOWE V. EARL OF DARTMOUTH,

711

they are designed, without abus-
ing them, taking due care of
them, and they are to be restored
to the proprietor in the condition
in which they shall happen to be
after the usufruct has expired, al-
though wasted and diminished by
the effect of the use, provided the
usufructuary has not misused them.
Things which are consumed in the
use, become the property of the
usufructuary, since he cannot use
them but by consuming them. In
the case of living animals which
reproduce themselves, the usu-
fructuary is entitled to the progeny ;
but in that case he is bound to
preserve entire the number he has
received, so that when any of
them die he must fill up their
places out of the fruits ; see Flow-
ers V. Franklin, 5 Watts, 265.
Money in possession, or in action,
is not necessarily impaired by the
use, because the use of money is
nothing more than the interest or
dividends, which may be enjoyed
by the usufuctuary without dimin-
ishing the principal; 1 Donat, 61,
tit. 11; 4 Russell's Rep. 200; 3
Merri vale's Rep. 194 ; 7 Vesey,
Jr. 137; 9 Id. 549; 2 Kent, 354 ;
5 Watts, 108 ; 7 Watts, 203.

In the case under consideration
the presumption after such a lapse
of time, was strongly in favor of the
legatee. No evidence of negligence
had been adduced, and it might rea-
sonably be inferred, that the miss-
ing articles had perished or been
worn out without default on her
part."

It seems that a legatee for life
is ordinatially entitled to any ac-
cessions which the property may

receive from his skill and industry,
or through the operation of nat-
ural causes; Calhoun v. Fargu-
son, 3 Richardson Eq. 160, 167 ;
Saunders v. Haiighton, 8 Iredell
Eq. 217, 222 ; Woods v. Sullivan,
1 Swan, 507. " The life tenant is
entitled to all the increase of
flocks and herds, be3'ond what is
necessary to keep up the stock,
and therefore is b^und to the exer-
cise of extraordinary diligence for
keeping it up, and delivering it
over undiminished to the remain-
der-man ;" Calhoun v. Ferguson,
ante, 643.

The question depends in this, as
in most other cases where one
takes under a will, on the testator's
intention as disclosed in the in"
strument ; Calhoun v. Ferguson ;
Flowers v. Franklin, 5 Watts,
258.

In the case last cited, the testa-
tor gave his wife his farm and
dwelling house during her life, to
be " improved " for her use and
that of the family, and also " all
his farming utensils, cattle, sheep
and swine, to he kept on the farm,
and used in improving the same,"
with a further clause providing
that the real and personal estate
thus given, should vest at her de-
cease in his children and grand-
children ; Kennedy, J., said that
the testator's object was to confer
all his personal estate on the leg-
atee for the term of her life, for the
benefit of his family as a whole-
His intention clearly was that she
should deal with the property as
he had done himself, supplying
what was used or worn out, and
rearing the progeny of tlie ani-

712

BEQUESTS FOR LIFE. CONVERSION.

mals to fill the place of those who
died. It followed that the cattle,
grain, and farming implements on
hand at her death, though not tlic
same as those she had originally
received, must be regarded as hav-
ing been substituted for them, and
within the reach and operation of
the will. The remainder-men were
consequently entitled to them
under the bequest, as against the
executors of the first legatee. It is
held on like grounds in South Car-
olina, that where the whole of an
estate consisting of land under
cultivation as a farm, with the
stock of slaves, cattle, agricultural
implements and provisions, is be
queathed to one for life with re-
mainder over, it is the duty of the
life tenant to maintain the property
in the same condition, replacing
articles which are consumed or
worn out, b}'' others, although he
may not be liable for a partial de-
terioration not due to negligence,
and compensated b}' an increase of
value in other respects ; see Rob-
ertson V. Collier, 1 Hill Ch. 310;
Patterson v. Devlin, 1 McMullin,
459 ; Calhoun v. Ferguson, 3
Richardson Eq. 160.

The question is to a great ex-
tent one of intention, and if the
will indicates that the power of
the legatee for life is to be abso-
lute, those who comes after him
must take the property as he
leaves it, without a recourse to
his estate for what he has used
or aliened ; German v. German,
3 Casey, 116. The principle is
clearly stated in the judgment de-
livei'ed in this case by Chief Jus-
tice Lewis. " Personal property

is so transitory and destructible
in its nature, that a right to enjoy
it during life, necessarily carries
with it privileges, which do not
belong to the grant of a life estate
in land. A life estate in personal
property undoubtedly gives the
donee a right to consume such
articles as cannot be enjoyed with-
out consuming them, and a right
to wear out by use such as cannot
be ■ used without wearing out.
But the extent of liability over to
the remainder-men, is to be gov-
erned bj' the intention of the
donor, as manifested in the in-
strument which evidences the gift.
It is in general, a just rule that
where a life estate only is given,
and the remainder is given over
to others, the representatives of
the donee for life should account
for the value of the property ac-
cording to the principles of the
civil law as adopted by the court
of chancery ; Justinian's Inst.,
book 2, tit. 4; Domat, pt. 1,
book 1, sec. 989 ; Civil Code,,
Louisiana, art. 542 ; Frederieian
Code, part 2, book 4, tit. 5, sec.
3 ; Holman^s Appeal, 12 Har-
ris, 178. Where the parties claim
under a will, the intention of
the testator is to be collected
not from particular clauses, but
from tlie whole instrument, and
where repugnant clauses appear,
the last is to be regarded as ex-
pressing his final design on the
subject."

" By the will of John German,
his wife Barbara, was to have
' the privilege to choose and keep
during her natural life, or widow-
hood, all such personal property

HOWE V. EARL OF DARTMOUTH.

713

as she may think proper.' If
this clause was the only one in
the will bearing on the question,
the widow's estate might be held
to some measure of accountability
for the articles used, consumed or
disposed of during her life. But
nothing is given over at her death
except ' such property as may
then be left.' When it is considered
that the testator professed an in-
tention to dispose of his whole es-
tate, the implication seems clear
that the widow's representatives
were not to be held accountable
for anything beyond the articles
'left' at her death. An}^ other
construction by which a claim
upon her estate is reserved, would
leave her husband intestate as to
such claim, and this is manifestly
contrary to his intention. But
the personal property which the
widow is at liberty to choose, does
not include money in possession
or choses in action. The clauses
of the will directing the sale of
the articles not selected by her, as
well as those which may be left at
her death, show that the testator
in this part of his will, did not in-
tend to embrace any other than
such articles as are usually sold by
executors for the paj'ment of
debts, and for the purpose of dis-
tributing the proceeds." Among
the goods selected by the widow
were a note of $98, and $221 which
had been received by the testator for
produce shortly before his death ;
these items were deducted and
judgment entered in her favor for
the residue without security.

In French v. Hatch 8 Foster,
331 ; it was held that a bequest of

bank stock to the testator's wife for
life, with a proviso that she should
be at liberty to use so much of the
principal as might be required for
her comfortable support and main-
tenance, did not confer an ab-
solute right of property, and that
the court would determine whether
the legatee had gone beyond the
bounds prescribed, and make tier
estate answerable for any excess.
But the better opinion seems to
be that such a gift empowers the
donee to say what his needs re-
quire, and that his judgment is
not subject to control or revision.

Strictly speaking, a residuary
legatee is not entitled to interest
as such, although the income which
is or ought to have been derived
from the estate will go to augment
the fund for his benefit. But while
a residuary legacy does not carry
interest as against the executor,
unless the latter is in default, a
different rule prevails as between
one to whom such a bequest is
made for life, and the remainder-
man. For as each taker is pre-
sumably intended to have an equal
benefit, so the whole income of the
estate before it is finallj"- converted
into money, and invested in due
course of law, and which is not
required for other purposes, will
be regarded as principal for the
benefit of the remainder-man, while
the life tenant will be entitled to
interest from the testator's death,
on the value of the fund as thus
augmented ; Williamaon v. Wil-
liamson^ 6 Paige, 298.

In Williamson v. Williamson,
various pecuniary legacies were
bequeathed, and the residue given

714

BEQUESTS FOE LIFE. — CONVERSION.

;he testator's wife, with a limitation
)ver, and the point was whether
;he income during the first year
ifter his decease, on so much of
;he fund as would be needed when
;he year elapsed for pecuniary lega-
iies which did not bear interest
ill then, belonged to the widow,
)r fell into the bulk of the estate,
ind were to be invested for her
jenefit and that of the remainder-
nan. The court adopted the latter
new on the authority of the prin-
iipal case ; but held that she was
intitled to interest from the time
vhen tlie will went into effect on
he whole amount of the fund as
inall}' ascertained. Chancellor
iVal worth said : " The children to
vhom pecuniary legacies were
riven, were all otherwise provided
or by t)ie testator, so that the
nterest on their legacies was not
vanted for their support. And as
10 time was prescribed in the will
or the payment of such legacies,
ixcept that they should be paid
is soon as convenient, the execu-
ors were right in supposing that
hey came within the general rule,
,nd that the legatees were not
mtitled to interest until the ex-
)iration of one year from the
estator's death. The appellant's
ounsel supposes that the bequest
if the use of the residuary estate
o the widow during her life or
ridowhood, depends upon the
ame i^rinciple, and that the whole
iicome of the personal estate for
he first year is to be added to the
;eneral residue, giving to her the
nterest on this accumulated fund,
nly from the expiration of the
irst year.

The result of the English cases
appears to be, and I have not been
able to find any in this pountry
establishing a different principle,
that in the bequest of a life estate
in a residuary fund, and where no
time is prescribed in the will for
the commencement of the interest,
or the enjoyment of the use or
income of such residue, the legatee
for life is entitled to the interest
or income of the clear residue as
afterwards ascertained, to be com-
puted from the time of the death
of the testator. All the cases
which appear to conflict with this
rule, except the two decided by
Sir John Leach, which are no
longer to be considered as author-
ity, will be found to be the cases
in which the testator had directed
one species of propertj'^ to be con-
verted into another, or the resid-
uary fund to be invested in a
particular manner, and had then
given a life estate in the fund as
thus converted or invested. In
such cases it appears to be consis-
tent with the will of the testator
to consider the life interest as
commencing when the conversion
takes place, or the investment is
made, either within the year or at
the expiration of that time. But
as a year is considered a reason-
able time for the executor to com-
ply with the testator's directions
as to the conversion or investment,
the legatee for life cannot be kept
out of the interest or income
beyond that period. In the case
under consideration, there is no
direction for a conversion of the
fund, or for the investment thereof
in any particular manner, before

HOWE V. EAKL OP DARTMOUTH.

715

the right of the widow to the use
thereof for life was to commence.
And as it appears that a great
portion of the personal estate was
in bonds and mortgages and other
securities, which were drawing
interest at the time of the death
of the testator, there is no good
reason for depriving her of the
use of the residuary estate for an
entire year.

But although the surrogate's
decision was correct as to the
widow's right to the interest of
the residuary estate from the
death of the testator, the princi-
ple upon which such interest is
computed is altogether erroneous.
It was not the intention of the
testator to give his wife the inter-
est or income of his whole perso-
nal estate, until the debts and
legacies should be paid, or for the
term of one year, and then the
interest u|)on the residuarj^ estate
after that time. But it was Ids
intention to give her the use or
income of the same residuary fund,
the capital of which was to be
distributed to his three sons upon
her death or re-marriage.

" The case of Covenhoven v.
Shuler, 2 Paige, Rep. 132, and
the authorities there referred to,
settle the principle that where
there is a general bequest of a
residue of the testator's personal
estate for life, with a remainder
over after the death of the first
taker, the whole residuary fund is
to be invested for the benefit of
the remainder-man ; and tlie ten-
ant for life is only entitled to the
intei'est or income of that fund.
And to ascertain the amount of

such residuary fund, so as to ap-
portion the capital and the income
properly between the remainder-
man and the tenant for life, the
executor, upon settling the estate
at the end of the year, must esti-
mate the whole estate at what is
then ascertained to have been its
cash value, at the testator's death,
after paying all debts, legacies,
and expenses of administration,
and otlier proper charges and
commissions. But, in making
such deduction for legacies pay-
able at a future da^', and which do
not draw interest, the whole
amount of the legacies is not to be
deducted, but onlj' such a sum as,
if properly invested, would at the
time when the legacies become
pa3'able, have produced the requi-
site sum, exclusive of all expenses
and risk of loss. The rule in
England, as between the legatee
for life and the remainder-man, is
to invest, or consider the fund as
invested, in the three per cents.,
being two per cent, less than the
legal rate of interest in that coun-
try ; Howe v. JSarl of Dartmouth,
1 Yes. 137. Upon the same prin-
ciple, according to the legal rate
of interest here, the income of a
five per cent, stock, which stocks
can generally be purchased at
about the par value, maj' be con-
sidered as a reasonable discount
upon a legacy payable at the end
of the year, for the purpose of
ascertaining the value of the resid-
uary estate at the death of the
testator." See 1 American Lead-
ing Cases, 634, 5 ed.

The object of the rule that
perishable and wasting property

716

BEQUESTS FOR LIFE. — CONVERSION.

3omprised in a bequest for life,
should be converted into money,
is to equalize the benefit to the
Irst taker and the remainder-man,
and hence a delay in the sale
should not be allowed to affect
bhe result. The income of the
estate during the interval will
consequently be added to the pur-
chase-money, and the whole in
vested, after deducting so much
as will afford the legatee for life
the interest to which he is entitled
on the market value of the prop-
erty from the testator's death. See
Eealy v. Toj)pan, 45 New Hamp.
243 ; Einmouth v. Brigham, 5
Allen, 2Y6. This may be illustra-
ted by an example. A leasehold
estate which has been sublet for
$10,000 per annum, and which will
expire in five years, is bequeathed
to one for life with a remainder
over. It will bring $40,000 if
thrown at once into the market,
but the executor collects the rents
for two years, and then sells the
lease for $25,000. If the amount
which has been received from the
sub-tenants is paid over to the
first legatee, he will be largely
a gainer by the postponement of
the sale, while the remainder-man
will lose in an equal ratio. The ex-
ecutor is therefore chargeable with
an amount as capital, which would
if invested at the testator's death,
produce the sums which he receives
when they are actually received,
and the residue will be viewed as
income, and distributable as such ;
KinmoiUh ^v. Brigham ; William-
son V. Williamson, 6 Paige, 298.

In Kinmouth v. Brigham, 5
Allen, 2'I6, the material facts as

given in the opinion of the court
were as follows : " The testator
who died February 22d, 1860, by
his will, after certain specific lega-
cies therein set forth, bequeathed
the whole residue of his estate
to trustees, in trust to invest the
same carefully, and keep the same
safely invested, and as often as
once in each year to divide the net
income thereof into three parts,
one of which they should pay over
to his wife during her natural life.
The same persons were named as
executors and trustees.

A part of his estate was his
interest in a limited partnership,
which was formed September 4th,
1858, to continue for four years;
and to which he liad contributed
$50,000 as special partner. By
the articles of partnership, he was
to be entitled to one-half of the
profits, and might withdraw the
same semi-annually ; any balance
of profits left in the business was
to be on interest ; he was to bear
one-half of the losses to the extent
of his capital invested, and make
good the same serni-annually, and
at the end of the term, the general
partners were to take the stock,
fixtures and goodwill, and to pay
over to him the capital which he
had contributed, and the net profits
then due. It was also provided,
that if either of the general part-
ners should violate any of the part-
nership covenants, the testator and
his representatives should have the
right to dissolve it, and take pos-
session of the stock, stand, prop-
erty, and business, and carry on
the business on his or their own
account ; and that in case of the

HOWE V. EARL OF DARTMOUTH.

ri7

death of either of the general
partners within two years, the
partnership should continue until
the time of the next semi-annual
accounting, and the testator and
his representatives should then
have the same right to take the
property and the business. By
the will, the executors were au-
thorized not to aA'ail themselves
of this last provision, unless they
should see fit.

The business had been estab-
lished and carried on by the tes-
tator, previous to the formation
of the 'special partnership. The
special partnership has proved
extremely profitable, the testator
having received a large sum as
profits before his death, and the
executors have received as profits
and capital $158,558.44, since their
appointment.

The plaintiff now seeks to com-
pel the executors to distribute the
sum of $158,558.44, as the net in-
come of the estate.

The English rule is perfectly
well settled that where the residue
of personal property is left with-
out specific description, and is
given in succession to a tenant for
life and remainder-man, it shall be
invested in a permanent fund so
that the successive takers shall
enjoy it in the same condition,
and with the same productive capa-
city. The reason of the rule is
the obvious and just consideration
that the intention of the testator
is expressly declared to give the
enjoyment of the same fund to the
successive takers, and that this can
only be done by fixing the value
of the fund at the time when

the right of the first taker to its
use commences. The leading
case is Rowe v. Dartmouth, 1 Ves.
ISY ; This was followed by Fearus
V. Young, 9 Ves. 549 ; where the
doctrine, was applied to- the case
of money invested in a partner-
ship at the death of the testator.
Many of the subsequent cases are
collected and reviewed in 2 White
and Tudor Lead. Case in Equity,
(Amer. ed.) 686 and seq., in the
notes to Howe v. Dartmouth, and
these with others have been care-
fully presented in the argument of
this cause.

In the application of this rule
the English courts of chancery by
a long course of decisions, have de-
termined that an investment in
the three per cents, is to be gen-
erally regarded as the onlj' invest-
ment which will be sanctioned or
directed by the court as safe and
permanent, though in a few cases
a reference has been made to a
master to find whether an existing
security at a higher rate of interest
is not absolutely safe and more
beneficial to all the parties ; Colde-
cott V. Goldecott, 1 Young & Coll.
312, Y3Y. But wherever property
is specifically bequeathed or where
the intention can be gathered from
the whole will, that it should be
enjoyed in specie, the rule does
not apply.

And the rule itself, so far as it
requires an investment in public
securities, has never been adopted
in this commonwealth ; as was
said by Chief Justice Shaw, in
Lovell V. Minot, 2 Pick. 119;
there are no public securities in
this country, which would answer

718

BEQUESTS FOR LIFE. CONVERSION.

these requisitions of an English
court of equity, and the only rule
which has been recognized by this
court as obligatory upon a trustee
in making investments is, that he
shall act in good faith and in the
exercise of sound discretion.

In Lovell v. Minot, an investment
by a guardian in the promissory
note of a person of good credit
secured bj' a pledge of stock in a
manufacturing companj', -which
was then selling in the market at
above its par value at the rate of
about three-quarters its par value,
was held to be made with sound
discretion.

In Harvard College v. Jmory,
9 Pick. 446, an investment was
made by trustees under a will, of a
fund, the profits and income of
which were to be paid to the testa-
tor's widow for her life, and after
her decease the fund was to be dis-
tributed. It was held that the
trustees were authorized to invest
iu the capital stock of an incor-
porated manufacturing company,
and of an incorporated Insurance
Company, and that the actual pro-
fits and dividends received from
such investments where rightly
paid to the widow. The will
itself expressly empowered the
trustees to invest the fund in safe
and productive stock in the public
funds, bank shares and other stock
according to their best judgment
and discretion, and enjoined atten-
tion in the choice of funds, and in
the punctual collection of the divi-
dends interest and profits thereof.
A large part of the testator's
property consisted of manufactur-
ing and insurance stock.

But although in this common-
wealth there are no investments
regarded as so absolutely secure
as to make a choice of them obli-
gatory upon trustees, and in all
cases a considerable latitude is
allowed, yet it has never been held
that trustees for successive takers
are at liberty to disregard the
securit}' of the capital, in order to
increase the income, nor where
property is of a wasting nature, is
an investment in it consistent with
their duty in the absence of spe-
cific directions in the creation of
the trust. They are equally bound
to preserve the capital of the fund
for the remainder-man, and to se-
cure the usual rate of income upon
safe investihents for the tenant
for life, and to use a sound discre-
tion in reference to each of these
objects. If there is no specific
direction, and they are charged
merely with the general duty to
invest, they cannot postpone the
yielding of income for the increase
of capital, nor select a wasting or
hazardous investment for the sake
of greater present profit. And
the rule is the same in regard to
property which comes to the trus-
tees from the testator, not specifi-
cally bequeathed, as it is in regard
to making new investments. If
the investment is not one which
this court would sustain them in
making it should not be allowed
to continue, but should be con-
verted. Its value as a fund should
be ascertained as of the time when
the enjoyment of the income of it
is to commence, and the fund
treated as if it had been at that
time converted into such an invest-

HOWE V. EARL OF DARTMOUTH,

719

ment as the court would sanction.
In determining this value, it is not
always practicable to settle it with
exactness until the conversion is
actuallj' made, especially in cases
where the capital is more or less at
risk. The most just rule seems to
he where reasonable care and pru-
dence have been used by the
trustees in making the conversion,
to treat the whole sums received
from time to time until converted
as parts of the estate, and to find
what sum at the time to which the
conversion has reference, would
be equivalent to the amount ac-
tually received, at the time it was
received, and to treat that sum as
capital and the remainder as in-
come. Thus, if the residue con-
sisted of notes or obligations paya-
ble at a future day without interest,
and the tenant for life were enti-
tled to the income from the death
of the testator, when the money
was received so much only of it
would be treated as capital, as, if
invested at the death of the tes-
tator, would have produced the
whole amount at the time the
notes or obligations were payable,
and the rest would be income. If
the property were embarked in a
commercial venture, or were in the
shape of a bottomry bond or other
hazardous condition, the trustees
would be required to use suitable
skill and caution in collecting
whatever could be obtained from it
and the value of whatever was or
ought to have been realized from
it, would be fixed as of the time of
the testator's death and treated as
capital. And on the other hand
where the property is of a wasting

nature as terminable annuities,
leases, or the like, the value of the
investment at the testator's death
should be ascertained, and what
should be regarded as income be
computed upon that basis.

In applying the principles which
we have stated, to the case at
bar, it is conceded that the in-
come to which the plaintiff is en-
titled, should commence and be
computed from the death of her
husband. We are of opinion that
there is nothing in the will, which
indicates an intention that she
should enjoy the income of any
particular property, which the tes-
tator possessed in specie, but the
whole residue was to be alike sub-
ject to investment by the trustees.
The reference to the special part-
nership, is only in connection
with instructions to the executors
as to their duty in a certain con-
tingency. In the next place, we
cannot regard the investment by a
special partner in a trading part-
nership, as such an investment as
the court would sanction. It is
obviously difficult in this case, to
determine what was the value of
the investment at the testator's
decease, b}' any other mode than
a computation based upon the
whole product ultimately realized
from it. It included not merely
the fifty thousand dollars contrib-
uted by the testator to the enter-
prise, but the interest in an es-
tablished and lucrative business,
with the right to the services for
a fixed period of all the general
partners. The whole was at risk
until the partnership concerns were
all settled. It soinewhat resembles

720

BEQUESTS FOR LIFE.

•CONVERSION.

property invested in a ship, or
upon a whaling voyage or long
commercial venture, from which
returns are received from time to
time, but with liability to losses
which may require the whole to
be refunded, and where the suc-
cessful progress of the enterprise,
so far, may have enhanced the
value of the property far beyond
its original cost. We think such
returns could not be justly treated
between tenant for life, and re-
mainder-man, as the income of an
investment.

We think therefore, that upon
a just construction of the will,
equity will require that the profits
received by the executors from
the special partnership, should not
be regarded or treated exclusively
as income, but that they be treated
when received from time to time,
as property belonging to the es-
tate, a part of which is to be in-
vested as capital, and a part dis-
tributed as income, which parts
are to be ascertained by finding
what sum, if received at the death
of testator, would amount with in-
terest at the rate of six per cent.,
and making annual rests to the
sum actually received at the time
it was received, and that the sum
so found should be invested as
principal and the remainder dis-
tributed as income."

In Healy v. Toppan, 45 New
Hamp. 243 ; the court arrived at
a similar result, although by a
somewhat different process. The
testator after giving some incon-
siderable pecuniary and specific
legacies, bequeathed one-half of his
real and personal estate, to his

wife absolutely, and the remaining
one-half to her for life, with a be-
quest over, in trust to collect and
pay the income thereof to his
nephews and nieces, and distribute
the principal when the youngest
should be of age. The personal
property of the testator, amounted
to $90,000, consisting for the grea-
ter part of stock in various corpora-
tions, and in shipping. During the
eighteen months succeeding his
death, the executors carried on the
business, and the pirofits derived
from the vessels were near $18,000,
being forty per cent, upon their ap-
joraised value ; Sargeant, J., said
"it is settled in accordance with
Howe V. Uarl of Dartmouth, that
where perishable or wasting prop-
erty is included in a general resid-
uary legacy to one for life, with
remainder over, the object of the tes-
tator which presumably is that the
tenant for life and remainder-man,
shall derive an equal benefit,
should be carried into effect by
converting the assets into money
for the benefit of all concerned.
This is not an inflexible rule, but
must prevail, unless the will gives
some indication that the property
is to be held and enjoyed specific-
ally by the legatee for life. It
follows, that the vessels which
form a large part of the estate,
should be sold and invested in
permanent securities. They may
last for many years, but they are
exposed to numerous casualties,
and the chances are that many,
if not all of them, will be de-
stroyed, or become unserviceable
during the life estate. The prof-
its realized from the shipping,

HOOLEY V. HATTON. 721

must also be regarded as p"art of consequently be deducted from
the principal of the estate, in which the profits of the shipping and
the remainder-man has an inter- placed to her credit, ante, 696.
est as well as the first taker. The In Earp's Appeal, 4 Casey, 368,
widow is, nevertheless, entitled a bequest of a residue for life, con-
as legatee for life, to five per cent, sisting in part of stock in a manu-
per annum from the testator's facturing company, was held to
death, on the whole value of the entitle the first taker to the yearly
property as measured by what it profits, although accumulated by
brings when ultimately conver- the company and issued in the
ted into money, and so much must form of new or additional stock.

*nOOLEY V. IIATTOjST. [*346]

16 MAY, 1772 ; 6 FEBRUARY, 1773.

REPORTED 1 BKO. C. 0 390, n.l

Repetition' of Legacies.] — A larger legacy given by a codicil
held not to he a repetition of a smaller legacy given by a luill, it
heiiig, in the absence of internal evidence to the contrary, accumula-
tive.

The same specific thing or corpus 'cannot be given twice.

With regard to legacies of quantity, if a legacy of the same amount is
given twice for the same cause, and in the kaiae act, and iotidem
verbis, or only with small difference, it will not be double ; but
where in different writings there is a bequest of equal, greater, or
less sums, it is an augmentation.

The Lady Isabella Finch, by her will,^ bearing date the 30th
of August, 1768, gave to Lydia Hooley, her woman, the plaintiff,
a legacy of 500^. The will was executed in the presence of two
witnesses

By a codicil, she gave Lydia Hooley 60Z., to be paid to her.

' 8. 0., 3 Dick. 461 ; Lofft, 123, iiom. Hatton v. Hooley.

° In this report of Hooley v Hatton, the codicils of Lady Isabella Finch are
not set fortli in the order in which tijey ought to stand. By an extract from
the registry of the Prerogative Court of Canterbury, it appears that the legacy
given to her maid was in these words : — "I give to my woman Lydia Houley
£500, to be paid to her within three months after my ducease."

The first codicil was in these won. s: — "October 28tb, 1769. — This codicil I
add to my will. I give 1000?. to Lydia Hooley.— Cecilia Isabella Finch."

The second codicil was as fol ows :— " I Lady Cecilia Isabella Finch, do desire
this paper writing may be accepted and taken as a codicil to my will. I give
to my servant Lydia Hooley, over and bes.des what I have left her by my will,
an annuity of 12Z. per annum for her life, to be paid quarterly, on the usual
days of payment ; the first of the said payments to commence on the first of the
said days which shall happen after my decease. Lady Isabella Finch further
orders the sum of 60J. to be paid to Rebecca Hooley. — Cecilia Isabella Finch." —
Note by Mr. Miller, 2 Russ. 26!^.
VOL. II 46

722 REPETITION OP LEGACIES.

She afterwards made a second codicil, dated the 28th of Octo-
ber, 1769, in these words: — "I add this codicil to my will: I
give Lydia Hooley 1000^." This was in her own handwriting,
but not executed before witnesses.

The plaintiff filed her bill for the said legacies and an-
r.)tq47-| nuity. The question wa^, whether the last legacy alone
'- J *passed, or the legatee should have both the lOOOZ. and
the 500?.

The Master of the Rolls (Sir Thomas Sewell) had decreed both
to the plaimiif, and the defendant appealed to the Chancellor
(Lord Apsley), who was assisted by the Lord Chief Baron Smythe,
and Mr. Justice Aston. ^

This case after having been argued very much at large (Lofft,
122), stood over till Hilary Term, when the court gave judgment.

Mr. Justice Aston. — There is in this case no internal evi-
dence ; therefore, we must refer to the general rule of law.

The counsel applied the rules laid down in the case of The Duke
of St. Albans v. Beauchrk.'' It is evident those rules are not
general, but go on the particular circumstances of that case. It
was contended there, that the fourth codicil was to stand in the
room of the first.

There are four cases of double legacies :

First, when the same specific thing is given twice, Cujacius
takes a distinction between the same res and the same quantity.
In the first case, it can take place but once, at " eadem quantitas
sfepius prsestari potest: " Dig. 1. 22, sit. 3, 1. 12; Cuj. op. t. 4,
381, 382.

Secondly, where the like quantity is given twice, Lord Hard-
wicke, in Duke of St. Albans v. Beauderk^ alluding to the
particular circumstances of the case, laid down, one only should
be taken, unless an intention appeared to the contrary : Dig. 34,
tit. 4, 1. 9 ; but nothing can be collected from hence, as the title
of the Digest must be attended to, which expressly says auimo
adimendi: Godolphin's Orphans' Legacy, pt. 3, c. 2t), s. 46;
Swinb. 526, 530, edit. 1728, where 100/. and 100?. [are given by
dili'erent instruments], the legatee [is] entitled to both.

The doctrine from the repetition of two equal sums in one will
being bad, and in a will and codicil being good, attributing the
former to forgetfulness, is strange. The case of the Slaves, Dig.
34, tit. 1, 1. 18, and that in 2 D'Aguesseau, Pleading the First,
P3481 ps-g® 21, are upon *entirely different principles. It would
^ -'be strange to suppose Lord Hardwicke applied this as a
general rule, which would be inconsistent with his recognising (as
he did expressly) the authority of Swinb. 526, 530 ; but said that
the case before him was diiferent, from the internal evidence.

' Sir S. S. Smythe, C. B., and Sir Richard Aston, J., had, previous to the
Great Seal being delivered to Lord Apsley as Chancellor, been, with him Lords
Commissioners.

2 2 Atk. 636. ' 2 Atk. 638.

HOOLEY V. HATTON. 72-3

In regard to the cases in the Roman law, — first, where equal
puras are given in two distinct writings, both shall pass by the
Roman law, and the decisions of this Court are agreeable thereto :
Dig. -2, tit. 8, ]. 12; and Gothofred's note in Diversis Scripturis,
Dig. 80, tit. 1, ]. 34; in Eadem Bcriptura, Cujacius, 4, 811, dis-
tinguishes between a corpus and quantity : Voet on the 31 & 32
Digest; Godolphin, pt. 3, c. 26, s. 46; Hwinburne, 520; Ricard,
Traite des Donations, Vol. 1, p. 419, 4'20. 421 ; Wallop v. Hnoett,
2 Ch. Rep. 70 ; Nevjport v. Kynaston, Rep. t. Finch. 294 ; Meno-
chius de Prsesumptionibus, 1. 4 ; 2 Ch. Rep. 58.

Thirdly, as to a less sum in the latter deed, as 100^. by will,
and 50/. by the codicil, the legatee shall take both : Godolphin,
pt. 3, c. 25, s. 19; Ridout v. Payne^ Pitt v. PuJgeon?

Fourthly, as to a larger sum alter a less, Ricard, Vol. 1, p. 451
(Traite de Donations), folio adition, says, where they are in the
mme instrument, the two sums are not blended, but the legatee
has two legacies ; and the heir must show that the one w<is meant
to be blended with the other, the presumption being in favour of
what is written : Windham v. Windham,^ Pitt v. Putgeon* Masters
V. Masters?,

The law seems to be, and the authorities only go to pi*ove the
legacy not to be double where it is given for the same cause in the
same act, and totidem verbis, or only with small difference ; but
where in differerd writings there is a bequest of equal, greater, or
less sums, it is an augmentation, and therefore JLydia Ilooley is
entitled to both the sums of 500/. and luOO/.

Lord Chief Baron SSmythe. — 1 am clearly of the same opinion,
and therefore shall be very short.

*The intention is the clearest rule ; but it is admitted rif,> in-]
on all hands, here is no internal evidence ; we therefore ^ '^ -■
must refer to the rule of law. The rule of law is different with
respect to a corpus and to quantities.

Oil the other side was quoted The Mayor of London v. Russell,
Eep. t. Finch, 290, where the words were satisfied by some goods.
In The Duke of St. Albans v. Peauclerk, the last codicil was evi-
dently the same as the first.

Lord Chancellor Apsley.^ — It would be sufficient for me
to say, I am of the same opinion, if Mr. Justice Aston had not re-
ferred to me with respect to some of the cases.

By the civil law, where two pecuniary legacies were given by
the same will, the legatee must prove it was to be doubled ; but
where the two bequests are in different writings, there the pre-
sumption shall be in favour of the legatee.

jNo argument can be drawn, in the present case, from internal
evidence ; we must therefore refer to the rule of the civil law.

In the case of The Duke of St. Albans v. Beauclerk, Lord Hard

' 1 Ves. 10. J 1 Ch. Ca. 301.

' Kep. t. Finch, 267. < 1 Ch. Ca. 301.

' 1 P. W ms. 421, 423 ; and see Curry v. Pile, 2 Bro. 0. 0. 235.

* Lord Apsley was afterwards Earl of Bathurst.

724 REPETITION OF LEGACIES.

wicke laid down the rule as applicable to that case, and notes a
general rule. " This question," said Lord Hardwioke, "divides
itself into different parts. I am of opinion, that, upon the reason
of the thing, and according to the best writers, these legacies
being in different writings will make no difference in this case."
]S either was it put upon being one instrument. Certainly, they
are different : "And as the will and codicil make but one will."
Lord Ilardwicke quoted Gothofred, " immo hferes priorem probare
inanem esse non tenetur," but did not speak of proving both will
and codicil, as he is represented to do in the report. Then Lord
Hardwicke considered the internal evidence, and added, " by the
power reserved in her will, she has shown her intent to make
them one instrument,^ " which words are omitted in the report.

Lord Ilardwicke probably thought that Sir Joseph Jekyll, in
r*^'^m ^Jasters v. Masters^ gave two reasons, where he *seems to
'- -' give only one. I will hazard a conjecture upon the point-
ing of the report, 1 P.'Wms. 424; the semicolon in the passage
" should not be taken as a satisfaction unless so expressed ; that
it was," &c., was wrongly placed, and should be after the words
" that it was ; " by which means the passage would stand, " should
not be taken as a satisfaction, unless so expres.<ed that it was ; as
if both legacies bad been given by the same will," &c. This case,
therefore, is an authority in point, because there are two distinct
writings.

So in WaJlojJ v. Heweit, 2 Ch. Rep. 70. The Registrar's book
shows that the case went upon the general doctrine ot the civil
law, and not on any internal evidence.

Ills Lordship further cited Windham v. Windham,^ Mayor of
London v. EusselL^ Newport v. Kyuadon,^ Pitt v. Fidgeon,^
8 Huber Prselectiones Leg. Civ. 122, and Stirling's Case, in Scot-
land, 2 Eountaiiihall, 231; and concluded with saying, I have
therefore the satisfaction to think we confirm Lord tlardwicke's
oiiinion.

The decree of the Master of the Rolls affirmed.

Hooley v. Hatton, has usually been referred to as containing a sound
exposition of the law as to the repetition of legacies, when the point to
be determined is, whether a second legacy is to be taken as substitu-
tional or accumulative. See Foy v. Fay, 1 Cox, 164 ; Sidges v. Mor-
rison, 1 Bro. C. C. 390 ; Coote v. Boyd, 2 Bro. C. C. 529 ; Barclay v.

Wainivright, 'a Yes. 465 ; Suisse v. Loivther, 2 Hare, 432 ; Wilson v.

O'Leary, 12 L. R. Eq. 531 ; 1 L. E. Ch. App. 448. And in the case
of Heming v. Glutterbuck, 1 Bligh, N. S. 492, in the House of Lords,

' The Lord Chancellor read the woi-ds marked with inverted commas, from
Lord Hardwicke's original note.
' Hep. t. Finch, 267. » Rep. t. Finch, 290.

■" Rep. t. Finch, 294. ^ i ch. Ca. 301.

HOOLET V. HATTON. 725

Lord Eldon said, that the general principles upon which cases of this
kind are to be decided, are so accurately laid down in the case of
Hooley v. Eatton, that it was unnecessary for him to trouble their
Lordships further than by stating it. The rules of^ihe Court of Chan-
cery, and the rules of the civil law upon the subject, were there dis-
cussed by the late Mr. Justice Aston, and afterwards applied by the
Lord Chancellor.

As to the question whether successive appointments are cumulative
or substitutionary, see England v. Laverx, 3 L. R. Eq. 63.

Double gift of the same specific *thing.] — With regard to
the first case mentioned by Mr. Justice Aston, it is clear that L ^
where the same specific thing or corpus is given, either in the same,
instrument or in different instruments, in the nature of the thing, it
can but be a repetition ; where, for instance, there are two gifts of a
ruby ring, and there is no pretence that there are two ruby rings. See
Duke of St. Albans v. Beauclerk, 2 Atk. 638 ; Ridges v. Morrison, 1
Cro. C. C. 392 ; Suisse v. Lowther, 2 Hare, 432 ; Roxburgh v. Fuller,
13 W. R. (M. R.) 39.

Legacies of quantity given by different inMruments-l — It is equally
clear, as is laid down by Mr. Justice Aston, that where a testator, by
different testamentary instruments, has given legacies of quantity
simphciter to the same person, the Court considering that he who has
given more than once, must prim^ facie be intended to mean more than
one gift, awards to the legatee all the legacies ; and it is immaterial
whether any subsequent legacy is of the same amount ( Wallop v.
Eewett, 2 Ch. Rep. TO; Newport v. Kynaston, Rep. t Finch, 294;
Baillie v. Butterfield, 1 Cox, 392 ; Forbes v. Lawrence, 1 Coll. 495 ;
Badburn v. Jervis, 3 Beav. 450 ; Lee v. Fain, 4 Hare, 201, 216 ; Roch
V. Callen, 6 Hare, 531 ; Russell v. Dickson, 4 H. & L. 304), or less
(Pitt V. Pidgeon, 1 Ch. Ca. 301 ; Eurst v. Beach, 5 Madd. 358 ; Town-
shend v. Mostyn, 26 Beav. 72 ; Wilson v. O'Leary, 12 L. R. Eq. 525 ;

1 L. R. Ch. App. 448 ; Walsh v. WaUh, 4 I. R. Eq. 396), or, as in the
principal case, is larger than the first (Suisse v. Lowther, 2 Hare, 424 ;
Eertford v. Lowther, 1 Beav. lOY ; Lyon v. Colville, 1 Coll. 449 ;
Brennan v. Moran, 6 Ir. Ch. Rep. 126 ; Cresswell v. Cressivell, 6 L.
R. Eq. 69, 76; Wilson v. O'Leary, 12 L. R. Eq. 525; t L. R. Ch.
App. 448) ; a fortiori where there is any variation as to the mode or
times of payment, as, where the legacy given by a will, and that given
hy a codicil, are paj'able at diflTerent times, carry interest from different
dates, or are given over to different persons. (See Eodges v. Peacock,
3 Yes. 735 ; Mackensie v. Mackensie, 2 Russ. 262 ; Bartlett v. Gillard,

2 Russ. 149 ; Guy v. Sharp, 1 My. & K. 589 ; Wray v. Field, 6 Madd.
300 ; S. C, 2 Russ. 257 ; Watson v. Reid, 5 Sim. 431 ; Strong v. Lngram,
6 Sim. 197 ; Robley v. Robley, 2 Beav. 95 ; The Attorney-General v.
George, 8 Sim. 138 ; Lee v. Pain, 4 Hare, 201, 223.) Or are given

726 REPETITION OF LEGACIES.

upon or for different trusts and purposes : Sawrey v. Bumney, 5 De Gr.
& Sm. 698. So, where a legacy in one instrument is to the separate
use of a married woman, and in another a legacy is given to her not to
her separate use : Spii^e v. Smith, 1 Beav. 419. So where the gifts are
not *ejusdem generis, see Masters v. Masters, 1 P. Wms. 421,
L -J 423 ; in which case an annuity, though of greater value, was
held not to be a substitution for a legacy.

It will be observed, that, in the second codicil of Lady Isabella Finch
(as taken from Mr. Miller's note), a legacy was expressed to be given
to I^ydia Hooley, " over and besides " what the testatrix had left her
by her will ; it does not, however, appear that any conclusion was
drawn from those words, to the effect, that, as the testatrix, when she
wished to give anything in addition, knew how to express herself, that
therefore, when she did not so express herself on conferring a gift,
it ought to be taken as substitutional and not accumulative. Some
■weight, however, seems occasionally to have been given to such words :
Moggridge v. Thackwell, 1 Yes. Jun. 464 ; Barclay v. Wainwright, 3
Yes. 466 ; Mackensie v. Mackensie, 2 Russ. 273 ; Townshend v. Mostyn,
26 Beav. T2. And in Allen v. Callow, 3 Yes. 289, Lord Alvanley,
referring to the circumstance that one legacy was expressly given in
addition to another, said, " That is not an insignificant circumstance,
but it is not decisive, for the same thing was done in Hooley v. JSatton ;
but it does strengthen the argument of those who contend that one of
those dispositions was substituted for the other." In Russell v. Dickson,
2 D. & War. 133, with reference to this subject. Lord Chancellor Sugden
saj's, '• I assent to the argument, that if a testator expressly declares
one gift to be in addition to another (and for this purpose the Court is
entitled to look at other parts of the same instrument, or at gifts in
other testamentary instruments), and in anotlier instance makes a gift
without any such declaration, this is a circumstance to show that the
latter was intended not to be additional, but in substitution. But, still,
too much weight must not be attached to the variation. To hold that it
is conclusive, would be going too far. It is a circumstance, no doubt,
important to show, that where the testator meant addition, he knew
how to express his meaning ; and a party is entitled to relj- on it to
that extent." See S. G. affirmed Dom. Proc. 4 H. L. Cas. 293. And
in Lee v. Pain, 4 Hare, 201, 221, Sir J. Wigram, Y. C, after examining
all the authorities, and observing that the Lord Chancellor Sugden had
stated, with great accuracj^, all that could be said upon the subject,
adds : " Upon these authorities it is that I found the observation, that
it maj' well be doubted whether the words in question can safely be
relied upon, except in corroboration of an argument arising from
other circumstances, — whether the use of superfluous words in one
part of a will is alone sufficient to reduce the proper effect of words

HOOLET V. HATTON. 727

in *another part of the same instrument, — whether, in such a
case, the rule expressio eorum quse tacite insunt nihil operatur, L. J
ought not to be applied." But, in Lee v. Pain^ the argument founded
upon the words " in addition " was fairly met by the observation, that
in other cases, in the first codicil, some of the legacies given thereby
were expressed to be given in lieu of those given by the will : and the
answer to the question, why the testatrix did not, in the case of a par-
ticular legatee, as in other cases, say that her legacy was in addition
to that given by the will, was by way of retort, why did she not in that,
as in the case of other legacies given in the same codicil, say that
substitution was intended, if such were her intention ? See 4 Hare,
221, 233.

But although the legacies are in different instruments, if they are
not given simpliciter, but the motive of the gift is expressed, and in
such instruments the same motive is expressed, and the aavie sum is
given, the Court considers these two coincidences as raising a presump-
tion that the testator did not by a subsequent instrument mean another
gift, but ineant only a repetition of the former gift : Hurst v. Beach, 5
Madd. 358 ; Benyon v. Benyon, lY Ves. 34.

But the Court raises this presumption only where the double coinci-
dence occurs, of the same motive and the same sum in both instruments.
It will not raise it if in either instrument there be no motive, or a dif-
ferent or additional motive, expressed, although the sums be the same.
Thus, in Booh v. Gallen, 6 Hare, 531, where a testatrix bequeathed an
annuity to her " servant" E. H., and by a codicil three years afterwards,
bequeathed an annuity of the same amount to her "servant" E. H.,
Vice-Ohancellor Wigram, held the latter annuity to be cumulative, as
the word " servant" did not express the motive, but was only descrij)-
tive. So in Ridges v. Morrison, 1 Bro. C. C. 388, the testator bj' his
will gave several legacies, and among the rest, to Nicholas and Mary
Layton, the children of his nephew Isaac Layton, 500Z. each; and by
a codicil written under his will, he gave to T. Ashley, 20L; and "to
Nicholas Layton, that I put apprentice to a grocer, near Cripplegate,
500L ; " Lord Thurlow held, that Nicholas Layton was entitled to both
legacies. " Where," said his Lordship, " the same quantity is given,
with any additional cause assigned for it, or any implication to show
that the testator meant that the same thing, prima facie should ac-
cumulate, the Court has decided in favour of the accumulation. In the
present case it happens that an additional cause or mark of favour has
been mentioned in the codicil, which proves that the testator meant
and intended an accumulative legacy. Considering *the slight
inferences made in former cases (and which, I must own, have L J
tended to throw property into jeopardy and uncertainty), such an in-
ference as arises in this case is sufficient to turn it the other way, and
to induce the Court to say, that it operates as an accumulation. In

728 REPETITION OF LEGACIES.

the will, the legacy of 500Z. is given to Nicholas Layton (the testator
enumerating him among the other children of Isaac Laj'ton), upon the
general consideration of favour which the testator bore towards the
family ; the other legacy of 500Z. in the codicil is given with this ad-
ditional mode of description adjoined to it : ' To Nicholas Layton, the
child whom I have pnt out an apprentice ; ' which circumstance marks
the legatee as a peculiar object of favour, and, consequently^, such an
inference of the testator's intention as to induce the Court to say it is
an additional legacy." And see Mackinnon v. Peach, 2 Kee. 555. It
ought, however, to be mentioned, that Lord Tlmrlow, in Bidges v.
Morrison, though professing to adhere to the case of Hooley v. Hatton,
3^et says, that where the same quantity has been given, and no addi-
tional reason is assigned for a repetition of the gift, the Court has in-
ferred the testator's intention to be the same, and has rejected the ac-
cumulation: 1 Bro. C. C. 393; and see Moggridge v. Thackwell,!
Ves. Jun. 473, and the remarks of Sir W. Grant, in Benyon v. Benyon,
IT Ves. 42, upon what Lord Thurlow said in those cases, which has
probably been misreported ; for it has been clearly settled, as was laid
down in the principle case, that the mere fact of the gift of equal lega-
cies, by different instruments, will not indicate an intention against
accumulation. See also Lohley v. Stocks, 19 Beav. 392.

Nor will the presumption that repetition only, and not accumulation
was intended, arise, although the same motive be expressed in different
instruments, if the sums are different. Thus in Hurst v. Beach, 5
Madd. 352, the testatrix by her will, after giving several legacies, adds,
" I also give and bequeath to John Bach (meaning John Beach), now
living with me, the sum of 300L ; all which said legacies I direct and
desire may be paid immediately after my decease, and bear legal in-
terest from my death till paid." By a codicil, after giving several
legacies of 500Z. each, the testatrix adds, " To my man-servant John
Beach, a like legacy or sum of 500Z." The testatrix then gives a like
sum of 500L to her maid-servant ; and all these legacies she directed to
be paid at the end of six months after her decease. Sir J. Leach, M.
R., held that John Beach was entitled to both legacies. " The presump-
tion," said his Honour, " cannot be raised in this case, although it be

^ admitted that the motives are *the same, inasmuch as the sums
r*3551

■- -^ are different ; and upon the face of these instruments the de-
fendant is entitled to both sums." And see Lord v. Sutcliffe, 2 Sim.
213.

Where, in different testamentary instruments, the effect of the first
gift would depend in some measure on the events which should happen
amongst the legatees, repeated bequests have been construed as saibsti-
tutionary, from changes among the legatees, or alterations in their
position, which had occurred between the dates of the several instru-
ments. Thus, in Allen v. Callow, 3 Ves. 289, the testatrix, by will,

HOOLET V. HATTON. '729

dated in April, 1TY4, gave 5001. in trust for E. B. for life, with remain-
der to her children living at her death. E. B. died in July, 1'782,
leaving four children. In December, 1Y82, one child died. By a
codicil of May, 1Y85, the testatrix gave to the three surviving children,
by name, the sum of 500Z. in certain specified proportions, and directed
that the 500Z. should be vested in the name of one of the trustees in
the will. Lord Alvanley, after noticing that in one instance, where
the testatrix intended a second legacy to be additional, she had so
expressed herself in terms, drew his conclusion, that the 5001. given by
the codicil was a substitution for that given by the will, in consequence
of the altered state of the family. In Osborne v. The Duke of Leeds,
5 Ves. 369, the testator gave 10,000Z. to a son named, and 10,000Z. each
to after-born children. By a codicil, he afterwards gave 10,000Z. to a
child by name, born after the date of his will, and a few weeks before
the date of the codicil. Lord Alvanley, after adverting to the leaning
of the Court against double portions, relied upon the birth of the child
after the will as explanatory of the reason why the codicil was made.
With reference to these cases, it has been observed by Sir J. Wigram,
V. C, in Lee v. Pain, 4 Hare, 243, "that the disposition by the first
instrument was in a sense contingent, or at least dependent for its
results upon future events affecting the class of persons existing, or to
exist, in whose favour the gift was made ; and between the original and
the later instrument, circumstances occurred which enabled the testator
to provide with certainty for that which, at the time of making the
will, was necessarily contingent. The Court thought the inference
irresistilale, that a testamentary disposition, adapted only to the altered
circumstances of the case, must necessarily have been intended to
supercede the earlier bequest.''

Where a second instrument expressly refers to the first, although
the legacies given in each to the same person may be of different
amounts, it may appear, from intrinsic CA'idence, upon the true
*construction of the words in the second instrument, that the L -■
latter gift was intended to be substitutional : The Mayor of London v.
Russell, Rep. t. Finch, 290 ; Martin v. Drinkwater, 2 Beav. 215; Bris-
tow V. Bristow, 5 Beav. 289 ; Gurrie v. Pye, lY Ves. 462.

So, where a codicil furnishes intrinsic evidence that the testator is
thereby revising, explaining, and qualifying his will, legacies may be
construed to be substitutional : Moggridge v. Thackwell, 1 Yes. Jun.
464; 3 Bro. C. C. 51Y; Fraser v. Byng, 1 Russ. & My. 90.

Where a later instrument, as to the legacies, appears to be a mere
copy of the former, it will so far be held substitutional. Thus in Coote
V. Boyd, 2 Bro. C. C. 521, Belt's edit.. Sir Eyre Coote by his will had
disposed of several real estates, and of his personal estate. Afterwards
going to India, he made a codicil to his will, dated 9th October, 1180,
beginning with the words, " This is a codicil to the will," &c.; by this

'30 REPETITION OP LEGACIES..

iodicil he ratified .his will, and gave a legacy to his wife of 10,000L; he
jave several other legacies, and made his brother, the Dean of Kilfen-
)ra, residuary legatee. He afterwards went to a diffei'ent part of India,
md then made another codicil, in December, 1180, in nearly the same
vords with the former, and the residuary legatee the same : it contained
mly pne alteration, — a legacy to a Miss Monkton. It was insisted by
,he legatees, that these' were duplicated legacies. But Lord Thurlow
leld, that the last codicil alone should stand, it being evidently
ntended to be substituted for the first. " All the cases," said his Lord-
ship, " were gone through in argument, from the civil, the canon, and
3ur own law. I do not repeat them, because I refer entirely to the
irgument of Mr. Justice Aston, in Hooley v. Hatton, who went through
;he doctrine of them all with a particularity, method, and sufficiency,
seldom to be met with; and from that argument, I take it, was the
result, that when the same legacy is given in a will and a codicil, the
Court generally takes it as accumulative, but that the Court has not
sonsidered the presumption as very strong, but slight circumstances
liave been held to control it. Where it is evident the testator meant to
repeat the legacies, they are not duplicated. I think here the testator
meant to leave but one codicil, and only to add the legacy to Miss
Monkton. It would be extraordinary he should repeat exactly the
same legacies to persons standing in so different degrees of relationship
to him as the several legatees, and that the residuary clause should be
exactly the same in both." And see Barclay v. Wainwright, 3 Ves.
462; Attorney-General Y.*Narley,'L Madd. 263 ; Hemming \.
t*^^'^^ Gurrey, 2 S. & S. .^11 ; 1 Bligh N. S. 479; Gillespie v. Alex-
ander, 2 S. & S. 145; Campbell v. Lord Radnor, 1 Bro. C. C. 271;
Tuckey v. Henderson, 33 Beav. 174; Hinchcliffe v. Hinchcliffe, 2
Drew. & Sm. 96 ; Roxburgh v. Fuller, 13 W. R. (M. R.) 39. And see
Duke of St. Albans v. Beauclerk, 2 Atk. 636, some remarks in which
cannot be reconciled with the more modern authorities.

The principle, however, of these cases does not appear to be appli-
cable, where a sum is given by way of appointment by will, out of a
particular fund, and a sum of similar amount is bequeathed to the
same person by a codicil out of the general assets, for in such a case
the gifts will be cumulative: Truckey v. Henderson, 33 Beav. 174.

In the class of cases within which Goote v. Boyd falls, all the leg-
atees-mentioned in the will, except such as afterwards died, or such
servants as had quitted their service, were provided for in the codicil ;
it niight, therefore, be argued, that it may have been intended to sub-
stitute the codicil for that integral part of the will by which the leg-
acies are given. If, however, the codicil does not extend to all the
legacies in the will, and no explanation can be offered why some are
named in the codicil, and others omitted, the case will be different.
See Lee v. Pain, 4 Hare, 201, 246.

HOOLEY V. HATTON. 731

It is observed in a note to 1 Russ. & My. 102, that if different instru-
ments are exactly co-extensive in ttieir provisions, and in otlier re-
spects are so nearly identical as to satisfy the Judge that they could
never be intended to exist together, probate -will be granted only of
the latest in date, and the others will be held to be virtually revoked :
Methuen v. Methuen, 2 Phillim. 416. And parol evidence will be re-
sorted to, if necessary, to assist in determining the intention : Ibid.
But where testamentary papers, very similar in form, and embracing
the same general range of objects, still present such discrepancies that
' one cannot amount to more than a partial revocation or repetition of the
rest, the Prerogative Court allows all of them to be proved, and leaves
it to the Courts of equitj' to exercise their own judgment on the ques-
of addition or substitution, whenever those Courts are called upon to
construe their effect for the purpose of determining the rights of leg-
atees.

Legacies of quantity given by the same iiistrument.l — Where legacies
of quantity in the saine instrument, whether a will or a codicil, are
given to the same person simpliciter, and are of equal amount, one only
will be good, the repetition, according to the doctrine *of the
civil law, being considered, thougli strangely, in Mr. Justice '- -'
Aston's opinion, to arise from forgetfulness ; nor will small differences
in the way in which the gifts are conferred afford internal evidence
that the testator intended that they should be cumulative. Thus, in
Greenwood v. Greenwood, 1 Bro. C. C. 31, n. the testatrix gave " to
her niece Mary Cook, the wife of John Cook, 500Z.," and afterwards in
the same will, amongst many other legacies, " to her cousin Mary Cook
500Z. for her own use and disposal, notwithstanding her coverture."
Lord Apsley declared, that Mary Cook was entitled to one legacy only
of 500Z., and that the same was for her separate use. In Garth v.
Meyrick, 1 Bro. C. C. 30, the first bequest was, "I give to A. lOOOZ.
Old South Sea Annuities, to be transferred into her own name ; and
then, towards the close of the will, " I give to A.. lOOOZ. Old South Sea
Annuities as aforesaid ; " it was endeavoured to supjjort them as sep-
arate legacies, but A. was held only entitled to one. In Holford v.
Wood, 4 Ves. T6, the testator, after disposing of copyholds, leaseholds,
and giving a legacy, adds, " To Thomas Newman I give an annuity of
30Z. for his life paj'able quarterly at the usual quai'ter-days, the first
payment to be made on such of the same days as shall first happen
after my death ; " and after giving some specific and pecuniary legacies
and an annuity, the testator says, " I give to Thomas Newman, the
butler, 30Z. a year for his life." Lord Alvanley, M. R., held, that the sec-
ond annuity of 30L given to the defendant Thomas Newman, was not
to be considered as accumulative, but as the same annuity of 30Z. given
to him in the prior part of the will.

So, in Manning v. Thesiger, 3 My. & K. 29, the will of Mary Wels-

732

REPETITION OF LEGACIES,

ford, made in execution of apower, contained the following bequests : —
" I give to my brotlier, C. T., of London, from and immediately after
the decease of my husband R. W., and in default of issue of our mar-
riage, 1001. sterling; also to ray said brother C. T. an annuity of 50Z.
sterling for life, to commence from the day of the death of my husband
R. W., and such default of issue as aforesaid, and to be paid to him
half-j^early ; also to my brother C. T., of or near the city of London,
the sum of 100?. sterling." The testatrix concluded her will by direct-
ing, that all and every the legacies and sums of money given by her
will, wherein no time was specified as to the payment thereof, were to
be paid within three months after her husband's decease and such de-
fault of issue as aforesaid. There was no issue of the marriage. Lord
Cottenham, then Master of the Rolls, was of opinion that the testatrix
intended only to give a single legacy of *100Z.toC. T. And
L -^ see Brine v. Ferrier, T Sim. 549 ; Early v. Benbow, 2 Coll.
342 ; Early v. Middleton, 14 Beav. 453.

Where, however, the legacies given by the same instrument are of
unequal amount, and not merely, as might be inferred from Mr. Justice
Anson's remarks, where a larger sum is given after a less, they will be
considered accumulative. See Yockney v. Hansard, 3 Hare, 622. In
Curry v. Pile, 2 Bro. C. C. 225, the testator made his will as fol-
lows : — ■ " I give to her (E. C.'s) son J. C. lOOOZ., when he arrives at the
age of twenty-one years, the interest of which to be paid to his mother
till he arrives at the age of ten years ; and then I desire my executors
will take him and put him to a proper school for his education ; and
when he arrives at that age, I desire they will expend out of my estate
lOOL a year till he arrives at the age of twent^^-one years, and then I
give him 5000L" The question was, whether John Curry should take
both legacies or only one ; and Mr. Madocks, for J. C, cited the
fourth case put in Mr. Justice Aston's judgment in Hooley v. Hatton :
As to a larger sum after a less, where they are in the same instrument,
the two sums are not blended, but the legatee has two legacies ; and the
heir must show that the one was meant to be blended with the other, the
presumption being in favour of what is written." But Lord Thui'low
held, that J. C. was "entitled to both legacies. See also Windham v.
Windham, Rep. t. Finch, 267; Baylee v. Quinn, 2 D. & War. 116;
Adnam v. Cole, 6 Beav. 353. And see Hartly v. Ostler, 22 Beav. 449 ;
Brennan v. Moran, 6 Ir. Ch. Rep. 126.

Internal evidence of intention.'] — The intention of the testator, when
it can be collected from the instrument containing two legacies, will, of
course, override any presumption which might be raised in the absence
of such intention : Yockney v. Hansard, 3 Hare, 620. And although
legacies given by different instruments are equal, if they were intended
by the testator to be cumulative {Lobley v. Stocks, 19 Beav. 392,) or if
though differing in amount the latter was intended to be substitutional

HOOLET V. EATTON. 733

(Russell V. Dickson, 4 H. L. C. 293 ; 4 Ir. Eq. Rep. 339,) tbe intention
will be carried into effect.

It may here be observed, that if a testamentary paper, incomplete of
itself (but being made before the 1st of Januarj', 1838, and admitted to
probate,) contains internal evidence of an intention to make an entirely
new disposition, and for that purpose to undo all that had been done
by a previous complete will, effect will be given to the new disposition,
as far as it goes, in substitution for the former ; but the former
one *will be treated as operative so far as no substituted
disposition is provided in its place : Kidd v. North, 14 Sim. 463 ; L J
S. C, 2 Ph. 91 ; Jackson v. Jackson, 2 Cox, 35. But as far as the
question depends upon the latter instrument being incomplete, it can-
not arise upon any instrument made after the 1st of January, 1838.

If probate be granted in the Ecclesiastical Court to two writings, as
a will and codicil, it will be conclusive to show that they must be con-
sidered as distinct instruments, although they are both written on the
same paper : Baillie v, Butterfield, 1 Cox, 392 ; Campbell v. Lord
Radnor, 1 Bro. C. C. 212; M''alsh v. Gladstone, 1 Ph. 294; but see
Martin v. Drinkwater, 2 Beav. 215. So, if two instruments have been
admitted to probate as one testament, they must for all purposes be
considered as one instrument only : Heming v. Glutterhuck, 1 Bligh,
N. S. 491, 492; Brine v. Ferrier, 1 Sim. 549. In The Duke of' St.
Albans v. Beauclerk, 2 Atk. 636, were a testatrix, at the commence-
ment of her codicils, declared that they should be part of her will, Lord
Hardwicke held, that they were to receive the same construction as if
they were incorporated in the will, and formed only one instrument.
See Brennan v. Moran, 6 Ir. Ch. Rep. 126.

With regard to the present tendency of the decisions upon the doc-
trine of tlie repetition of legacies, it has been said, that " there is al-
ways a difficulty pressing upon the mind of the Judge in determining
what the real meaning of the testator is, within the rule of law, and how
far he can, consistently witli settled principles, effectuate the intention.
In later times, there certainly has been a disposition to get rid of this
diflBculty, and to hold legacies to be cumulative. The inclination of
the Court has been rather to cut the knot tiian untie it." Per Lord
Chancellor Sugden, in Russell v. Dickson, 2 D. & War. IST ; and see
Lee V. Pain, 4 Hare, 218, 236.

Where a legacy is given bj'' a codicil in substitution for a legacy
given by a previous instrument, upon a revocation of the last legacy,
the former will not be set up again. Boulcott v. Boulcott, 2 Drew. 25.

As to the admission of extrinsic evidence.'] — Sir John Leach, M. R.,
in Hurst v. Beach, 5 Madd. 351, where a legacy of 300Z. was given by
the will, and a legacy of 500Z. by the codicil, has very fully considered
the question, how far parol evidence is admissible to prove whether a
testator intended a legacy to be a substitutional or accumulative.

73 1 REPETITION OP LEGACIES.

"Upon the question," said his Honor, '' whether evidence is admissi-
ble to prove that the testatrix did not mean that the defendant should
take both sums, *there are no decisions in Courts of equity.
L -I There are obiter dicta for the admission of sucli testimony ; but,
in Osborne v. The Duke of Leeds (5 Ves. 369,) the point was fully
argued, and Lord Alvanley appears to have inclined against receiving
it. It did not, however, become necessary there, to decide the question.
It is to be collected from the Digest, that it was admitted by the civil
law.

" This Court has no original jurisdiction in testamentary matters ; it
acts with respect to them only upon the ground of administering a
trust, and is bound to adopt, in questions of legacy, the principles and
rules of the Ecclesiastical Court. I found it necessary, therefore, to
direct inquiry to be made in that Court upon this point, and the answer
that I have received is, that no decision has taken place there upon this
question, and that no settled opinion is formed upon it.

" It remains then to be considered upon the principles of evidence
which are received in our own law. Our primary principle is, that evi-
dence is not admissible to contradict a written instrument. In some
cases Courts of equity raise a presumption against the apparent inten-
tion of a testamentary instrument. And there they will receive evi-
dence to repel that presumption ; for the effect of such testimony is not
to show that the testator did not mean wliat he has said, but on the
contrary, to prove that he did mean what he has expressed.

" Thus, where the Court raises the presumption against the intention
of a double gift, by reason that the sums and the motive are the same
in both instruments, it will receive evidence that the testator actually
intended the double gift he has expressed. In like manner, evidence is
received to repel tiie presumption raised against an executor's title to
the residue, from the circumstance of a legacy given to him, and to re-
pel the presumption that a portion is satisiied by a legacy.

" In all these cases the evidence is received in support of the appa-
rent effect of the instrument, and not against it.

" Here the evidence tendered is not in support of the apparent efiect
of the instrument, but directly against it. This codicil leaves unre-
voked the former legacy of 300L to the defendant, and makes to him a
further substantive gift of 500L The evidence tendered is, that the
testatrix did not mean this as a further gift of 500L, but meant to sub-
stitute the 500L in the place of the former 300Z.

" I am of opinion, therefore, that such evidence cannot be received

without breaking in upon the primary rule, that parol evidence is not

admissible against the expressed effect of a written instrument." See

also Guy v. Sharp, 1 My. & K. 589, and Hall v. Hill, 1 D. & War. 94, 116.

*The same view is taken by the Vice-Chancellor Wieram, in
r*3621
L -^ the important case of Lee v. Pain, 4 Hare, 216. " If," said his

HOOLET V. HATTON. 735

Honor, " each of the instruments simply gives a legacy to the same
individual, it would manifestly contradict the effect of one or other in-
strument, if the legatee were not allowed to claim both legacies, and
accordingly he would in that simple case be entitled to both ; and, as
the right to both legacies in such cases is found in the construction and
effect of the instruments, no extrinsic evidence is admissible to prove
that the legatee was intended to take one legacy only. In support of
this, it will be sufHcient to refer to the cases of Hurst v. Beach (5 Madd.
351) and Hall v. Hill, 1 D. & War. 94). I have noticed this point, be-
cause it was argued that the rule, which, in the simple case of two
legacies given by two different instruments, awards both to the legatee,
was a mere legal presumption, and, it was said, a presumption lightly
considered. That is not a correct view of the case. If the right of the
legatee in such cases to both legacies depended upon a legal presump-
tion only, evidence would be admissible to rebut it ; which, according
to the cases I have referred to, is not permitted. To admit such evi-
dence in such a case, would be to construe a writing by parol evidence.
I do not deny that cases may be found in which the riglit of the lega-
tee in such cases to both legacies is spoken of as depending upon pre-
sumption ; but I believe it will be found that the word ' presumption'
has in some at least of such cases been used not in a very strict and
accurate sense, not as meaning an inference raised by Courts of law,
independently of or against the words of an instrument, but that the
word has been used to denote an inference in favour of a given con-
struction of particular words. Thus, for instance, in Goote v. Boyd
(2 Bro. C. C. 527), Lord Thurlow says, when the presumption arises
from the construction of words simply qua words, no evidence can be
admitted as to the consequence of giving effect to this rule of law."

We may conclude, from these authorities, that where the Court itself
raises tlie presumption against double legacies, — where, for instance,
two legacies of equal amount are given by one instrument, — parol evi-
dence is admissible to show that the testator intended the legatee to
take both, for that is in support of the apparent intention of the will ;
but where the Court does not raise the presumption, — where, for in-
stance, legacies of equal amount are given simpliciter by different in-
struments,— parol evidence is not admissible to show that the testa-
tor intended the legatee to take one onlj-, for that is in opposition to
the will. See Hall v. Hill, 1 D. & War. 116. ,

*Extrinsic evitlence is admissible to show the circumstances
of the testator at the time of making his will, so as to enable L -'
the Court to place itself in the position of the testator : Martin v.
Brinkwaler, 2 Beav. 215 ; Guy v. Sharp, 1 My. & K. 589.

How far a substitutional or additional Legacy is liable to the Inci-
dents or Conditions of the original Legacy.] — As a general rule, where
one legacy is given merely in substitution for another, it will, in the

736 REPETITION OF LEGACIES.

absence of any expression of a contrary intention on the part of the
testator, be liable to the same incidents as the legacy for which it is
substituted {Cooper v. Day, 3 Mer. 154 ; Shaftesbury v. Marlborough,
T Sim. 23'7 ; Briatow v. Bristow, b Beav. 289 ; Cookson v. Hancock,
1 Keen, 811, 2 My. & Or. 606 ; Johnstone v. Lord Harrowby, 1 De
G. F. & Jo. 183, reversing S- C, 1 Johns. 425 ; Duffield v. Gurrie,
29 Beav. 284) ; but that will not be the result where the second legacy
is a distinct an4 substantive bequest : Chatteris v. Young, 2 Russ. 188 ;
also Leacroft v. Maynard, 3 Bro. C. C. 233 ; 1 Ves. Jun. 2Y9 ; Crowder
V. Clowes, 2 Ves. Jun. 449, 450 ; Alexander v. Alexander, 5 Beav. 518 ;
Haley v. Bannister, 23 Beav. 336 ; King v. Tootel, 25 Beav. 23.

An additional legacy, although not so expressed, will in general be
held subject to the same incidents and conditions as the first legacj-.
Thus, if after a legacy given bj' will to a married woman to her separate
use, an additional legacy is given to her by a codicil, she will take it to
her separate use. Day v. Croft, 4 Beav. 561 ; and see Warwick v.
Hawkins, 5 De G. & Sm. 481.

In no case, however, has it been held, that the latter gift is to go to
the parties entitled under the subsequent limitations of the former gift.
"I quite concur," observes Sir W. Page Wood, V. C, in what was said
by the Lord Justice Turner in the case of More's Trust (10 Hare, 111),
that where there is a gift by will to A. for life, and after his decease to
B., and then another gift to A., in addition to what was before given,
there is no authority for carrying on the series of limitations to the
latter gift, so as to convert it into a gift to A. for life, and then to the
party who was named in the former gift to take after A.'s death. It
would be more plausible to say, that a life interest onlj' was given to
A. in the second case, but that would be inconsistent with the words
of the will." Mann v. Fuller, Kay, 624, 626.

The cases, however, have not gone -further than this, where the first
gift is given absolutely to the party, or is made defeasible ; the second
gift has been held to be given upon similar terms ; for example, if the
former gift were ^absolute and free of legacj- duty, the addi-
L -J tional gift has been held to have all the same incidents ; so, if
the former gift is to be lost on a certain event, the additional gift is to
be defeated on the same condition. Per Sir W. Page Wood, V. C, 1
Kay, 626. See also Overend v. Ourney, 1 Sim. 128.

In Dewitt v. Fates, 10 Johnson, ing. By a subsequent clause of

156, the testator bequeathed two the same will, he devised one-half

hundred and fifty pounds to the of a farm to his son-in-law, Philip

children of his daughter Maria, Vanderbergh, and directed the de-

payable in sums of fifty pounds to visee, in consideration of the de-

each, on coming of age, or marry- vise, to pay the children of his

HOOLBT V. HATTON.

73(

daughter Maria, two hundred and
fifty pounds, with a similiar pro-
vision as to the time of payment,
but with the ommission of a pro-
vision contained in the first be-
quest, that the shares of those
who died without issue should go
to the survivors. The court held
that the second legacj^ was a mere
repetition of the first, und that pay-
ment by the devisee, was a defence
to a suit against the executors.
" This," said Kent, C. J., " is the
case of a sum of money given
twice in the same instrument to
the same legatee. The general
rule on this subject, from a review
of the numerous cases, appears
evidently to be, that where the sum
is repeated, in the same writing,
the legatee can take only one of
the sums bequeathed. The latter
sum is held to be a substitution,
and they are not taken cumula-
tively, unless there be some evident
intention that they should be so
considered, and it lays with the
legatee to show that intention, and
rebut the contrary presumption.
But where the two bequests are in
different instruments, as by will
in the one case, and by a codicil in
the other, the presumption is in
favor of the legatee, and the bur-
den of contesting that presumption
is east upon the executor. The
presumption either way, whether
against the cumulation, because
the legacy is repeated in the same
instrument, or whether in favor of
it, because the legacy is by differ-
ent instruments, is liable to be con-
trolled and repelled by internal
' evidence, and the circumstances of
the case (Godolphin's Orphan
VOL. II 47

Legacy, part 3, c. 26, s. 46 ; Swinb.
part 7, c. 21, s. 13; Duke of St.
Albans v. Beaulcerk, 2 Atk. 636 ;
Garth v. Meyrick, 1 Bro. 30 ; Bid-
ges V. Morrison, Jb. 389 ; Hooley
v. Hatton, lb. 390, n. ; Wallop v.
Hewitt, 2 Ch. Rep. 37 ; Newport
V. Kinaston, lb. 58 ; James v.
Semmes, 2 H. Bl. 214 ; Allen v.
Gallen, 3 Vesey, Jun. 289 ; Barclay
V. Wainwright, lb. 462 ; Osborne
V. Duke of Leeds, 5 Vesey, 369).
This question which appears to
have arisen so often, and to have
been so learnedly and ably dis-
cussed, in the English courts, was
equally familiar to the civil law.
The same rule existed there, and
subject to the same control. (Dig.
30, 1. 34, Dig, 22, 3, 12, and the
notes of Gothofrede, lb. Voet,
Com. ad Band. tom. 2,408, s. 34.)
And Chancellor D'Aguesseau, in
his Bleadings in the case of the
Heirs of Vaugermain (CEuvres,
tom. 2, 21), adopts and applies the
same rule to a case arising under
the French law. The civil law puts
the case altogether upon the point
of the testator's intention ; but
then if the legacy was repeated in
the same instrument, it required
the highest and strongest proof to
accumulate it. Evidentissimis pro-
bationibus ostendatur teslatorem
multiplicasse legatum voluisse.

" In the present case, what are
the intrinsic circumstances to show
a manifest intent of the testator to
multiply the legacy ? The only
material variation in the two be-
quests is, that in the latter instance,
the legacy was charged upon
Bhilip Vanderberg, in respect of
the real estate to him devised. But

738

REPETITION OF LEGACIES.

this affords no evidence of an in-
tention to accumulate. The infer-
ence is the other way. It was only-
strengthening the security of the
legacy by means of the charge.
There was no specified object ;
there was no assigned reason, or
cause, as respected the legatees, tov
repeating the bequest. Courts
have required some new or addi-
tional cause, for enlarging the
bounty, before tliey have held it
accumulative, unless the words of
the will clearly show the intent.
In a will, the testator gave double
legacies to his daughters, but he
added, in those cases, that they
were ' in addition ' to what he had
before given ; and the master of
rolls, in Barclay v. Wainn'right,
said that he laid considerable stress
upon this, that where the testator
meant addition, he expressed it.
The whole will denotes through-
out, a careful and studied appor-
tionment of the testator's estate
among his children, according to
his opinion of their wants and cir-
cumstances ; and he imposed sev-
eral trusts and charges, probably
with a view to greater accuracy in
the partition of his estate. He ap-
points four sons executors, but he
charges his funeral expenses upon
three, and his debts upon two of
them. A small variation in the
direction as to payment will not
alter the construction. In Halford
T. Wood (4 Ves. Y6), the legacy
was an annuity of thirty pounds
for life, and in the one instance it
was declared to be payable quar-
terly, and in the other instance,
the will was silent as to the pay-
ment, and yet it was not held ac-

cumulative. So also in Greenwood
V. Greenwood (1 Bro. 31, n.), the
one legacy was simjily to Mary
Cook, ' for her own use and dispos-
ing, notwithstanding her cover-
ture ; ' and yet Lord Bathurst
decreed that she was entitled to
one legacy only.

" As, then, the substituted leg-
acy, in this case, has been paid by
the devisee, on whom it was
charged, the defendant is entitled
to judgment."

The point arose in Jones v.
Creveling Ex^ors, 4 Harrison,
127 ; 1 Zabriskie, 573, where the
will was as follows : " I do give
and bequeath unto my two grand-
daughters, Christina Jones and
Deborah Jones, each four hundred
dollars, to be paid to them by my
executors. If they are not of age
at my decease, I order mj- execu-
tors to pay each of them yearly,
and every year, the interest of
four hundred dollars, until they
arrive of age. I further order my
executors to pay out of my estate
to Christina Jones, four hundred
dollars, one 3'ear after my decease ;
and to pay Deborah Jones, four
hundred dollars, two years after
my decease, in full of their lega-
cies bequeathed to them." The
legacies were held to be cumula-
tive by a divided court ; but the
judgment was reversed by the
court of appeals, on the ground
that when legacies of the same
kind and to the same person,
meet in the same instrument, the
presumption is that one is a mere
repetition of the other, unless it
appears expressly, or by a neces-
sary inference that the testator's

HOOLET V. HATTON.

739

intention was that both should
take effect.

The following reasons were as-
signed for the reversal.

" Upon a question, whether two
legacies shall be construed to be
cumulative or not, a fair and for-
cible argument in support of the
increase may be drawn, from the
fact that they afe for different
sums ; or the sums are stated in
different sections of the will ; or
one in the will and another in a
codicil ; or the sums are made
payable at different times, or out
of different funds. But these
matters must appear on the face
of the will itself, or will and
codicil, as the act of the testator
himself, and not by a mere impli-
cation of law or construction, for
this would be settling the inten-
tion of the testator in a doubtful
clause, by other doubtful clauses.
These legacies are for the same
sums, given in the same section
which also provides for their pay-
ment. And the addition of the
words, " out of my estate," in the
third clause, can have little weight,
for all the legacies are charged on
his estate. Whether the grand-
daughters were to have a legacy
of $400 each, or two legacies of
$400 each, all agree is a question
of intention ; and occupying, as
the entire bequest does, but ten
consecutive lines, the testator must
be presumed to have understood
wliat that intention was, and
whether he was carrying it out.
No inference of forgetfulness or
confusion can arise, as there might,
if the sums were in different parts
of the will, or will and codicil, or

involved with other bequests or
devises. If the intention of the
testator then was to give $800 to
each of his granddaughters, that
intention must have existed either
when he commenced drafting or
dictating the 8th section, or been
an after-thought — if the former, he
would have said at once, I give to
my two granddaughters each $800,
and would never have attempted in-
directly, obscurely, and by halves,
to express a settled, direct, plain
and entire determination. If, on
the other hand, it was an after-
thought, and the testator con-
cluded to give a further sum of
$400 to each of his granddaugh-
ters, knowing, as he must, what
he had just done, and what he had
then concluded further to do, he
would have expressed himself ex-
plicitly, and so clearly as to have
left no doubt that his last intention
would have been understood and
carried into effect ; he would have
used some word or phrase, directly
indicating that the last $400 was
an addition to the first $400, or at
least to show that it was not the
same ; he would have begun the
clause with directing his executors
to make an additional or further
payment, or the payment of a
further sum, not with a mere
" further order " to pa}', and he
would not have concluded it with
the sentence, " in full of the lega-
cies bequeathed to them."

But for the wording of the sec-
ond bequest we might incline to
the opinion of the court below.
There is no rule of law which for-
bids, or even discountenances, the
gift of two sums of a like kind, to

740

REPETITION OF LEGACIES

the same person, and by the same
■will. The presumption against
accumulation, is designed to guard
against the errors that may arise
from misapprehension or forget-
fulness, in an instrument which is
not unfrequently executed w ex-
tremis^ sometimes by one inops
consilii, at others without having
been carefully read or examined.
It does not therefore apjsly where
there is no sufficient reason for
imputing mistake or oversight.
It is certainly easier and more
natural to say I leave J. S. the
sum of $200, than to say I leave
J. S. $100, and also the further
sum of $100, but this is matter
for argument rather than conclu-
sive. If that which might be made
the subject of a single gift, is de-
liberately bestowed as two, the
courts will carr}^ both donations
into effect. Had the testator, in
Jones V. Greveling, bequeathed
$800, one-half at the expiration of
two years from his death and the
residue with interest when the
legatee came of age, his design
could not have been pronounced
repugnant or contradictory. What
he might have expressed in the
same breath, he might express in
two distinct clauses or sentences,
by bequeathing $400 payable at
one period, and $400 to be paid
at another. If the second bequest
had been worded as a gift, this
argument would probably have
prevailed. What the testator did,
was to direct that $400 should be
paid to Christina Jones one year
after his decease, and a like sum
to Deborah Jones at the end of
two years, " in full of their lega-

cies bequeathed to them ;" and it
was therefore reasonable to infer,
that his purpose was not to make
an additional gift, but to sub-
stitute a different time of pay-
ment, for that which he had origi-
nally prescribed.

In Edwards v. Eainier^s Ex'ors,
17 Ohio, N. S. 597, the testator
devised real estate to some of his
children, and gave pecuniarj- lega-
cies to others. The third item of
his will was a bequest to his
daughter Sarah Edwards, " of all
the notes which he held against
her husband," and also fifteen
hundred dollars in cash. The fifth
clause of the will contained a devise
to his daughter Hestor Adel, of a
tract of land subject to the pay-
ment of one thousand dollars " to
my said daughter Sarah Edwards,
in sums of one hundred dollars per
year." Bj' the last clause of Ms
will, " all the above legacies were
to be paid in two years after his
decease." The court in delivering
judgment recognized the general
rule, that "where the sum is re-
peated in the same writing, the pre-
sumption is against the legatee,"
and " in his favor, where the two
bequests are in different instru-
ments ;" but held, that the case
did not admit of its application,
because the legacies were not
payable at the same time or by
the same person. One was a
general pecuniary bequest, which
it was incumbent on the executors
to satisfy, the other a burden im-
posed on Mrs. Adel, in considera-
tion of the land devised to her,
and with which the executors were
not concerned. It followed that

EX PAKTE PYE.

741

the presumptiorL against the inten-
tion to multiply or accumulate the
bequests, did not arise, or was
repelled.

It was held in like manner in
Cunningham, v. Spickler, 4 Gill,
280, in accordance with the doc-
trine of the principal case, that
legacies differing materially as
to time, mode of payment and
amount, are to be regarded as
cumulative and not substitutional,
although given by different clauses
of the same instrument.

Where the testator makes an
unqualified bequest, and after-
wards bequeathes the same thing
conditionally, both clauses will
be read as one, and the quali-

fication of the second will attach
to and control the first ; lEnor
V. Ferris, 22 Conn. 371. The
court said that the intention
finally expressed in a will must
prevail; and hence if a bequest
which has been made absolutelj',
is reiterated with a condition, the
presumption is that the testator
has changed his mind and means
to limit or qualify the gift. The
bequest in this instance was of all
the testator's personal estate ; and
where an absolute pecuniary be-
quest is followed by a conditional
gift of a like kind, the latter will
be presumed to be accumulative
and not a repetition of what has
been already given.

*PyE, Ex parte. [*365]

DUPOST, Ux parte.

APRIL 26, 39, MAY 37, JUNE 13, 2?, 1811.

EEPOHTED 18 VES. 140.

Satisfaction of a legacy by a Portion. — Ademption-.] — As a
general rale, where a parent gives a legacy to a child, not stating
the purpose with reference to which he gives it, he is understood to
give a portion ; and, in consequence of the leaning against double
portions, if the parent afterwards advances a portion on the mar-
riage of the child, the presumption arises that it was intended to be
a satisfaction of the legacy, eithi'.r wholly or in part ; and the rule
is applicable where a person puts himself in loco parentis.

No such presumption arises in the case of a stranger, or of a natural
child, where the donor has not put himself in loco parentis, if the
subsequent advance is not proved to he for the very purpose of satis-
fying the legacy ; and, therefore, the legatee will be entitled to both.

William Mowbray, by his will, dated the 10th' of April,
1806, giving his wife the residue of his property after payment
of his debts, except the sum after-mentioned, among other lega-
cies gave as ioWowk:—-'- 1 give and bequeath the sum of 4000^.
sterling to Louisa Hortensia Garos, daurfhiter o/ John Jjouis Garos,

742 SATISFACTION. — ADEMPTION.

formerly of Berwick-street, Westminster ; the like sum of 4000^.
to Emily Garos, her sister, and 4000^. to Julia Garos, her other
sister; and in case of the death of one of the three, I desire that
the legacy may be divided equally betwixt the two surviving
sisters ; and in case of the death of two of them, I desire the
whole 12,000^. may be paid to the surviving sister."
r*^fifil *The testator also gave to John Louis Garos 600^., and
L -■ "to Marie Genevieve Garos, his wife, the sum of 2500^.
sterling, for her own use, and over which her husband is not to
have any power, he having lived abroad for many years, and she
in this country, and no correspondence having passed between
them during that time. Her own receipt shall be a sufficient
authority to my executors for paying her the above legacy."

The testator died on the 8th of June, 1809. His widow became
a lunatic. The petitioner Pye was the committee under the
commission, and upon her death took out administration to her,
and administration de bonis non to the testator.

The Master's report stated, from the examination of the peti-
tioner Pye, that Louisa Hortensia, Emily, and Julia Garos, were
the three natural daughters of the testator by Marie Genevieve
Garos, the wife of John Louis Garos; and that, since the date of
the will, Louisa Hortensia Garos married Christopher Dubost ;
and the testator advanced as a marriage portion for her, which by
the settlement appeared to have been received by Christopher
Dubost, the sum of 3000/. ,• and it being contended, that the said
sum of 3000?. ought to be considered as an advancement and in part
satisfaction of the legacy of 4000?. and the whole legacy being
claimed on the part of Christopher Dubost and his wife (who
were both represented to be residing abroad), the Master did not
allow the claim. '

As to the legacy of 2500/ to Marie Genevieve Garos, the report
stated, from the same examination, that since the date and execu-
tion of the will the testator caused an annuity to be purchased in
France, to which country she had retired for her life, and laid
out in such purchase 1500/.; and, it being contended by the peti-
tioner Pye, that the said sum of 1500/. ought to be deducted from
the legacy of 2500/. as Ijeing an advancement and in part satisfac-
tion, and the whole legacy being claimed by the legatee, then
resident abroad, the Master had not allowed such claim, but left
it open to the party to prosecute, when in a situation to do so.
r*3671 *^? ^ further report the Master found, as to the French
'- -' annuity, that, by a letter written by the testator to Chris-
topher Dubost in Paris, on the 25th of November, 1807, the tes-
tator authorized him to purchase in France an annuity of 100?.,
for the benefit of the said Marie Genevieve Garos for her life, and
to draw on. him for 1500/. on account of such purchase. And
under that authority Dubost purchased an annuity of that value;
but that, as she was married at the time, and also deranged, the
annuity was purchased in the name of the testator; and the tes-
tator sent to Dubost, by his desire, a power of attorney author-

EX PARTE PTE. 743

ising him to transfer to Marie Genevieve Garos the said annuity,
dated the 10th of June, 1808.

The report further found, upon the affidavit of Dubost and the
copy of the deed, that the first intimation he received of the death
of the testator, who died in June, 1809, was in November, 1809 ;
and that, in ignorance of such death, Dubost, on the 21st of Oc-
tober, 1809, exercised the power vested in him, by executing to
Marie Genevieve Garos (her late husband being then dead, and
she of sound mind) a deed of gift of the said annuity; and the
Master found, that by the law of France,' if an attorney be igno-
rant of the death of the party who has given the power of at-
torney, whatever he has done, while ignorant of such death, is
valid. The Master therefore stated his opinion, that the annuity
was no part of the personal estate of William Mowbray.

The first petition prayed, that so much of the report as certifies
the French annuity to be no part of the testator's personal estate
may be set aside ; and that it may be declared, that the said an-
nuity is part of his personal estate.

The other petition, by Dubost and his wife, prayed a transfer
of Three per Cent. Bank Annuities in satisfaction of 1000^. of the
legacy; and that so much of the Bank Annuities as will be suf-
ficient to raise 3177^. Hs. Qd., the residue of the said legacy and
interest, may be sold, &c.

An affidavit was oflPered by Dubost, that upon the *treaty r»opo-i
of marriage, the testator assured him, that, independent of '- ^
the 3000^., he had already bequethed her 4000^, and Dubost might
depend upon his not altering it. A letter was also produced to the
testator from Dubo,st, previous to the marriage, that he would
not believe the information he had received, that the testator,
being asked whether he would remember the young ladies in his
will, answered, " You cannot expect that; " that he had said to
Mrs. Dubost, that he did not see why there should be a difference
between the sisters ; and asking if, according to the custom in
France, he would give, besides the portion, 100^. to be laid out
in jewels, &c. This letter was found after the testator's death
among his papers.

Sir Arthur Piggott^Mv. Richards, Mr. Wingfield,M.v. Homeland.
Mr. Wear, for different parties, in support of the first petition.

The French annuity being purchased in the testator's name,
and no third person interposed as a trustee, the interest could not
be transferred from him without certain acts, which were not
done at the time of his death. It was therefore competent to him
during his life to change his purpose, and to make some other
provision for this lady by funds in this country, conceiving, per-
haps, that she might return here. The authority given to pur-

' By the Code Napoleon, Art. 2003, " Le mandat finit par la mort naturelle
. . . soit dumandant, soit du mandataire." But an exception is introduced
in the following article, Art. 3008, "Si le mandataire ignore la mort duman-
dant, . . . ce qu'il a fait dans cette ignorance est valide."

744 SATISFACTION. — ADEMPTION.

chase this annuity could not have been enforced against him
during his life by a person claiming as a volunteer ; nor 6an it be
established against his estate after his death, the act which would
have given the benefit of it against the personal representative
not having been completed. Where a question is to be decided
by a foreign law, the first step is an inquiry by the Master to
ascertain what is the law of that country.

"With regard to the other petition, and the objection to the
letter ofiiered as evidence, the circumstances resemble those of
Shudal v. Jekyll^ before Lord Hardwicke, Powell v. Cleaver^ be-
fore Lord Thurlow, and Trimmer v. Bayne? before your Lord-
r4{.q/?Q-| ship ; and the conclusion is *that the evidence is admissible.
'- -^ Lord Hardwicke's opinion was, that this rule, as to satis-
faction, is not confined to the case of a parent. It is true it does
not apply to a mere stranger, standing in no relation, natural or
civil, either as a legitimate, adopted, or natural child ; but it
applies to any person standing in loco parentis equally as to the
parent. The presumption was repelled in Shudal v. Jekyll by
the evidence, which was held to be admissible, and proved that
the testator had no intention of limiting his bounty to the por-
tion be had given on the plaintifl"'s marriage ; declaring that he
would leave her something by his will, but would not be put
under any obligation to do it ; the evidence therefore contradict-
ing the supposed intention to substitute the portion for the legacy.

The case of Powell v. Cleaver* certainly had strong circum-
stances, admitting argument; and Lord Thurlow, finding the
legatee a mere stranger to the testator, who, though undoubtedly
he provided a portion for her on marriage, stood in no relation
to her, and could not be considered as having taken upon him the
character of parent, determined against her claim of a double pro-
vision.

Trimmer v. Payne^ was the case of a provision for a natural
daughter, which has been considered as a solid distinction ; and
your Lordship decided that case with great attention, and upon
a full review of the authorities. Upon the evidence, it is impos-
sible to deny the intention to make a provision -at least for an
adopted child, whom the testator had educated ; and that there
was an ulterior purpose in his mind. This is the same species of
case as Shudal v. Jekyll f in which the provision by the will, ac-
companied with the declared intention of the testator to do some-
thing more for his niece, justified Lord Hardwicke's decision ;
and the same principle that governed that case and Trimmer v.
Payne, though with a difterent effect, must be applied to this :
the case of a person, treated by the testator as a child, adopted
and educated by him, standing upon the evidence of this letter in
loco parentis and filise, having, from the infancy in these

1 2 Atk. 516. 2 2 Bro. C. C. 490. a 7 Ves. 508.

* 2 Bro. C. C. 499. = 7 Ves. 508. e 2 Atk. 516.

EX PARTE PTE. 745

*children, acted as their parent, and therefore as much r*oi7Q-i
•within the rule as the actual relation of parent and child ; ^ J
and the circumstance, that the legacy is given over upon the con-
tingency from one child to another, cannot prevent its application.
The letter of Dubost, which is clearly evidence, is decisive. It is
the letter of a person treating upon the subject of his proposed
marriage with the testator, as her parent, and also as having made
a provision for her by his will. The circumstance, that this let-
ter, which came out of the testator's papers after his death, had
been kept by him, the settlement following immediately upon it,
is remarkable. The Master's report, therefore, is right ; and the
second petition must be dismissed. *

Sir Samuel Romilly and Mr. Bell, in support of the second
petition (referring, in opposition to the other petition, to the
present law of France, declaring, that if the mandatory is unac-
quainted with the death of the mandant, or any other cause,
which put an end to the mandate, whatever he has done while he
was so unacquainted, is valid).

It cannot be disputed, that the advance of a portion by a parent
on the marriage of his child, is a satisfaction of a legacj', either
the whole or part ; and that, if the testator, though not the nat-
ural or legitimate father, has placed himself in loco parentis,- the
same conseqence will follow. The difference consists in the appli-
cation of that principle ; and the question is, whether the tes-
tator gave this legacy as to his child ; which must be made out,
otherwise the presumption of satisfaction cannot arise. In no
ease has the Court proceeded on any other supposition than that
the legacy was given to the legatee as a child. If a legacy was
bequeathed to a child, with whom the testator had then no con-
nection, but afterwards married the mother, took that child as
his adopted child, and gave it a portion as such, the legacy not
being given in the same character, the portion would not be a
satisfaction ; the clear conclusion from all the authorities being,
that they must be given in the same character.

*In this case the legacy clearly is not given to the r*q7i-|
legatee as the child of the testator ; and no evidence can •- J
be received to show that it was given to her in that character,
the will containing an express statement, by way of description
certainly, that she is the child of another man. The objection to
the letter as evidence is, that it is produced directly to contradict
the will, which declares her to be the daughter of another. If,
however, it can be received, the fair inference is, that she was to
have both the legacy and the portion. It is a letter from the
proposed husband, suggesting to the testator, that he ought,
besides the portion, to give this lady a legacy, and representing
that he could not believe, as it was said, that he intended the
contrary. The testator leaves the legacy standing, keeping the
letter, which must have drawn to his attention, that, besides the
portion, he had given her a legacy. The fair inference is, that
the letter had its effect, inducing him to make no alteration in

746 SATISFACTION. — ADEMPTION.

the will, but to leave the legacy standing. How is that to be
otherwise accounted for ? Can it be conceived that this testator
was acquainted with these decisions, and thence collected, that,
upon this doctrine of satisfaction, it was unnecessary for him to
make the alteration ? The case of Grave v. Lord Salisbury^ the
decision certainly turning upon particular circumstances, is
material as showing Lord Thurlow's reluctance to extend this
rule, of which he evidently disapproved.

Lord Chancellor Eldon. — I recollect that Lord Thurlow, in
that case, though the decision did not turn upon it, remarked
that as the law will not acknowledge the relation of a natural
child, the doctrine of this Court, on whatever principle founded,
is, that if a portion is given to a child, by will, or a gift so con-
stituted as to acknowledge the legal relation, and afterwards an
advancement is made on marriage, that is prima facie an ademp-
tion of the whole, or pro tanto ; but if the legacy is given to a
person standing in the relation of a natural child to the testator,
r*Q7o-i ^'^*i lis afterwards gives that child a sum of *money on
'- ^ marriage, the law does not admit the conclusion prima;
facie that the testator, at the time of making the will, recognised
that relation. The natural child, therefore, is in so much better
a situation, that, in his case, the advancement is not prima facie
an ademption, as it is in the ca=e of a legitimate child ; the effect
of which is, that the presumption is to be formed consistently
with the notion, that the testator has less affection for his legiti-
mate child than even for a stranger, as Lord Thurlow used to
express it.

His Lordship also made another observation, of great weight,
that ought to check any disposition to carry this further ; that,
having raised the presumption from the fact, you beat it down
by declarations, which, from the very nature of mankind, deserve
little credit, viz., what a man has done, or will do, by his will;
hoM' much shall stand, and how much shall not: declarations
generally intended to mislead ; but the prima facie presumption
is established beyond controversy.

The question is certainly of great consequence, whether this
class of cases does or does not require evidence that at the time
the legacy was constituted, the legatee, not standing in the
relation of child to the testator, was regarded by him quasi in
that relation, conceiving the purpose of placing himself in loco
parentis ; and if it is necessary that such a relation must then
exist, it is very difficult to conclude that this particular case falls
under that description. His purpose, whatever was his opinion
with regard to these children, seems to have been, tliat no one
should consider him as standing in the place of father. His ex-
pressions seem particularly selecte I with the view to avoid the
description of a i^ortion, and to denote, that, not he, but some
other person, stood in the situation of parent..

' 1 Bro. C. C. 435.

EX PARTE PYE. 747

In Shudal v. JekyU,'^ and the subsequent, case before Lord Thur-
low, upon the same principle, holding, that, by such a declaration,
that he misht leave somethina', but would not specify what, or
be bound, the legacy could not be partly cut down, a natural
interpretation was. that *taking 500/. from the legacy, r^oyq-i
and leaving 500?., he did leave something more beyond '- ^
what he had advanced ; but Lord Hardwicke correctly said he
had no means of collecting what was that something more ; ai^d
the will giving lOOOZ. was better evidence than any conjecture he
could form. If this letter can be considered as fair evidence that
he did not mean to disturb the v/ill, and that this fortune, as it
is called in the letter, should be an ademption of that fortune,
the doctrine of Shvdal v. Jekyll, must be applied to this case.
This is a very important question ; and I wish to read the cases,
particularly Trimmer v. Bayne^ upon which occasion I gave the
subject considerable attention.

The other question involves, not only the construction of the
French law, and the point whether that has been sufficiently in-
vestigated, but farther whether the jmoer of attorney am.ouvts here to
a declaration of truft. It is clear that this Court will not assist a vol-
unteer ; yet if the act is completed, though voluntary, the Cowt will act
upon it. It has been decided, that upon on agreement to transfer stock,
this Court will not interpose ; but if the party had declared himself to
be the trustee of that stock, it hecoynes the property of the cestui que
trust loithout more ; and the Court will act upon it.

Lord Chancellor Eldon (June 13th). — These petitions call for
the decision of points of more importance and difficulty than I
should wish to decide in this way, if the case was not pressed
upon the Court.

With regard to the French annuity, the Master has stated his
opinion as to the French law, perhaps without sufficient authority
or sufficient inquiry into the effect of it, as applicable to the pre-
cise circumstances of this case ; but it is not necessary to pursue
that ; as, upon the documents^ before me, it does appear that,
though in one sense this may be represented as the testator's per-
sonal estate, yet he has committed to what seems *to me r^onAi
a sufficient declaration that he held this part of the estate '- ^
in trust for the annuitant.

The other question is one of great difficulty ; whether a sum of
money, advanced upon the marriage of one of these young ladies,
when a settlement was executed, is to be taken to be a satisfac-
tion of a legacy, not given upon the face of the will as a portion,
not given to a person stated upon the will to be an adopted child
of the testator, or described merely by name, but given to an in-
dividual, a stranger, described in the will as the child of another

' 3 Atk. 516. =7 Ves. 508.

' See 3 Spence Eq. Jur. 53, r. (d), where otli"- ''octunents not set forth by the
reporter, and which may materially have influi [ the mind of Lord Eldon in
coming to this conclusion, are given.

748 SATISFACTION. — ADEMPTION.

person, who is designated as the father of that child. It not only-
does not appear that the testator represented himself as in loco
parentis, but he has designated another individual as being the
parent ; and, therefore, according to Lord Thurlow's opinion, in
Grave v. Lord Salisbury,^ the testator has expressed himself in
terms anxiously calculated to conceal the fact, that he was the
reputed father of that child, if he was so.

Without going through all the cases that were cited and those
referred to in them, having compared the case in Atkyns^ with
manuscript notes of that case, and looked into some other eases,
one in Ambler' and some earlier, I may state, as the unquestion-
able doctrine of the Court, that where a parent gives a legacy to
a child, not stating the purpose with reference to which he gives
it, the Court understands him as giving a portion ; and by a sort
6f artificial rule, in the application of which legitimate children
have been very harshly treated, upon an artificial notion that the
father is paying a debt of nature, and a sort of feeling upon what
is called leaning against double portions, if the father afterwards
advances a portion on the marriage of that child, though of less
amount, it is a satisfaction of the whole, or in part ; and in some
cases it has gone a length, consistent with the principle, but show-
ing the fallacy of much of the reasoning, that the portion, though
much less than the legacy, has been held a satisfaction in some
instances upon this ground, that the father, owing what is called
a debt of nature, is the judge of that provision by which he means
r*Q7c-i to satisfy it ; and *though at the time of making the will,
'- -'he thought he could not discharge that debt with less than
10,000/., yet by a change of his circumstances, and of his senti-
ments upon that moral obligation, it may be satisfied by the ad-
vance of a portion of .5000/.*

The Court seems, in the older cases, to have met with some
difBculty in determining whether this rule should be confined
to those who stood in the actual relation of parent and child ; and
it has accordingly been urged in argument, but not supported by
decision, except where accounted for by evidence of declarations,
that the Court have said they did not mean to confine this doc-
trine to persons standing in that actual relation; but, perhaps, it
might apply to a person placing himself in loco parentis, under-
taking the care of an orphan. But what is to be the evidence of
that, whether written evidence in the will and settlement, or the
conduct observed at the marriage, or to be derived from mere
declarations, is left so much afloat, that there is considerable dif-
ficulty in making a judicial decision upon it.

In Grave v. Lord Salisbury,^ the first case before Lord Thur-

' 1 Bro. C. C. 425. ^ Shudal v. Jekyll, 2 Atk. 516.

3 Watson V. The Earl of Lincoln, Amb. 325.

< See, bowever, Pym v. Lockyer, 5 My. & Cr. 29, and Kirk v. Eddowes, 3
Hare, 509, wbicb establish that a portion of less amount than the provision by
•will is a satisfaction pro tanto only, overruling, therefore, the cases alluded to
by Lord Eldon.

fi 1 n^n n ri aok

EX PARTE PYB. 749

low, Lord Salisbury had several natural children, to whom he
had given legacies by his will, making afterwards a provision for
them during his life, not ejusdem generis ; giving the living of
Hatfield to one ; a farm and stock to another ; upon which the
question arose. It was contended that this was a satisfaction ;
that he intended by the legacy to make a provision, or, in other
words, to discharge the obligation he owed to that child ; and he
had the same intention, advancing the portion, and the farm and
stock. Lord Thurlow felt the extreme hardship, as it is evidently,
that, in the case of children, whose relation, as such, the law
recognises, the doctrine of presumption is, that a subsequent ad-
vancement is a satisfaction of a legacy to such a child ; but, as
the laws does not recognise the relation between the putative
father and illegitimate child, as imposing this debt of nature, the
father in that case stands as a stranger ; and no such presumption
arises, in that case, where the ^subsequent advance is not r«o7f;-i
proved to have been for the very purpose of satisfying the ^ ^
legacy, and therefore the legatee is entitled to both. Lord Thur-
low directed a reference to the Master to inquire into the circum-
stances, who did not report the relation which the testator had
to those children ; and his Lordship, being pressed to send it back
on that account, refused to do so ; observing, that the object
might have been to conceal the circumstance of that relation ; and,
therefore, the Court would not make the inquiry ; but without
deciding what would have been the case if that relation appeared,
it was enough that it stood as the case of a stranger ; and there-
fore the other provision was not a satisfaction.

In the subsequent case of Powel v. Cleaver^ where the provision
made was described as a portion. Lord Thurlow stated expressly,
that, if the legacy is given, not as a portion, by a stranger, who
advances money on the marriage of the legatee, denominating
that advance a portion, that denomination will not have the same
effect in the case of a stranger, as it would in the case of parent
and child ; and Lord Thurlow asserts that there is no authority
contradicting that.

If that is right, it comes to this : that, where a father gives a
legacy to a child, the legacy coming from a father to a child must
be understood as a portion, though it is not so described in the
will ; and afterwards advancing a portion for that child, though
there maj' be slight circumstances of difference between that ad-
vance and the portion, and a difference in amount, yet the father
will be intended to have the same purpose in each instance ; and the
advance is therefore an ademption of the legacy ;^ but a stranger,
giving a legacy, is understood as giving a bounty, not as paying a
•debt: he must, therefore, be proved to mean it as a portion, or
provision, either upon the face of the will, oi', if it may be, and it
seems that it may, by evidence applying directly to the gift pro-

' 2 Bro. C. C. 499.

^ But pro tanto only if of less amount ; Pym v. Lockyer, 5 M. & C. 39 Kirk
V. Eddowes, 3 Hare, 509. ,

750 SATISFACTION. — ADEMPTION.

posed by that will ; and, recollecting how artificial the rules are,
where a person has edt^cated a child through life, considering him-
P^o„„-, self as standing in the relation of putative father to *that
'- ^ child, having a father acknowledged, describing that child
as the child of a mother named, and a father named, and also
making a provision for that father and mother, it would be too
much, upon such a will to say, this is the case of a person meaning
to pay, not what the Court calls a debt of nature, but a debt he
meant to contract : in other words, meaning to put himself in loco
parentis,' in the situation of the person described as the lawful
father of that child.

That brings the question to this — whether this advance of a
portion of 3U00^. is an ademption of the legacy between strangers,
on the ground that this subsequent advance is treated as a portion
or fortune? and whether the testator, having given that legacy
of 4000/., and afterwards giving to that legatee a portion on mar-
riage, the mere circumstance of giving that as a portion or fortune
is to be taken as evidence, that when the will was made, it was
meant as paying a debt of nature? or whether it was not to be
undei'stood, as in the first instance giving a bounty, and in the
other making an addition to that bounty ? In this case, as in
Shaded v. Jekyll^ more was intended to be given, but in the case
of a stranger no authority says the advance of a less sum shall be
an ademption of the whole. This letter, if it is to be admitted in
evidence, shows how little such evidence can be trusted, as no one
would have supposed, upon the correspondence, that the testator
had such a will in his desk. Upon the authority of PoLuel v.
Cleaver^ unless you can show, that, at the time of making the will,
the testator meant to give a portion as a parent, or as standing in
loco parentis, and meant to satisfy that, in the whole or in part,
by the subsequent advance the Court is not authorised by the
artificial rules of equity to hold it as a satisfaction.

I am not much impressed by the objection, that he had not
altered his will. The answer is, that the subsequent advance
operates a revocation, and, therefore, actual revocation was un-
necessary ; but it is too much to say, upon such circumstances as
are before me, that this advance of 3000/. is an ademption of the
r*'^781 ^®S^°7 of 4000/. and the *contingent interest ; and though
L -' I believe I am disappointing the actual intention, and
that this lady will get more than was intended, I am bound by
tlie rule of the Court to say, that this is not a satisfaction.

^ Under this judgment the order was pronounced, dismissing
the first petition, and directing a transfer and sale of the Bank
Annuities according to the prayer of the other ; upon which if
was contended, that this should be considered as an appropri-

1 Tins definition of a person putting himself in locO pai-entis is approved
nd adopted by Lord Cottenliam, in Powys v. Mansfield, 3 My. it Or. 360, 36

2 Juue2ath, 1811.

of
367.

SIR JOHN TALBOT V. DUKE OF SHREWSBURY. 751

ation of the stock to this legacy at the date of the Master's re-
port ; and the funds having since fallen, the legatee was entitled
only to so much stock as would at that time have produced what
remained due on account of the legacy.

The LoKD Chancellor said : — The broad principle of the Court
is, that no attention whatever is paid to the rise or fall of the
stock ; and upon that ground it is considered equal, whether the
appropriation is in one way or another. The party takes the rise
or fall as it happens ; and therefore the petitioners are entitled to
have the sum reported due to them now raised.

*SIIl JOHN TALBOT v. THE DUKE OF .^o^qn
SHREWSBURY. L ' -1

DE TERM. S. MICH. 1714.

REPORTED PREC. CH. SOi.

Satisfation of a Debt by a Legacy.] — A debtor loiihout taking
notice of the debt, bequeaths a sum as great as, or greater than,
the debt, to his creditor : this shall be a satisfaction ; secus, if it
were bequeathed on a contingency, or if it were less than the debt.

In this case it was said by Mr. Yernon, and agreed to by Sir
J. Trevor, M. R., that if one being indebteil to another in a sum
of money, does, by his will, give him a sum of money as great as,
or greater than, the debt, without taking any notice at all of the
debt, that this shall nevertheless, be in satisfaction of the debt,
so as that he shall not have both the debt and the legacy ; but
if such a legacy' were given upon a contingency, which if it
should not happen, the legacy would not take place, in that case,
though the contingency does actually happen, and the legacy
thereby became due, yet it shall not go in satisfaction of the
debt ; because a debt which is certain, shall not be merged or lost
by an uncertain and contingent recompense ; for whatever is to
be a satisfaction of a debt, ought to be so in its creation, and
at the very time it is given, which such contingent provision is
not ; and cited the case of one FoUexfen to be so adjudged by the
Lord Harcourt, and affirmed on an appeal in the House of Lords.
And as it is in the case of a will, so it will be likewise if the pro-
vision were by a deed ; if the provision be absolute and certain,
it sh^ll go in satisfaction of the debt ; but if it be uncertain and
contingent, it can be no satisfaction, because it could not be so in
its creation, and the happening of the contingency afterwards will
not alter the nature of it.

1 " Debt " in the text, evidently by mistake.

752 SATISFACTION. — ADEMPTION.

pggQ-, *CHAS'CEY'S CASE.1

DB TERM. S. HIL. 1717. TRIN. 1725.

EEPOETED 1 P. WMS. 408.

Satisfaction of a Debt by a Legacy.] — Although it is a general
rule, that if a legacy from a debtor to his creditor be equal to or greater
than the debt, it wilt he presumed to be a satisfaction of it, slight
evidence of the intention will take the case out of the rule. Thus,
where one being indebted to his servatd for wages, in 100?., had
given her a bond for that sum, as due for 2vages, and afterwards by
will, gave her 500?. for her long and faithful services, and directed
that cdl his debts and legacies should be paid, it was held, that the
legacy was not a satisfaction for the debt due on the bond.

One being indebted for wages to a maid-servant, who had lived
with him a considerable time, gave her a bond for 100?., and in
the condition of the bond, it appeared to be for wages. After-
wards, the testator by his will, among other things, gave a legacy
of 500?. to his maid-servant ; and it was mentioned in the will to
be given to her /or long and faithful services ; [and he directed that
all his debts and legacies should be paid.f

The maid servant having, on her master's death, possessed her-
self of divers goods that were his, the plaintiff, Chancey, who
was the executor, brought his bill against her for an account, but
paid her the 100?. and interest secured to her by the bond.

For the defendant it was objected, that she should have both
the money due on the bond and also the legacy; for the legacy
was a further reward for her services, and intended to be a gift
in toto : whereas, if the bond were to be taken out of it, it would
r*oo-| 1 be only a gift of *400?. ; and as to the old notion, that the
^ " -i testator must be just before he is bountiful, that was
nothing where the testator had wherewithal to be both just and
bountiful.^

Besides, that this was not insisted upon by the bill ; so that
the defendant had no notice or warning, to prove that the testa-
tor intended to give her the full legacy of 500?. over and above
the bond ; which proof, though by parol only, had yet been fre-
quently admitted.

Also, for that, it appeared, the executor himself had paid the
bond, and taken a receipt for it.

• Chancey v. Wootton, and e contra, Reg. Lib. A. Fol. 449 : Sel. Cb. Ca. 44
2 Eq. Ca. Ab. 354, pi. 18.

2 See tbe judgment of Lord King, post, 382.
' Salk. 155.

CHANCET'S CASE. 753

'Sir J. Trevor, M. R. — It is sufficient that it appears the credi-
tor has a greater legacy given her, and the plaintitf, the executor,
prays relief, which is as much as if he had prayed that he might
not be compelled to pay both the debt and legacy.

This is stronger than the usual case ; for the bond is for service,
and the 500?. legacy is also for service ; so that it is a greater re-
ward and satisfaction for the same thing. Neither is it material
that the executor has paid it, for he was bound to pay the bond
at law, and his only method is to stop it out of the legacy ; but
clearly, such a legacy is not a satisfaction for service done to the
testatoi-^ alter the making of the will.

'Lord Chancellor King afterwards reversed this decree, upon
which occasion his Lordship said, he was not for breaking in upon
any general rule,* though he did not see any great reason why, if
one owed 1001. to A. by bond, and should afterwards give him a
legacy of 500?. this legacy must go in satisfaction of the debt ;
for, if so, the whole 500?. would not be given, in regard to 100?. of
it would be paid towards a just debt, which the testator could
not help paying ; and therefore the whole 500?. would not be
given, against the express declaration of the testator, who says
he gives the same ; and though it seemed to have obtained as a
rule that a man should be *just before he is boioitiful, yet, r-».DQ9-|
when a man left such an estate and fund for his debts and •- "J
legacies,*as that he might thereout be both just and bountiful,
and especially when there seemed to be not only an intention, but
also express words to that purpose ; in such case, his Lordship did
not see but it would not be as reasonable that the whole legacy
should take efiect as a legacy, and that the debt should be paid
besides.

And it was said at the bar, by Mr. Talbot, to have been a strange
resolution, that if [ owe a man 100?. and give him a 100?. legacy,
then I give him nothing, but only pay him what I am bound to
do ; but if the legacy be twenty shillings less, viz., 99?., here it
is a good gift and legacy, exclusive of the debt.

However, the Court said, they were not by this resolution over-
turning the general rule ; but that this case was attended with
particular circumstances varying it from the common case, viz.,
that the testator, by the express words of his will, had devised
" that all his debts and legacies should be paid ; " and this 100?. bond
being then a debt, and the 500?. being a legacy, it was as strong as
if he had directed that both the bond and the legacy should be
paid ; that, when the testator gave a bond for the 100?. arrear of
wages, it was the same thing as paying it ; and as, if he had actu-
ally paid it and had afterwards given the legacy of 500?., the
executor could not have fetched back the 100?. and made the de-

'Hil. Term, 1717. .

' Vide Salk. 508 ; 3 P. Wms. 8# ; 3 P. "Wms. 355.
'Trin. Term, 1725.

* See the rule stated in Talbot v. Duke of Shrewsbury, ante, p. 379.
VOL. II 48

754 SATISFACTION. — ADEMPTION.

fendant refund ; so neither should the bond, in this case, be satis-
fied by the bequest of the legacy.

His Lordship also observed, that the executor (the plaintiff" Mr.
Chancey) did not hims.'lf take this 500^. legacy to be a satisfac-
tion for the bond, as appeared by his having voluntarily paid the
100/. to the defendant, and that his Lordship vi'as of the same
opinion.

So the decree at the Eolls was reversed, and the respondent
(the maid-servant) had both her debt and legacy.

*" Satisfaction " (the doctrine of -which is discussed in the cases
L -' towhich this note is appended) may be defined to be the dona-
tion of a thing, with the intention, either expressed or implide, that it is to
be taken, either wholly or in part, in extinguishment of some prior claim
of the donee. See Lord Chichester v. Gonventry, 2 L. R. Ho. Lo. 95.

With regard to these cases where the intention is expressly declared,
it is unnecessary to say anything ; for it is clear, that, if any person
expressly declares that a subsequent gift is to be in satisfaction of a
prior demand, the donee cannot claim both. See Sardingham v.
Thomas, 2 Drew. 353.

Those cases, however, where from the mere fact that the parties
stand in a certain relation to each other, the presumption arises, that a
subsequent donation is intended to be in satisfaction of a prior claim,
are well worth examining. They may be divided into three classes.

1st. The satisfaction of legacies by portions, which is commonly
called the ademption of legacies ; 2d, the satisfaction of portions by
legacies; and, 3d, the satisfaction of debts by legacies. Since, how-
ever, the doctrine of satisfaction is not applied in the same manner to
each of these classes of cases, they may more conveniently be con-
sidered separately.

1st. As to the satisfaction or ademption of a legacy by a portion.

The rule is well laid down by Lord Eldon, in the principal case of Ex
parte Pye, " that where a parent gives a legacj' to a child, not stating
the purpose with reference to which he gives it, the Court understands
him as giving a portion ; and, by a sort of artificial rule — upon an ar-
tificial notion, and a sort of feeling upon what is called a leaning against
double portions — if the father afterwards advances a portion on the
marriage of that child, though of less amount, it is a satisfaction of the
whole, or in part." Lord Eldon, however, in that case, in accordance
with what was then the general opinion (1 Rop. on Legacies, 366, 4th
edit.), seems to have thought that the gift of a portion of less amount
than a legacy, might be a total adempfton of it ; but in the very im-
portant case of Fym v. Lockyer, 5 My. & Cr. 29, decided by Lord Cot-

EX PARTE PTE. — CHANCEY'S CASE. 755

tenham, after an elaborate examination of all the authorities, it was de-
termined that such a portion would be merely an ademption of tlie
legacy pro tanto. Is^ee also Kirh v. Eddows, 3 Hare, 509 ; Montague v.
Montague, 15 Beav. 565 ; Hopwood v. Eopwood, 7 Ho. Lo. Ca. T28.

The rule or presumption against double portions is equally applica-
ble in eases where a person has placed himself in loco parentis:
*Booker v. Allen, 2 Russ. & My. 2*70; Powys v. Mansfield, 3
My. & Cr. 359 ; Watson v. Watson, 33 Beav. 5U. [*384]

And so strong is the leaning or presumption against double por-
tions, that it will not, as observed by Lord Eldon, m Ex parte Pye,
Ex parte Duhost, be repelled, " tliough there may be slight circumstan-
ces of difference between the advance and the portion." Thus, the
presumption will not be repelled by the circumstance of the portion or
legacy being payable at different times {Hartopp v. Hartopp, IT Ves.
184) ; nor by the circumstance that the limitations of the portion under
the will are very different from the limitations in the settlement. See
Trimmer v. Bayne, 1 Ves. 508 ; Monck v. Monck, 1 Ball & B. 298 ;
Sheffield v. Gonventry, 2 Russ. & My. 317 ; Piatt v. Piatt, 3 Sim. 503 ;
Days V. Boucher, 3 Y. & C. Exch. Ca. 411 ; Powys v. Mansfield, 3 My.
& Cr. 359, 374. In Lord Durham v. Wharton, 3 C. & F. 146 ; 10
Bligh, N. S. 526, L. being seised of real estates (devised to him by his
brother, charged with 5000L for his daughter — afterwards Mrs. W., —
the interest to be raised for her maintenance, if L. should so direct), by his
will, in 1788 bequeathed 10,000L to trustees, one half to be paid at the
end of three years, and the other half at the end of six years after his
death, with 4Z. per cent, interest from his decease, in trust for his daugh-
ter for life, and after her decease in trust for her children, as she should
appoint by deed or will, and, in default of appointment, for all the
children equally ; the shares of sons to be vested at twenty-one, of
daughters at twenty-one or marriage ; and if his daughter sliould have
no child, or her sons should die under twenty-one, and her daughters
under twenty-one and unmarried, the 10,000Z. was to fall into the resi-
due of his personal estate; and he declared that the sum of 10,000L
was over and above the 5000Z. devised to her by the will of his brother.
On the marriage of the daughter, in 1790, L. agreed to give 15,000Z. to
Ms daughter as a marriage portion, to be paid to the intended husband
upon his securing by settlement, according to his covenent, pin-money
and a jointure for his wife, and portions for the younger children of
the marriage, and interest in the meantime ; and then declare that
the 15,000Z. was in full satisfaction and discharge of all and every
sum and sums of money which the daughter could claim under her
uncle's will. The settlement was executed, and the 15,000Z. paid to the
husband. L. died in 1794. It was held in the House of Lords, re-
versing the decisions of Sir L. Shadwell, V. C, and Lord Brougham,
C. (reported 5 Sim. 297, 3 My. & K. 427), that the legacy of 10,000Z.

756 SATISFACTION. — ADEMPTION.

was adeemed by the portion *advanced by L. on the marriage
'- -I of his daughter.

It has been observed by Lord St. Leonards, in his important Treatise
on the Law of Property, that there could be no fair doubt of the inten-
tion in this case to adeem the legacy under the father's will ; but the
difficulties in law were of great weight. The 15,000Z. was paid to the
husband, and, in truth, was not settled at all on the children, although,
in consideration of it, pin-money and a jointure, and portions for the
younger children, were provided ; and even the trusts in the will of the
10,000Z. for the children, and the trusts in the settlement to raise por-
tions for the younger children, were dissimilar. These difficulties were
overcome, and the substance of the case was regarded. The daughter
was entitled to 5000Z., and the father had by his will provided an addi-
tional lO.OOOL ; he therefore intended her portion to be 15,000Z. Upon
her marriage he accordingly advanced 15,000Z. for her portion, declar-
ing it to be in satisfaction of the debt of 5000L This certainty did not
prevent the advancement from operating also as an ademption of the
lO.OOOZ. legacy under the father's will. "It would be found difficult,"
he adds, " to reconcile the decisions on this head previously to the
decision in the Lords, and I do not think that the latter has been
always kept in view by the Courts since it was pronounced. It is, of
course, a binding authority, and, as the principles upon which it was
decide^ are plain, and highly favourable to the real intention in such
cases, it ought to be strictly followed. Having now a clear rule, we
ought not lightly to depart from it." Sugd. Prop. 128. And see
Montefiore v. Guadalla, 1 De G. F. & Jo. 93 ; Phillips v. Phillips,
34 Beav. 19 ; Dawson v. Dawson, 4 L. R. Eq. 504.

So, in Kirk v. Eddowes, 3 Hare, 509, it was held that the gift by a
father of a promissory note to his daughter Mrs. Kirk and her husband,
was an ademption pro tan to of a legacy bequeathed by the father in his
will, to his daughter for her separate use for life, with remainder to her
children, as she should appoint, and in default of appointment to them
equally ; the Vice-Chancellor Wigram observing : " I do not mean to
decide that a legacy to A. can be adeemed by a mere advance to another
person than A. That might be a simple revocation, and not ademption ;
nor do I mean to decide, that, if in this case the bequest had been made
to Mrs. Kirk for life, remainder to children living at the time, and
named in the will, the bequest to the children could have been affected
by the advance in question. I give no opinion upon that case. But
here I find a legacy to Mrs. Kirk for her *separate use, with
L -I remainder to her children as a class ; that, I think, is in the
nature of a portion to the daughter herself." See also Carver v.
Bowles, 2 Euss. & My. 301 ; Delacour v. Freeman, 2 Ir. Ch. Rep.
633, 640.

EX PARTE PTE. — CHANCEY's CASE. 757

her father simpliciter, after the marriage, and not in consequence of
any promise made previous to the marriage taking place, will not be
an ademption of a legacy given by the father to his daughter : Bavens-
croft V. Jones, 32 Beav. 669, 670 ; 4 De G. J. & S. 224 ; and see
M'Clure V. Evans, 29 Beav. 422 ; but see Ferris v. Goodburn, 27 L.
J. Ch. N. S. 574.

There is no presumption of law that the payment of a sum of money
to a child (even by a father) before the date of the will, is to go against
a legacy to that child : per Wickens, V. C, in Taylor v. Carlwright,
26 L. T. Rep. 573 ; 14 L. R. Eq. 167, 176.

But if there be a contract by the child that it shall do so, the con-
tract may be valid. Thus, in Upton v. Prince, Ca. t. Talb. 71, a father
having two sons, A. and B., advanced them 1500Z. a-piece, and took
from each of them receipts in the following words : " Received of my
father William Prince the sum of 1500Z., which I do hereby acknowl-
edge to be on account and in par-t of what he has given, or shall in or
by his last will give unto me his son." The father afterwards made his
will, whereby, after reciting that he had advanced to his children A.,
C, and D. the sum of 1500Z. a-piece, he thereby in like manner be-
queathed unto his three other children B., F., and G. the several sums
of 1500L a-piece, and then gave the residue equally amongst all his
children. It was held by Lord Chancellor Talbot that the 1500Z. re-
ceived by B. in his father's lifetime was a satisfaction for what his
father gave him by his will, and that he should not have another 1500Z.

But it seems that a gift by the will of a father to a child for life
with remainder to the issue of such child, would not be adeemed by an
advance to the child made long before the will, although the testator,
when he made the advance, verbally intimated that his intention was
that it should have that effect : Taylor v. Cartwright, 26 L. T. Rep.
N. S. 571, 573 ; 14 L. R. Eq. 167, 176 ; 20 W. R. (V. C. W.) 603.

It may be here mentioned, that a legacy which has been adeemed by
a settlement or advancement, will not be revived or set up by a codicil
made after such settlement or advancement, although it confirms the
will and all the bequests therein contained. " It is very true," says
Lord Cottenham, in Powys v. Mansfield, 3 My. & Cr. 376, "that a
codicil, republishing a will, makes the will speak as from its own date,
for the purpose of passing after-purchased lands, *but not for
the purpose of reviving a legacy revoked, adeemed, or satisfied. L J
The codicil can only act upon the will as it existed at the time ; and,
at the time, the legacy revoked, adeemed, or satisfied, formed no part
of it. Any other rule would make a codicil, merely republishing a will,
operate as a new bequest, and so revoke any codicil by which a legacy
given by the will had been revoked, and undo every act by which it
may have been adeemed or satisfied. The cases are consistent with
this, as Drinkwater v. Falconer, (2 Ves. 623) ; Monck v. Monck (1 Ball

758 SATISFACTION, — ADEMPTION.

& B. 298) ; Booker v. Allen, {i Russ. & My. 270) ; and the case of
lioome V. Boome (3 Atk. 181), is not an authority against these deci-
sions, because the codicil was not considered in that ease as reviving
an adeeming legacy, it having been decided that there was no ademp-
tion." Nor is the codicil, in such a case, anj' evidence or additional
proof that no ademption was intended. See Powys v. Mansfield, 3 My.
& Cr. 376 ; Boome v. Boome, 3 Atk. 181 ; Montague v. Montague, 15
Beav. 565, 571 ; Alsop^s Appeal, 9 Barr, 374 ; Langdon v. Astor's
Hx'ors, 16 New York, 9, 37 ; see notes to Ashburner v. Maguire, ante.

The presumption, however, of satisfaction being intended, may be re-
pelled by the intrinsic evidence furnished by the different nature of the
gifts ; where, for instance, the testamentary portion and subsequent ad-
vancement are not ejusdem generis. See Holmes v. Holmes, 1 Bro. C.
C. 555, where a legacy to a son of 500Z. was held not to be adeemed by
a subsequent gift of one-half of the testator's stock in trade, valued at
1500Z. ,- and see Davys v. Boucher, 3 Y. & C. Exch. Ca. 411 ; but see
the remarks of Lord Cottenham on Holmes v. Holmes, in Pym v.
Lockyer, 5 My. & Cr. 48. And a legacy of a sum of money will not be
adeemed by an allowance of an annuity : Watson v. Watson, 33 Beav.
574. So, also, where the testamentary portion is certain, and the sub-
sequent advancement depends upon a contingency, the presumption of
satisfaction will be repelled : Spinks v. Bobins, 2 Atk. 493 ; Grompton
V. Sale, 2 P. Wms. 553.

But where the advancement was voidable only upon a remote con-
tingency, and which was considered by the party putting himself in loco
parentis and by all the other parties as equal to an absolute estate.
Lord Cottenham held, that the presumption against double portions
arose: Powys v. Mansfield, 3 My. & Cr. 359, 374.

It was formerly held, that where the bequest was of an uncertain
amount, as a bequest of a residue or part of a residue, the presumption
would not arise, as the idea of a portion ex vi termini was a definite
sum: Freemantle v. Bankes, 5 Ves. 85. And see Far nhavi y. Phil-
lips, 2 Atk. 215; Smith v. Strong, 4 Bro. C. C. 493; Watson v. The

Earl of Lincoln, Amb. 327 ; Davys v. Boucher, *3 Y. & C.
r*3881 ./ T 1 ^ J

L -J Exch. Ca. 397. But it has since been decided that a portion by
settlement or otherwise, will be a satisfaction according to the amount,
either in full or i)ro tanto, of a previous bequest of a residue : Schofield
V. Heap, 27 Beav. 93 ; Becton v. Barton, 27 Beav. 99 ; Montefiore
V. Guadalla, 1 De Gr. F. & Jo. 93 ; and see Lady Thynne v. The
Earl of Glengall, 2 Ho. Lo. Ca. 131; Meinertzhagen v. Walters,
20 W. R. (V. C. B.) 505 ; 7 L. R. Ch. App. 670 ; lb. (L. J.) 918.

A person to whom a testator has left a share of his residue, will not
be entitled to have the residue augmented by bringing into account adr
vauces made to children, and which are taken by them in part satisfac-

EX PARTE PTE. — CHANCEY'S CASE. 759

on of their share of the residue : Meinertzhagen v. Walters, 20 W. R.
\^..C. B.) 505;Ib. (L. J. ) 918.

Although a legacy given to a child is limited over upon a contin-
ency, it may be adeemed by a subsequent advancement to the child
lone, so as to deprive the person entitled under tlie limitation over of all
enefit. Thus; in Twining v. Powell, 2 Coll. 262, a testatrix in looo
arentis to Lydia Mosse, bequeathed to her as her adopted child
0,0OOZ. in money, with a limitation over to a charity in case Lydia
losse died without children. The testatrix afterwards transferred
2,000?. Consols into the joint names of herself and Lydia Mosse. It
ras held by the Vice-Chancellor Knight Bruce, not only that the legacy
ras adeemed as to Lydia Mosse, but was also extinguished as to the
harity. " The claim of the Attorney-General," said his Honor, " in
aspect of the 10,000Z. is one that created some difficulty in my mind.
Ls to Miss Mosse, that 1 gacy was adeemed or satisfied, and I thinli that
diss Mosse, surviving the testatrix, was intended b}' her to become,
,nd accordingly is, absolutely entitled to the stock by means of whicli
t was adeemed or satisfied. The question is, whether the stock, being
xempt from aiiy provision in favour of charity, and Miss Mosse being
larred of any interest or claim under the will in respect of the 10,000Z.,
here is still an effectual testamentarj^ provision in favour of charity as
0 that sum, in the possible event of her dying without leaving a child,
,s I thinli there would have been had there been no ademption — no
atisfacti ^n. This question, I repeat, has appeared to me one of some
mbarrassment ; but I have come to the conclusion, that the testatrix
annot be held to have intended, that, in the event of the legacy of
0,000Z. being in her lifetime adeemed or satisfied as to Miss Mosse by
he testatrix (who, it is plain, had placed herself before the will, and
onsidered herself, at the date of the will, in loco parentis towards Miss
ilosse), it should not be held extinguished for every purpose, and
■should not, therefore, be considered as falling absolutely into |-^„.q-,
he residue. I think that I decide in conformity with the inten- L -I
ion of the testatrix, and am not contravening any rule of law, in saying
hat the legacy of 10,000?., as a legacy, is extinguished, and has fallen
Qto the residue."

An advancement may be made to a child as a portion, at other times
han that of marriage, and the presumption against double portions
n\\ then arise. For instance, if a subsequent gift be described in a
writing as a portion, or if an advancement be made not evidenced by
rriting, evidence, as will hereafter be more fully shown, is admissible
0 show the nature of the transaction ; but the Court will not add up
mall sums which a parent may give to a child, to show the}' were in-
snded as a portion : see Suisse v. Lowlher, 2 Hare, 434 ; Scholfield
. Heap, 27 Beav. 93 ; Nevin v. Drysdale, 4 L. R. Eq. 517.

A legacy by a parent or a person in loco parentis is not satisfied by

VtJU SATISFACTION. — ADEMPTION.

occasional small gifts in the testator's lifetime : Watson v. Watson, 33
Beav. 5Y4 ; but see Ferris v. Goodburn, 27 L. J. (Ch.) N. S. 514, and
a sum of money given by a father to his daughter for a wedding outfit
and a wedding trip has been held not to be an ademption of a legacy :
Itavenscroft v. Jones, 32 Beav. 669 ; 33 L. J. Ch. (N. S.) 482 ; 4 De G.
Jo. & S. 224.

Where a legacy was held pro tanto satisfied by a gift of stock, it was
held that the value of the stock must be ascertained as at the time of
the gift : Watson v. Watson, 33 Beav. 5T4.

2nd. With respect to the satisfaction of a portion by a legacy (upon
which subject the case of Hinchcliffe v. Hinchcliffe, Ves. 51 6, is a lead-
ing authority), the rule is, that wherever a legacy given by a parent, or
a person standing in loco parentis, is as great as, or greater than, a
portion or provision previously secured to the legatee upon marriage or
otherwise, then, from the strong inclination of Courts of equity against
double portions, a presumption arises that the legacy was intended by
the testator as a complete satisfaction : (Bruen v. Bruen, 2 Verm. 439 ;
Moulson V. Moulson, 1 Bro. C. C. 82 ; Copley v. Copley, 1 P. Wms.
14Y ; Ackworth v. Achworth, 1 Bro. C. C. 307, n. ; Byde v. Byde, 1
Bro. C. C. 308, n. ; S. C, 2 Eden, 19 ; 1 Cox, 44 ; JDuke of Somerset
V. Duchess of Somerset, 1 Bro. C. C. 309, n. ; Finch v. Finch, .1 Ves.
Jun. 534; Hinchcliffe v. Einchcliffe, 3 Ves. 516 ; Sparkes v. Gator, 3
Ves. 530 ; Pole v. Lord Somers, 6 Ves. 309 ; Bengough v. Walker, 15
Ves. 507; and see Lethhridge v. Thurlow, 15 Beav. 334; Ferris v.
Goodburn, 27 L. J. N. S. (Ch. 574 ;) if the legacy is not so great as the
portion or provision, a presumption apses that it was *intended
L -^ as a satisfaction pro tanto : ( Warren v. Warren, 1 Bro. C. C.
305 ; 1 Cox, 41 ;) and the bequest of the whole or part of a residue will,
according to its amount, be presumed either a satisfaction of a portion
in full, or pro tanto : Lady Thynne v. The Earl of Glengall, 2 H. L.
Ca. 131 ; in that case a farther having, upon the marriage of one of his
two daughters, agreed to give her a portion of 100,000L SI. per cent.
Consols, transferred one-third part tliereof in stock to the four trustees
of the marriage settlement, and gave them his bond for the transfer of
the remainder in like stock upon his death, the latter stock to be held
by them in trust for the daughter's separate use for life, and after her
death for the children of the m.arriage, as the husband and she sliould
jointly appoint. The father afterwards, by his will, gave to two of the
trustees a moiety of the residue of his personal estate, in trust for his
daughter's separate use for life, remainder for her children generally,
as she should by deed or will appoint ; it was held in the House of
Lords, affirming the decision of Lord Langdale, M. R. (reported 1 Kee.
769), that the moiety of the residue given bj' the will was in satisfaction
of the sum of stock secured by the bond notwithstanding the diflference
of the trusts ; and it being found to be for the benefit' of the daughter

EX PARTE PYE. — CHANCEY'S CASE. 761

and her children, if she should have any, to take under the will, she was
bound to elect so to take ; and see Richman v. Morgan^ 1 Bro. C. 0.
63 ; 2 Bro. C. C. 394 ; Bengough t. Walker, 15 Ves. 501 ; Campbell v.
Campbell, 1 Law Rep. Eq. 383.

And since Courts of equity lean strongly against double portions, as
in the preceding class of cases, considerable differences only between the
settlement and the will are considered sufficient to repel the presumption
of satisfaction ; slight variations, for instance, between the settlement
and the will, as to the times of the payment of the portion or legacy, or
between the limitations in the settlement and the will, are not sufficient
for that purpose. See Sparkes v. Gator, 8 Ves. 530 ; Weall v. Rice, 2
Russ. & My. 251; Earl of Glengall v. Barnard, 1 Kee. 769; S. C,
nom. Lady Thynne v. Earl of Glengall, 2 H. L. Ca. 131.

The presumption, however, of satisfaction being intended, may, as in
the former class of cases, be repelled by intrinsic evidence, showing the
intention of the parent in favour of double portions (Lethbridge v.
Thurlow, 15 Beav. 334), which may also be sufficiently indicated from
the different nature of the gifts. For instance, where the portion is
vested and the legacy is contingent, the presumption will be repelled :
for it would be hard to say, that a mere contingency should take away
a *portion absolutely vested : Bellaais v. Uthwatt, 1 Atk, 426 ;
Eanbury v. Hanbury, 2 Bro. C. C. 352. And see Pierce v. L -^
Locke, 2 Ir. Ch. Rep. 205, 215) ; or where the husband and children of
the marriage take an interest under the settlement, but nothing under
the will : Lord Chichester v. Coventry, 2 L. R. Ho. Lo. 1\,

The presumption agabist double portions may also be repelled by a
charge of debts before the gift in the will, under which charge a sum
covenanted to be paid in a previous settlement might be included. lb.

And according to recent authorities, it appears, that the presumption
against double portions will be more easily repelled, in the present
class of cases, where the settlement precedes the will, than in the former
class of cases, where the will precedes the settlement. Thus, in Lord
Chichester v. Coventry, 2 L. R. Ho. Lo. Yl^ the father of the in-
tended wife (Lady John Chichester), on her marriage in 1844, cove-
nanted with trustees to pay them 10,000Z. three months after their de-
mand in writing, and in the meantime, to paj' interest on the principal
sum by half-yearly payments. The trusts of the 10,000Z. were, during
the joint lives of the husband and wife, to pay the wife 200Z. part of the
income as pin-money, and the residue to the husband, to pay the whole
income to the survivor of the husband and wife for life, and after the de-
cease of the survivor, the fund to be in trust for the issue of the mar-
riage, as the husband and wife, or the survivor, should appoint, and in
default of appointment, to the children of the marriage who should
attain twenty-one or marry, and in default of children attaining a vested
interest, for the wife if she survived her husband, but if she died in his

(Oil SATISFACTION. — ADEMPTION.

life, as she should appoint by will, and in default of appointment intrust
For her next of kin. The father by his will, dated the 3d of December,
1859, gave his residuary real and personal estate, to trustees in trust to
convert it into money, to pay thereout his debts and legacies, and stand
possessed of the residue as to one moiety upon trust to pay the income
to his daughter. Lady Chichester, for life for her separate use, and
after her death, then if she died in her husband's lifetime, upon trust
for such persons other than her husband, as she should by will appoint,
but if she survived him, for such persons as she should by deed or will
appoint, and in default of appointment, upon precisely similar trusts for
his daughter, Mrs. Paul, with an ultimate limitation to his nephew.
And as to the other moiety upon precisely similar trusts, except
that the disposition in favour of Mrs. Paul preceded those in favour
of Lady Chichester. The 10,000L was not paid by the *tes-
[*392] ^^^^^ ^^ jjjg lifetime. It was held by the House of Lords (re-
versing the decision of the Lords Justices, dissentiente Lord Justice
Turner in the case of Coventry v. Chichester, 2 De G. Jo. & Sm. 336 ;
which affirmed the decision of Sir W. Page Wood, Y. C. reported 2
Hem. & Mill. 149) ; that the great difference between the limitations of
the 10,000L in the settlement and in the will, and the direction in the
will for the payment of debts (which would include the debt under the
covenant) were sufficient to overcome any presumption against double
portions. " In the first place," said Lord Cranworth, " The rule against
double i)ortions, is but a rule of presumption, aud there is much less
difficulty in supposing that it was not intended to prevail where the
person to whose dispositions it is to be applied, had not the power to
enforce it without the consent of others, than in a case where the whole
was under his absolute control. When the will precedes the settlement
it is only necessary to read the settlement as if the person making the
provision had said, ' I mean this to be in lieu of what I have given by
my will.' But if the settlement precedes the will, the testator must be
understood as saying, ' I give this in lieu of what I am already bound to
give, if those to whom I am so bound will accept it.' It requires much
less to rebut the latter than the former presumption. Add to which,
the necessity for making such a declaration in express terms would be
much more obvious to a testator making a will whereby he desired to
affect rights already acquired, than to a settlor making an absolute pro-
vision by deed for one who had acquired no previous rights whatever.
It has been truly said, that no positive rule has been, or can be laid
down, as to what is sufficient to rebut the prima facie presumption
against double portions. That is a matter which from the nature of
things, must be left, in each particular case, to the judgment of the tri-
bunal which has to decide it. But one great question always has been,
whether that which has been given by the latter, is given to be enjoj'ed
in the same or nearly the same manner as that which is given by the

EX PARTE PYE. — CHANCET's CASE. 763

former iustrument. When a parent has by his will given a portion to
his daughter absolutely, and has, by a settlement on her marriage, after
the date of his will, secured a sum of like amount for the benefit of her
and of her husband and issue, the mere circumstance that she would
have taken under the will an absolute interest, whereas, under the deed,
she takes only a life interest, raises no difficulty. The parent may rea-
sonably suppose the two gifts to be the same. If the daughter had

received the sum under the will, she would *probably have set-

r*3931
tied it in the way in which, by the hypothesis, it was settled in ^ -■

her parent's lifetime. It would not occur to the parent to think that
the interest taken by her was substantially different in the one case and
in the other. But there must be some limit in such cases, and more
especially where, as in the case now before the House, the settlement
precedes the will ; and looking at the two instruments now before us, I
have come to the same conclusion as my noble and learned friend
on the Woolsack, nameh-, that the differences between the gift by the
will and the benefits secured by the covenant are so great as to prevent
the application of tlbe general rule. In the first place, what is here
given is a moiety of the residue of the testator's real and personal
estate, after payment of debts and legacies. I do not doubt that a
share of residue may be treated as a portion within the rule against
double portions ; but the residue cannot be ascertained till after the
debts are paid. Here the testator was a man of great wealth, and does
not seem to have had any debt except that arising on the covenant on
hisdaughter's marriage. It is natural to suppose, that if he meant the
residue to be ascertained, as if no such covenant had been entered into,
he would have adverted to that in his will. He would have naturally
expressed what we are called on to presume; that the share of residue
thstt was given to his daughter Lady John Chichester, was to be ac-
cepted by her in lieu of what she was entitled to under his covenant.

" But even if that difficulty could be overcome, the enjoyment of the
residue was to be in a mode so entirely different from that secured by
the covenant, as to exclude, without express declaration, the notion
that the one could have been intended as a substitute for the other.
Under the covenant the husband has a life interest in the 10,000Z., sub-
ject to his wife's pin-money ; he has no interest whatever in the residue
under the will. Upon the covenant, the children of the marriage, if
there had been any, would have been entitled. There is no mention of
children in the will. In default of children, Lady John Chichester, if
she should die in her husband's lifetime, has, by the covenant, an abso-
lute power of appointment by will over the 10,OOOZ. ; but by the testa-
tor's will she is precluded from giving an3'thing to her husband.
There are other minor differences ; but those which I have pointed out
are sufficient to show, not only that the limitations in the two instru-

764 SATISFACTION. — ADEMPTION.

ments are substantially different, bfit that the testator was anxious to

make them so.

" Now, the rule of the Court on which the respondents rely is

-, ^founded on the assumption, tliat, in making the second instru-
r 3941 f 1 1 &

'- -* ment, the maker of it supposes himself to be substantially sat.

isfying the obligations of the first. It is impossible to put such a con-
struction on this will. No doubt it was open to the testator to impose
on his daughter, by express terms, the duty of accepting the moiety of
the residue, guarded, as it is, with respect to her disposal of it, in full
satisfaction of lier claims under the settlement ; but he has not done
this, and I can see no reason for presuming any such intention which
has not been expressed. I am, therefore, of opinion that the decree
ought to be reversed, and the case sent back to the Court of Chancery,
with a declaration that the gift of the moiety of the residue was not in
tended to be in substitution of the rights acquired under the covenant."

See the remarks on this case in Dawson v. Dawson, 4 L. E,. Eq. 504 ;
see also M' Carogher v. Whieldon, 3 L. R. Eq. 236 ; Paget v. Grenfell,
6 L. R. Eq. 7.

So, also, where the gift by the will and the portion are not ejusdem
generis, the presumption will be repelled. Thus, land will not be pre-
sumed to be intended as a satisfaction for monej', nor money for land :
Bellasis v. Uthwatt, 1 Atk. 428; Goodfellow y. Burchett, 2 Vern. 298;
Hay V. Stanhope, 2 Ch. Rep. 159 ; Savile v. Savile, 2 Atk. 458; Grave
V. Earl of Salisbury, 1 Bro. C. C. 425. However, in Bengough v. Wal-
ker, 15 Ves. 507, it was held by Sir W. Grant, M. R., that a bequest" by
a testator to his son of a share in powder works, to be made up in value
to 10,000Z. charged with an annuity for the life of another person, was
a satisfaction of a portion of 2000Z. to which the son was entitled under
the testator's marriage settlement.

Sometimes a settlement containes a declaration that an advancement
by the parent, in his lifetime, shall be considered in part or full satis-
faction of the portion, unless the contrary is expressly declared by
some writing. In such cases a question may arise, whether a legacy by
will shall be considered as an advancement in the lifetime of the parent.
It has been decided that it will be so considered, and that a legacy of a
particular sum, or of a residue, for it appears immaterial which, will be
held a satisfaction in full, or pro tan to of the portion (Onslow v. Michell,
18 Ves. 490; Leake y. Leake, 10 Ves. 489; Golding \. Haverfield,
M'Cl. 345 ; Noel v. Lord Walsingham, 2 S. & S. 99 ; Frazakerly v.
Gillibrand, 6 Sim. 591 ; Papillon v. Papillon, 11 Sim. 642 ; sed vide
Douglas Y.Willis, 1 Hare, 310); but the share of a parent's property
under his intestacy, will not be considered as an advancement in his
lifetime: Twisden v. Twisden, 9 Ves. 413.

*It seems that where a parent, or person in loco parentis,
L -' makes a provision by a settlement for his children equal to or

EX PARTE PTE. — CDANCEY's CASE. 765

greater than a provision contained in a former settlement, it may be
considered as a satisfaction ; as, for instance, where, by a will executed
contemporaneously with the second settlement, he declares that a pro-
vision contained in it is to be taken as a satisfaction : Davis v. Cham-
bers, 7 De G. Mac. & G. 386 ; 3 Jur. N. S. 291- But no presumption
will arise where there are those distinctions between the nature of the
two gifts, which the Court has relied upon in cases of satisfaction upon
wills, to shew that the presumption does not arise : see Palmer v. Newpll,
20 Beav. 32, 40, where Sir John Romilly, M. R., was of opinion that
the presumption less readily arises in the instance of gifts by two deeds,
than in cases where the second gift is by a will, in which latter case a
testator is supposed to be disposing of the whole of his property, and
distributing it amongst the diiferent objects of his bounty. lb. 40.
This case, on appeal, was affirmed by the Lords Justices : 8 De G.
Mac.-& G. 14.

Where a father, having power to appoint to a child out of a portion
fund, himself advances the money, the presumption is that he does so
for the benefit of the children interested in the portion fund and not
for his own benefit or for that of the estate : Ford v. Tynte, 2 Hem. &
Mill.- 324; Lee v. Head, 1 K. & J. 620; Noblett v. Litchfield, 1 Ir. Ch.
515.

This presumption, however, may be rebutted by evidence of a differ-
ent intention, as, for example, that the advance was made in substitu-
tion for an appointment out of the portion fund for the purpose of
giving a sum in' cash in lieu of a mere charge : Ford v. Tynte, 2 Hem.
& Mill. 324.

All the contemporary circumstances are admissible in evidence of
such intention, but subsequent declarations are not admissible : Ford
V. Ty7ite, 2 Hem. & Mill. 324.

Although according to the law of Scotland the presumption of
satisfaction of a portion by a legacy from a father to his child does
pot arise, it will do so, although the deed by which the portion is
covenanted to be paid is Scotch, if the will by which the legacy is given
is that of a domiciled Englishman. See Campbell v. Campbell, 1 Law
Rep. Eq. 383 ; there by a settlement made in the Scotch form upon the
marriage of his daughter with a domiciled Scotsman, A., a domiciled
Englishman, covenanted to pay the trustees 4000Z. as a provision for
the benefit of his daughter and her husband and the younger children
of the marriage. The 4000Z. was not paid by A. during his lifetime,
but by his will made *after the death of his daughter, A. gave |-^ -,
16,000Z. between the younger children of the marriage. It was L -■
held by Sir W. Page Wood, V. C, that the will being an English dis-
position, the English doctrine of presumption against double portions
was applicable, and that the provisions made by the testator's will in

766 SATISFACTION. — ADEMPTION.

favor of Lis grandchildien operated as a satisfaction of the provisions
made for them by the settlement.

Election.] — Where, as in the former class of cases, the first provision
is by a will, it being a Voluntary and revocable instrument, a subsequent
advance will be a satisfaction, either wholly or in part, without refer-
ence to the wishes of the person advanced ; if, however, as in the latter
class of cases, the first provision is by settlement or other contract, a
subsequent legacy, considered as an advancement, will raise a case of
election, — that is to say, the legatee may, at his option, take either the
first or last provision : see 2 Ves. Jun. 465, n. (a) ; Copley v. Copley,
1 P. Wms. 147 ; Finch v. Finch, 1 Ves. Jun. 534 ; Einchcliffe v.
Einchcliffe, 3 Ves. 516 ; Pole v. Lord Somers, 6 Ves. 309.

A provision for a son by will may be held a satisfaction for the in-
terest he may take under a covenant by his father on his marriage, and
he will consequently be put to his election, although the provisions in
the will may not be held a satisfaction to the wife and children for what
they take under the covenant. Thus in M'Carogher v. Whieldon, 3 L.
R. Eq. 236, a father, upon the marriage of his son, covenanted, by will,
or otherwise in his lifetime, to give or assure one-flfth part of the real
and personal estate to which he might be entitled at or immediately
before his death (subject to the payment thereout of one-fifth of his
debts, funeral and testamentary expenses and legacies) to trustees upon
trust to pay the income to the son until (among other things) some
event should occur whereby the income would (if the same were thereby
to be made payable to the son absolutely (become vested in some othef
person or persons ; and then upon trusts for the benefit of the son's
wife and the issue of the marriage, with a discretionary trust for the
benefit of the son after his wife's death. By his will, the father directed
his debts to be paid by his executors, and charged them, as far as the
law permitted, on his real and personal estate to trustees in trust for
all and every his children who should be living at the time of his death.
The father died leaving five children. It was held by Lord Romilly,
M. R., that the gift in the will did not operate as a satisfaction of the
covenant in the settlement so far as the wife and children of the son
r^oQh-i were concerned ; that the trustees were ^entitled to one-fifth
part of the testator's real and personal estate, after payment of
his debts, legacies and funeral and testamentary expenses ; that the
gift in the will did operate as a satisfaction of all the interests of the
son under the settlement, and that the son must therefore elect between
his life interest under the settlement and the one-fifth of the residue
which would remain after satisfaction of the covenant. And the son
electing to take under the will his Lordship also held, that such election
determined his life interest under the settlement, and that the income
became payable to his wife.

As to election by a married woman, see Lady Thynne v. Earl of

EX PARTE PYE. — CHANCET's CASE. 767

Glengall^ 2 H. L. Ca. 118; and as to the doctrine generally, see ante,
vol. I., pp. 341, 3T6.

As to the admission of Extrinsic Evidence.'] — Although extrinsic
evidence cannot be admitted to alter, add to, or vary a written instru-
ment, or to prove with what intention it was executed, it seems to be
clear that, where a transaction takes place, not evidenced by writing,
which, if so evidenced, would raise a presumption that satisfaction of a
former gift by will was intended, parol evidence is admissible to prove
what the transaction really was. Thus, in Eoskins v. Roskins, Prec.
Ch. 263, the father, after giving 750L to his son by will, purchased a
cornetcy for him for 650Z. Evidence was admitted to show that this
was intended as a satisfaction pro tanto.

This subject was much discussed by the Yice-Chancellor Wigram, in
Eirk v. Eddowes, 3 Hare, 509. There, a father by will gave 3000L to
the separate use of his daughter for life, with remainder to her children ;
and after the date of the will, he gave to his daughter and her husband
a promissory note for 500L then due to him. Parol evidence was tend-
ered to show that, after the date of the will, the testator was requested by
his daughter to confer some benefit on her husband, and that thereupon the
testator gave her the promissory note, declaring that it was to be in part sat-
isfaction of the legacy of 3000Z. ; and that the testator was advised by his
solicitor that it was not necessary to alter his will to give it that effect : it
was held, that this evidence was admissible, as constituting an essential
part of a transaction subsequent to and independant of the will, of which
subsequent transaction there was no evidence in writing. His Honor,
after noticing the rule of law agains admitting parol evidence to add to
or explain a written instrument, says, " In this case, the advance of the
500L was after the date of the will. This, the second transaction, how-
ever, is not evidenced by any writing : and the technical rule to which
I *have referred, against admitting evidence to prove what was
the intention of the parties to that transaction, does not there- ■ L -I
fore apply. The question is, whether any other rule applies which
shall exclude the evidence. In order fully to try this question, I will first
suppose the 3000L to have been given absolutely to Mrs. Kirk for her
separate use. The defendant's evidence was not objected to, nor could
it have been successfully objected to, so far as it went to show the gift
of the note, its amount, and the other circumstances attending it, with
tlie exception of the testator's declarations accompanying the gift ; for
the Court, which has to decide whether the transaction has effected a
partial ademption of the legacy, must know what the transaction was ;
hut the declarations of the testator, accompanying the transactions,
were objected to. Whj^ should those accompanying declarations not be
admissible ? They are of the essence of the transaction, and the truth
of the transaction itself cannot be known to the Court without them.
The rule which would exclude the evidence, if the intention of the

yea satisfaction. — ademption.

parties had been expressed in writing, does not apply. I assume that,
if the intention of the parties, as proved by the evidence, had been in
■writing, it could not be contended, on the part of Mrs. Kirk, to
■whom the legacy ■was given for her separate use absolutely, that a pay-
ment to her husband of the amount of her legacy, at her instance and at
her request, -would not have precluded her from claiming it under her
father's -will ; or, in other words, that the advance made under such cir-
cumstances would not have adeemed the legacy. If that be not so, the
argument must be, that an advance made by a testator to one of his
legatees, under an agreement in writing that the legatee shall accept
the advance in full satisfaction of his legacy, would leave the legatee at
liberty to claim the legacy, notwithstanding the agreement ; and if
such an argument be not admissible, the declarations of the testator
must be admissible in the case I am now supposing, unless there be
some rule of law which hinders a transaction, like that which the defend-
ant relies upon, from being valid, unless it is evidenced by writing.
This, however, cannot be successfull}'' contended for. The evidence
does not touch the will ; it proves only, that a given transaction took
place after the will was made, and proves what that transaction was,
and calls upon the Court to decide, whether the legacy given by the
will is not thereby adeemed. Ademption of the legacy, and not revo-
cation of the will, is the consequence for which the defendant con-
tends— a distinction which is marked by Lord Hardwicke, in the case of

*BoseiueU v. Bennett (3 Atk. 77). The defendant does not

r*399l

L -^ say the will is invoked ; he says, the legatee has received his

legacy by anticipation. In principle, therefore, I cannot see my way to
reject the evidence in question. How, then, does the case stand upon
authority? The cases of Monck v. Lord Monck (1 Ball & B. -298) ;
Rosewell v. Bennett (3 Atk. 77) ; Thelluson v. Woodford (4 Madd.
420) ; Belly. Coleman (5 Madd. 22); Bigglestonv. Grubb (2 Atk. 48);
Hoskins v. Hoskins (Free. Ch. 263) ; Chapman v. Salt (2 Vern. 646) ;
Powell v. Cleaver {% Bro. C. C. 499) ; Grave v. Lord Salisbury (1 Bro.
C. C. 425) ; LJx Parte Dubost (18 Ves. 140) ; Shuddal v. Jekyll (2 Atk.
516), are all authorities in favour of admitting the evidence. In Hall
V. Hill (1 D. & War. 118), tlie Lord Chancellor of Ireland refers, with
marked approbation to the cases of Rosewell v. Bennett^ Biggleston v.
Orubb, and Monck v. Lord llonck, upon this point. I am aware that
an argument may be raised as to how far the admission of the evidence,
in the cases I have cited, or the greater part of them, may be j-eferred
to the principle to which I have before adverted— that of applying it to
a presumption first raised by the Court. Such an argument, however,
will be found, upon examination, not to be sustainable ; for if the law
would in those cases have raised the presumption, the evidence which
was objected to was unnecessary, there being no evidence to counter-
vail the presumption. But, the evidence, though objected to in some

EX PARTE PYE. — CHANCEY'S CASE. ' 769

of the cases, was received, and therefore must have been read, to prove
what the transaction was. And it is remarkable that, in Thelluson v.
Woodford, although the exception to the Master's report raised the
question, whether the evidence was admissible, the eminent counsel
who argued against the ademption barely threw out a question, whether
the evidence was admissible, without arguing against its admissibility ;
and Sir John Leach said, ' This is not a case of implication, but of ex-
press declaration.' Admitting, therefore, in the fullest manner, that
parol evidence is inadmissible to prove that a will or other writ-
ten instrument was intended to have an effect not expressed in it, still,
with the opinion of the Lord Chancellor of Ireland, so recently ex-
pressed, upon the point, and the other authorities I have referred to,
supporting the opinion which I individually entertain, that the evi-
dence is admissible, I shall receive it.

" Tiie subject has been very elaborately considered by Mr. Roper (Tr.
on Leg., Vol. I., p. 341 et seq.). I cannot but think the learned writer
has not sufficiently kept in mind the distinction between ademption
and revocation, nor between the cases in which the intention of the
parties has been *redaced into writing, and those in which the
Court has had to ascertain, by parol evidence only, wh.at the L ^
parties had done. It was said that there was a distinction in this case,
inasmuch as the advance was made, not, as in the cases cited, to the
legatee herself, but to the husband of the legatee. That circumstance
might be material upon the question of implied ademption ; but it can-
not affect the question of admitting or rejecting the evidence to jprove
what the transaction was. In more than one of the cases cited, the
same circumstance occurred." See Twining v. Powell, 2 Coll. 263.

Where, however, there are two written instruments, and from the re-
lationship between the author of the instruments and the party claim-
ing under them (as in the actual or assumed relation of parent and
child), the law raises the presumption that a gift contained in the
second instrument is intended to be in satisfaction of a gift by an in-
strument of earlier date, evidence may be gone into to show that such
presumption is not in accordance with the intention of the author of
the gift : and where evidence is admissible for that purpose, counter
evidence is also admissible. See Debeze v. Mann, 2 Bro. C. C. 165,
519 ; Ellison v. Gookson, 3 Bro. C. C. 61 ; Trimmer v. Bayne, 7 Ves.
508, 615.

But in such cases, it is well observed b}' Sir J. Wigram, Y. C, " The
evidence is not admitted on either side, for the purpose of proving, in
the first instance, with what intent either writing was made, but for the
purpose only of ascertaining whether the presumption which the law
has raised be well or ill founded : " 3 Hare, 5 It. See Palmer \. Neivell,
2iJ Beav. 39.

There is. howevpr. n, dictum of Sir .T. Leach, in the cnse of We.all v.

770 SATISFACTION. — ADEMPTION.

Rice, 2 Russ. & My. 251, 263, which seems inconsistent with the law
upon this subject, as it is at present understood. " The rule of this
Court," said his Honor, " is, as ought to be, that if a father makes a
provision for a child by settlement on marriage, and afterwards makes
a provision for the same child by his will, it is prima facie to be pre-
sumed that he does not mean a double provision ; but this presumption
may be repelled or fortified by intrinsic evidence derived from the na-
ture of the two provisions, or by extrinsic evidence. Where the two
provisions are of the same nature, or there are but slight differences,
the two instruments afford intrinsic evidence against a double pro-
vision. Where the two provisions are of a different nature, the two in-
struments afford intrinsic evidence in favour of a double provision.
But in eitlier case, extrinaic evidence is admissible of the real intention
of the testator. It is not ^possible to define what are to be con.
L J sidered as slight differences between two provisions. Slight
differences are such as, in the opinion of the judge, leave the two pro-
visions substantially of the same nature ; and everj^ judge must decide
that question for himself." In this case the settlement was first and the
will last. And see Lloyd v. Hervey 2 Russ. & My. 310, 316, and Lord
Langdale's remark, in Lord Gengall v. Barnard, 1 Kee. 169. In the
case of Booker v. Allen] 2 Russ. & M3^ STO, where the will was before
the settlement. Sir J. Leach admitted parol evidence to prove that the
testator, who had put himself in loco parentis towards the donee, in-
tended the provision made by tlie settlement to be in lieu of a legacy
given by the will ; and held, that the gift by the settlement was a satis-
faction of the legacy, though the two provisions differ so much from
each other, that they could not be considered substantially the same.

It is, however, submitted that the parol evidence in Booker v. Allen,
ought not to have been admitted, as it was in contradiction to a written
instrument. See Hall v. Hill, C. & L. 120 ; 1 D. & War. 94.

Where a person is considered to have placed himself in loco paren-
tis.] Where a person who has made two gifts to another, in such

manner as, according to the rules laid down in considering the two
classes of cases before discussed, would,, in case he stood towards the
donee in the relation of parent, raise the presumption that the latter
gift was intended to be a satisfaction of the former, the question often
arises, and it is one bj" no means always eas3' of solution, whether the
donor, although not standing to the donee in that relation, has not, by
his conduct, placed himself in it, or, as it is usually termed, put him-
self in loco parentis ; in which case, as before observed, the presumption
will arise equally as in the case of a parent.

In the case of Powys v. Mansfield, 3 My. & Ca. 859,Lord Cottenham
enters most elaborately into this somewhat obscure question — what is
sufficient to put a person in loco parentis ? Sir L. Shadwell, V. C, in
that case (reported 6 Sim. 528), had held, that no person can be deemed

EX PARTE PYE. — CHANCEY'S CASE. 771

to stand in loco parentis to a child whose father is living and who
resides with and is maintained by his father according to his means.
Lord Cottenham, however, reversed the decision of the Vice-Chan-
cellor. "No doubt," observed his Lordship, "the authorities leave in
some obscurity the question as to what is considered as meant by the
expression universally adopted, of one in loco parentis. Lord Eldon,
however, in Ex parte Pye, has given to it a definition which I readily
adopt, *not only because it proceeds from his high authority,
but because it seems to me to embrace all that is necessary to L "'-'
work out and carry into effect the object and the meaning of the rule.
Lord Eldon says, it is a person ' meaning to put himself in loco
parentis; in the situation of the person described as the lawful father
of the child.' But this definition must, I conceive, be considered as
applicable to those parental offices and duties to which the subject in
question has reference, namely, to the office and duty of the parent to
make provision for the child. The offices and duties of a parent are
infinitely various, some having no connection whatever with making a
provision for a child : and it would be most illogical, from the mere
exercise of any such offices or duties by one not the father, to infer any
intention in such person to assume also the duty of providing for the
child. The relative situation of the friend and of the father may make
this unnecessary, and the other benefits most essential.

"Sir William Grant's definition (see 19 Ves. 412) is, ' A i^erson
assuming the parental character, or discharging parental duties,' which
may not seem to differ much from Lord Eldon's ; but it wants that
which, to my mind, constitutes the principal value of Lord Eldon's
definition, namely, the referring to the intention rather than to the act
of the party. The Vice-Chancellor says (6 Sim. 556), it must be a
person who has so acted towards the child as that he has thereby
imposed upon himself a moral obligation to provide for it ; and that
the designation will not hold, where the child has a father with whom
it resides, and by whom it is maintained. This seems to infer that the
locus parentis assumed by the stranger must have reference to the
pecuniary wants of the child, and that Lord Eldon's definition is to be
so understood ; and so far I agree with it ; but I think the other cir-
cumstances required are not necessary to work out the principle of the
rule or to effectuate its object. The rule, both as applied to a father,
and to one in loco parentis, is founded upon tlie presumed intention.
A father is supposed to intend to do what he is in duty bound to do,
namely, to provide for his child according to his means. So, one who
has assumed that part of the office of a father, is supposed to intend to
do what he has assumed to himself the office of doing. If the assump-
tion of the character be established, the same inference and presump-
tion must follow. The having so acted towards a child as to raise a
moral obligation to provide for it, affords a strong inference in favour

772 SATISFACTION. — ADEMPTION.

of the fact of the assumption of 'the character: and the child having a

father with whom it resides, and by whom it is maintained affords

some inference against it ; but neither are conclusive.

*" If, indeed, the Vice Chancellor's definition were to be
r*4031
'- -' adopted it would still be to be considered, whether in this case,

Sir John Harrington had not subjected himself to amoral obligation to
provide for his brother's children, and whether sucli children can be
said to have been maintained by their fathei*. A rich unmarried uncle,
taking under his protection the family of a brother, who has not tiie
means of adequately providing for them, and furnishing, through their
fatlier, t;|0 the children, the means of their maintenance and education,
may surely be said to intend-to put himself for the purpose in question,
in loco parentis to the children, although they never leave their father's
roof. An uncle so taking such a family under his care, will have all
the feelings, intentions, and objects, as to providing for the children,
which would influence him if they were orphans. For the purpose in
question, namelj' providing for them, the existence of the father can
make no difference. If, then, it shall appear, from an examination of
the evidence, that Sir John Barrington did afford to his brother the
means of maintaining, educating, and bringing up his children accord-
ing to their condition of life ; and that the father had no means of his
own at all adequate to that purpose ; that this assistance was regular
and systematic, and not confined to casual presents, the repetition of
whicli could not be relied upon ; that he held out to his brother and
his familj', that they were to look to him for their future provision ; it
will surely follow, if that were material, that Sir John Barrington had
so acted towards the children as to impose upon himself a moral obli-
gation to provide for them, and that the children were, in fact, main-
tained by him, and not by their father. But, it has been said that Sir
John Barrington would not have been guilty of any breach of moral
dut}', if he had permitted the property to descend to his brother. Un-
doubtedly he would not, because that would have been a very rational
mode of providing for the children ; but if he had reason to suppose
that his brother would act so unnatura.lly as to leave the property away
from his children. Sir John Barrington would have been guilty of a
breach of moral daty towards the children in leaving the property ab-
solutely to their father. I should, therefore, feel great diflSculty in
coming to a conclusion that Sir John Barrington had not placed himself
in loco parentis to these children, even if I thought everything necessary
for that purpose, which the Vice-Chancellor has thought to be so.
" Adopting, however, as I do, the definition of Lord Eldon, I proceed

^ to consider whether Sir John Barrington did mean to put *him-
r*404l
L -^ self in loco parentis to the children, so far as related to their

future provision. Parol evidence has been offered upon two points :

first, to prove the affirmative of this proposition : secondlv. to prove.

EX PARTE PTE. — CUANCEY'S CASE. 773

by declarations and acts of Sir John Barrington, that he intended the
provision made by the settlement should be in substitution of that
made by the will. That such evidence is admissible for the first of these
purposes, appears to me necessarily to flow from the rule of presump-
tion. If the acts of a party standing in loco parentis raise in equity a
presumption which could not arise from the same acts of another per-
son not standing in that situation, evidence must be admissible to prove
or disprove the facts upon which the presumption is to depend ; namelj',
whether, in the language of Lord Eldon, he had meant to put himself
in loco parentis ; and as the fact to be tried is the intention of the
party, his declarations, as well as his acts, must be admissible for that
purpose ; and if the evidence established the fact that Sir John Bar-
rington did mean to place himself in loco parentis, it will not be material
to consider, whether his declarations of intention as to the particular
provision in question be admissible per se, because the presumption
against the double portions, which in that case will arise, being attempted
to be rebutted by parol testimony, maybe supported by evidence of the
same kind."

From Lord Cottenham's judgment, therefore, we may conclude, that
the question, whether a person has or not put himself in loco parentis,
must be decided with reference to his meaning to put himself in that
position, by assuming the office and duty of the parent to make promn-
ion for the child, and that parol evidence is admissible to prove that a
person means to put himself in loco parentis, and upon proof of his
■meaning to do so, parol evidence of his acts and declarations is admis-
sible also to rebut and then to strengthen the presumption of satisfac-
tion.

Any relation, or even a mere stranger in no way related to another
person, may be held to have meant to put himself in loco parentis
towards him ; but mere relationship, however near, is not of itself
sufficient to show that a person means to put himself in loco parentis
towards another. Thus, neither a great uncle, uncle, grandfather, or
putative father, is from his mere relationship, to be considered as in
loco parentis, unless it can be shown that he meant to put himself in
loco parentis with reference to the parent's office and duty of making a
provision for his child; Shudal v. Jekyll, 2 Atk. 516, 518; Powel v.
Gleaoer, 2 Bro. C. C. 517, 518 ; Roome v. Boome, 3 Atk. 183 ; Ferry
V. Whitehead, 6 Ves. 547 ; Grave v. Salisbury, I Bro. C. C. 425 ; Ullis
*v. miis, 1 S. & L. 1 ; Twining v. Powell, 2 Coll. 262 ; and Lyd- r^^Qc-i
don V. Ellison, 19 Beav. 565, 572. ^

When satisfaction or ademption will take place of a legacy given by
a person not being in the natural or assumed relation of parent towards
the legatee.] — Where a person, not being in the natural or assumed re-
lation of parent towards the legatee, gives a legacy for a particular
purpose, and afterwards advances money for the same purpose, a pre-

774 SATISFACTION. — ADEMPTION.

sumption arises that it was intended as, and it will accordingly be held
to be, an ademption of it. " Suppose," asked Lord Manners, " A. be-
queathed to his brother 50001. to buy a house in Merrion-square ; and
that afterwards A. bought one, which he gave to his brother, are
there two houses to be bought ? " Monck v. Monde, 1 Ball & B. 303 ;
see also Rosewell v. Bennet, 3 Atk. Y7, and the observations of Lord
Cottenham, 2 My. & Cr. 311. From the cases of Deheze v. Mann, 2
Bro. C. C. 166, 519, 521, and Trimmer v. Bayne, T Ves. 516, it ap-
pears that parol evidence is admissible to rebut or strengthen the pre-
sumption.

Where, however, the purpose for which a legacy is given by such
person does not correspond with the purpose for which the advance-
ment is made, the legacy, as is laid down by Lord Eldon, in Ex; parte
Pi/e, will not be adeemed: Deheze v. Mann, 2 Bro. C. C. 165,519;
Eohinson v. Whitley, 9 Ves. 517 ; Soome v. Roome, 3 Atk. 181 ; nor
where the legacy and advancement are given upon different contigen-
cies: Spinks v. Robins, 2 Atk. 491.

In the recent case of Pankhurst v. Howell, 6 L. R. Ch. App. 136, a
testator by his will, dated the llth of December, 1862, gave to his wife
a legacy of 200Z., to be paid within ten days after his decease. On the
28th of November, 1861, during his last illness, he, at the request of
his wife, who did not know the contents of his will, gave her a cheque
for 200Z., that she might have a sum of money which she could control
immediately on his death without the interference of the executors.
She had the cheque cashed on the same day, and gave the proceeds to
a friend to keep for her. The testator died on the 8th of December,
1861. It was held by Lord Justice James, affirming the decision of
Lord Romilly, M. E., that the legacy of 200Z. was not adeemed or sat-
isfied by the gift of the 200Z. " The rule," said his Lordship, " is, that
where the testator stands neither in the natural nor assumed relation
of a parent to the legatee, the legacy will be considered as a bount}'-,
and will not be adeemed by a subsequent advancement, unless the
legacy is given for a particular purpose, and the testator advances
money for the same purpose, or unless the intention otherwise legally
appear of making the advancement with a view to *ademp-

L -^ tion Here the legacy does not appear to me to have

been given for a particular purpose within the meaning of the rule."

3rd. With respect to the satisfaction of a debt by a legacy,
the general rule, as laid down in Talbot v. Duke of Shrewsbury, is,
" that if one being indebted to another in a sum of money, does by his
will give him a sum of money as great as, or greater than, the debt,
without taking any notice at all of the debt, this shall, nevertheless,
be in satisfaction of the debt, so that he shall not have both the debt
and the legacy." See also Brown v. Dawson, Free. Oh. 240 ; Fowler
V. Fowler, 3 P. Wms. 353 ; Richardson v. Greese, 3 Atk. 68 ; Gaynon

EX PARTE PYE. — CHANCEY's CASE. 775

V. Wood, 1 Dick. 331 ; Bensusan v. Ne.hemias, 4 De Gex & Sm. 381 ;
ShadboU v. Vanderplank, 29 Beav. 405.

This rule or presumption is founded upon the maxim Debitor nan
presumiture donare. It has also been urged, in support of this pre-
sumed satisfaction, that a man ought to be just before he is bountiful ;
but this observation has been well answered by Lord Chancellor King
in Ghancey^s Case, that, when a man had left such an estate and fund
for his debts and legacies, as that he might thereout be both just and
bountiful, he did not see but it would be as reasonable that the whole
legacy should take effect as a legacy, and that the debt should be paid
likewise : Fowler v. Fowler, 3 P. Wms. 354.

The rule as to the presumption of the satisfaction of a debt by a
legacy is founded upon reasoning alike artificial and unsatisfactory,
and it has consequently met with the censure of the most eminent
judges, who, although they would not break the rule, have at the same
time said they would not go one jot fui-ther, and have always endeav-
oured to lay hold of trifling circumstances in order to take cases out of
it: Lady Thynne v. Farl of Glengall, 2 K. L. Ca. 153; Richardson
V. Greese, 3 Atk. 65.

There is, in fact, in this class of cases a leaning against, a.s in the two
former classes of cases a leaning in /auoitr of, the presumption of satis-
faction. Thus, where the legacy is of less amount than the debt, the
presumption is, that it was not intended to be given in lieu of it ; it
will, therefore, not be considered a satisfaction, even pro tanto, as in
the two former classes of cases of satisfaction : Cranmer^s case, 2 Salk.
508 ; Atkinson v. Webb, 2 Vern. 478 ; Eastwood v. Vinke, 2 P. Wms
614, eiY ; Minuet v. Sarazine, Mos. 295 ; Graham v. Graham 1 Ves.
263. A legacy, however, by a debtor to a creditor has been held to
be pro tanto a discharge of debt where it appeared that a testatrix had
made a proposal to that effect *to her creditor, and that he had
not objected to the arrangement: Hammond v. Smith, 33 Bea.v. '- -^
452.

So, also, the presumption of satisfaction being intended, will be re-
pelled where the legacy, though in amount equal to or greater than the
debt, is payable at diflTerent times, so as not to be equally advantageous
to the. legatee as the payment of the debt : (Atkinson v. Webb, Prec.
Ch. 236 ; Nicholls v. Judson, 2 Atk. 300 ; Hales v. Darell, 3 Beav. 324,
332; Charlton v. West,3() Beav. 124, 127), and perhaps even where
the legacy is payable to different trustees, Pinchin v. Simms, 30 Beav.
119, 120 ; and see Mathews v. Mathews, 2 Ves. 635 ; where Sir Thomas
Clarke, M. R., observes, that the Court dislikes the rule so much, as to
lay hold of any minute circumstance to take the case out of it ; as, that
the thing given in satisfaction should be as certain as to the duration
and commencement of it as the debt, otherwise, though a sum ten times
larger be given by the will, it would not be held a satisfaction. " I

776 SATISFACTION. — ADEMPTION.

*

myself," said his Honor," remember a case, before the Lord Chancellor
(Hardwicke), where an old ladj% indebted to a servant for wages, by
will gave ten times as much as she owed, or was likely to owe ; yet be-
cause made payable in a month after lier own death, so that the
servant might not outlive the month, although great odds the other
way, the Court laid hold of that." See also, Clarke v. Sewell, 3 Atk.
96 ; Haynes v. Mico^ 1 Bro. C. C. 129 ; Jeacock v. Falkener, 1 Bro. C
C. 295 ; 8. G. I Cox, 3Y ; Adams v. Lavender, 1 M'Cl. & Y., Exeh.
41 ; Hales v. Darell, 3 Beav. 324, and cases there cited.

The presumption will also be repelled where the legacy and debt are
of a different nature, either with reference to the subjects themselves,
or with respect to the interest given: see Eastwood y.- Vinke, 2 P.
Wms. 614, where it was held, tiiat as monej' and lands were things of
a different nature, the one should not be taken in satisfaction of the
other. See also Forsight v. Grant, 1 Ves. jun. 298 ; Bichardson v.
JElphinstone, 2 Ves. jun. 463 ; Byde v. Byde, 1 Cox, 49 ; Bartlett v.
Gillard, 3 Russ. 149; Fourdrin v. Gowdey, 3 My. & K. 409 ; Howe v.
Howe, 2 De G. & Sm. 294 ; Edmunds v. Low, 3 K. & J. 318. So, also,
where the interest given is of a different nature or not co-extensive with
the debt. Thus, a gift of a residue of real and personal estate for life
was held not to be a satisfaction for a sum of money to be laid out in
lands and conveyed to a person in fee : Alleyn v. Alleyn, 2 Ves. 3Y.

So, also, where there is a particular motive assigned for the gift, it

will not be presumed to *be a satisfaction for a debt: Mathews

\*^^^\ V. Mathews, 2 Ves. 635 ; Charlton v. West, 30 Beav. 124, 12Y.

The presumption will not be raised where the debt of the testator
was contracted subsequently to the making of the will ; for he could
have had no intention of making any satisfaction for that which was
n')t in existence: Cranmer's case, 2 Salk. 508; Thomas v. Bennet, 2
P. Wms. 343 ; Plunkett v. Lewis, 3 Hare, 330.

Where the legacy is contingent or uncertain, whether it be given
upon the happening of a contingency, as in Crompton v. Sale, 2 P.
AVms. 553 ; or is in Itself of an uncertain or fluctuating nature, as a gift
of tlie whole or a part of the testator's residuary estate, even though it
should prove greater in amount than the debt, it will not be held to be
a satisfaction of it: Deve.^'e v. Pontet, 1 Cox, 188; Barret v. Beckford
1 Ves. 519; Lady Thynne v. The Earl of Glengall, 2 H. L Ca. 154.

The result will be the same, if the debt itself is contingent or un-
certain, as a debt upon an open and running account,— for it might not
be known to the testator, whether he owed any money to the legatee or
not; and therefore, it could not reasonably be held that he intended a
legacy to be in satisfaction of a debt which he did not know tliat he
owed any more than a legacy could be held a satisfaction of a debt con-
tracted after tiie maliing of the will ; Rawlins v. Powell, 1 P. Wms.
291 ; and in Carr v. Eastabrooke, 3 Ves. 561, Lord Alvanley, M. R.

EX PARTE PYE. — CHANCEY'S CASE. 777

held that a legacy was not a satisfaction for a negotiable bill of ex-
change, on the ground that it was not to be presumed that the testator
could know whether the legatee had not, the moment she received the
bill, indorsed it over to another person, in which case no debt would be
due to the legatee.

But the presumption that a debt is intended to be satisfied by a
legacy will not be rebutted by the circumstance that the debt is liable
to variation in amount. Where for instance, the debt was in respect of
deposits made with the testator, the creditor drawing on him from time
to time in respect of sucli deposits; Edmunds v. Low^ 3 K. & J. 318.
So in Smith v. Smith, 3 Giff. 263, where a testator who had advanced
moneys to his son, and paid large sums on his account, bequeathed to
him a legacy without making mention of the debt, it was held by Sir
Jolm Stewart, V. C, that the loan and unascertained balance must be
set off against the legacy.

Upon the same principle it was also held in the same case that the
assignees of a firm indebted to the testator were not entitled to receive
a legacy bequeathed by the testator to a member of the firm. lb. 270.

*Where a debt by the marriage of the creditor becomes pava-
hie to her husband, the presumption of satisfaction by a legacy '- -^
to a larger amount having been bequeathed to her by the debtor, will
not be rebutted as being intended for a person to whom the debt was
not due, because the legacy, subject to the wife's equity to a settlement
would be payable to the husband. See Edmunds v. Low, 3 K. & J-
318. The remark, however, of his Honor that as the legacy in that
case was only lOOZ. the wife had no equity to a settlement, is not in
accordance with the authorities. See ante, vol. 1, p. 4T0.

Where, as in Chancey's Case, selected as a leading authority upon
tliis subject, there is an express direction in the will for payment of
debts and legacies, the Court will infer that it was the intention of the
testator that both the debt and the legacy should be paid to the credi-
tor; Richardson v. Greese, 3 Atk. 65; Field v. Mostin, Dick. 543 ;
Hales V. Darell, 3 Beav. 324, 332 ; Jeff cries v. Michell, 20 Beav. 15 ;
Hassell v. Hawkins, 4 Drew. 468. See also Lord Chichester v. Coven-
try, 2 L. R. Ho. Lo. 71.

But a. direction to pay debts alone has been held by Sir W. Page
Wood, V. C, not to be sufficient to rebut the presumption of satisfac-
tion {Edmunds v. Low, 3 K. & J. 318, 321). Sir J. Lewis Knight
Bruce, V. C, has held that it may be looked upon as an ingredient
coupled with other circumstances to have that effect : Rowe v. Eoioe, 2
De Gr. & Sm. 297, 298. Other judges, however, have held that a charge
of debts standing alone, is of equal force on the question of rebutting
the presumption of satisfaction as if it were accompanied by a charge
of legacies : Hales v. Darell, 3 Beav. 324 ; Jefferies v. Michfll, 20
Beav. 15 ; Cole v. Willard, 25 Beav. 568, 573 ; Pinchin v. Sims, 30

778 SATISFACTION. — ADEMPTION.

Beav. 119; Churlton v. West^ Ih. 124. See also Lord Chichester v.
Coventry, 2 L. R. Ho. Lo. Tl, and the remarks thereon in Dawson v.
Daivson, 4 L. R. Eq. 504.

A question has been raised whether a testator in a charge of " debts,"
includes his liabilities on a bond or covenant to pay a sum of money
after his decease. In the ease of Wathen v. Smith, 4 Madd. 325, a
husband covenanted on marriage to pay to his wife lOOOZ. six months
after his death. By his will he gave her lOOOL payable three months
after his decease, and after giving certain specific legacies, he directed
his residue to be applied in payment of all his just debts and legacies.
Sir John Leach V. C, held that the legacy must be considered as a
performance of the covenant. " TJnd'oubtedly," observed his Honor,
" these are questions of intention ; but the intention to ^perform
L J the covenant is to be presumed, unless there be special circum-
stances to repel that presumption. In Chancey's Case, it was held
that the direction in the will, that the testator's just debts should be
paid, repelled the presumption that a legacy to the creditor was inten-
ded as a satisfaction of the debt. I think Chancey^s Case does not
apply here ; and that this provision for the wife by the settlement is
not a debt within the sense in which the testator must be understood
to use the word " debts " in his will.

In the case, however, of Cole v. Willard, 25 Beav. 568, the authority
of Wathen v. Smith, is impugned. There the testator, on his marriage,
covenanted that his representatives should, within three months after
his decease, pay 2000L to trustees, to be held for his wife for life. By
his will, after directing all his debts to be paid, he gave his widow an
annuity of 200L a 3'ear payable quarterly, and other benefits. It was
held by Sir John Romilly, M. R., that the provision for the wife under
the settlement, was not satisfied by the provision made for her by the
will. " I do not," said his Honor, " concur with Sir John Leach in his
observation in Wathen v. Smith, that the testator must not be under-
stood to include, under the word ' debt,' his liability on bond or cove-
nant made on his marriage, although to be discharged after his
decease." His Honor, however, decided the case upon the ground that
' the two provisions were not identical.

Where a parent gives a legacy to a child to whom he is indebted.'] —
It appears that a legacy given by the will of a parent to a child, is not
upon any different footing from that of a legacy by any other person as
a satisfaction of a debt not being a portion ; therefore, where a father
owes a mere debt to a child, a subsequent legacy will not, in the absence
of intention, express or irtiplied, be considered as a satisfaction of the
debt, unless it be either equal to, or greater than, the debt in amount,
and the presumption of satisfaction be not repelled by any of those
slight circumstances which will take a bequest of such amount to a

EX PARTE PTE. — CHANCEY'S CASE. 77!^

stranger out of the general rule : Tolson v. Collins, 4 Ves. 483 ; Stovken
V. Stocken, 4 Sim. 152.

The same remarks apply to a legacy to a wife to whom the husband
is indebted : Fowler v. Foivler, 3 P. Wms. 353 ; Cole v. Willard, 25
Beav. 568, overruling Wathen v. Smith, 4 Madd. 325.

WTiere a parent in his lifetime advances — a child to whom he is
indebted.'] — Where, however, a parent is indebted to a child, and in his
lifetime makes an *advancement to the child upon marriage, or
some other occasion, of a portion equal to or exceeding the debt, ^ -'
it will prima facie be considered a satisfaction ; and it is immaterial
whether the portion be given in consideration of natural love or affec-
tion, or whether property be settled by the other party in consideration
of it, or whether, in the case of a portion to a daughter, the husband
be ignorant of the debt. See Wood v. Briant, 2 Atk. 521 ; Seed v.
Bradford, 1 Ves. 500 ; Chave v. Farrant, 18 Yes. 8.

In Plunkett v. Lewis, 3 Hare, 316, these authorities were reviewed
and recognised by Sir J. Wigram, V. C. There, a trust fund to which
a father was entitled for life, and his son and daughter in remainder,
was sold, and the proceeds, amo"unting to 11,445?., were received by the
father. Subsequently, on the marriage of the daughter, the father set-
tled 16,000Z. in ready money, and 20,000Z. payable sis months after his
decease, besides lands. It was held by Sir James Wigram, V. C, that the
claim of the daughter against the father, in respect of her share of the
proceeds of the trust fund, must be presumed to be satisfied by the set-
tlement. " In this case," said his Honor, " the existence of a debt of
ascertained amount, and the advance by the father to an amount far ex-
ceeding the amount of the debt, ani that on bshalf of the daughter, in
a transaction to which she was a party, all concur. But it was said,
first, that in the settlement by the father, distinct considerations
(natural love and affection) were expressed, and that the expression of
those considerations excluded the satisfaction ; secondly, that the
entire settlement was a purchase from the husband, and that, as he gave
value for the lady's settled fortune, it would not be presumed that the
whole intention of the parties was not expressed in the settlement ; and,
thirdly, that the husband had no notice of his wife's rights in the trust
stock, and therefore could not be barred. In Wood v. Briant (2 Atk. 521),
the father was administrator durante minore setate of an estate under
which his daughter was interested to an extent not fexceeding 500L
On her marriage, the father agreed to give his daughter 800?. as a por-
tion, and in consideration of natural love and affection ; and in that case,
as in this, the argument was founded, inter alia, upon the expression of
consideration. Lord Hardwicke went fully into the law upon the broad
principle of satisfaction; and, independently of some 'delay, to which
he adverted, held it a satisfaction. He said, ' There are very few cases
where a father will not be presumed to have paid the debt he owes to a

780 SATISFACTION. — ADEMPTION.

daughter, when, in his lifetime, he gives her in marriage *a
L -^ greater sum than he owed her ; for it is very unnatural to sup-
pose that he would choose to leave himself a debtor to her, and subject
to an account.' And he expressed his disapprobation of Chidley v. Lee
(Prec. CI). 228), in which Sir J. Trevor went upon the ground that the
husband was ignorant of his wife's claim. The case of Seed v. Brad-
ford (I Ves. 500), contains a very clear expression of Sir John Strange's
opinion upon the abstract point, although he fortified his opinion upon
that point by the acquiescence to which he referred. In that case, also,
the husband appears not to have known of his wife's right until after
the marriage. In Ghave v. Farrant (18 Ves. 8), the father, owing 150L
to his children, as executor of their grandfather, covenanted in their
settlements to pay lOOOZ. each for the portions of his daughters. It
did not appear that the husbands knew of the debt. Sir W. Grant was
clear upon the point.

" The above eases, which bring the law down from Lord Hardwicke
to the time of Sir W. Grant, have, I believe, alwjiys been considered as
showing the law of the Court ; they clearly decide, that neither the ex-
pression of natural love and affection as the reason of the gift, nor the
ignorance of the husband of the wife's rights, will necessarily prevent
the application of the doctrine of satisfaction. And if the acts and de-
clarations of the parties, as proved in evidence, are to be taken into
account in this case (as in some of the cases they have been), it is im-
possible to say they do not, in the clearest manner, confirm the conclu-
sion to which, without those acts and declarations, I should come.

" I must not, however, be understood as intimating an opinion that
the expression of natural love and affection, as the consideration of a
portion given by a parent on the marriage of a child, may not, in any
case, be entitled to weight. In the case of a portion being the exact
amount of the parent's debt to his child, perhaps it might be material,
at least in conjunction with other circumstances ; for it might be said,
that natural love and affection could not be the motive for discharging
a legal or equitable obligation ; but that reasoning can have little
weight where the father, as in this case, gives a portion so far exceed-
ing his liability. There is here ample to satisfy the natural love and
affection, without excluding the presumption that the debt was in-
tended to be satisfied also.

" With respect to the other point relied upon by the plaintiff, that
the settlement must be construed -as a purchase by the husband, I can-
not comprehend how that bears upon the question. It is the advance
by the father, which, by presumption of law, satisfies his liabilities ;
and if that ^advance simpliciter would discharge him, I cannot
L J understand the argument which supposes that the advance will
lose its operation in the father's favour, because he obtains for the
daughter the additional benefit of a settlement by her husband. I

EX PARTE PYE. — CHANCET'S CASE. 781

sliould have thought the argument in favour of satisfaction rather a
fortiori from such circumstances. No case was produced sanctioning
such an argument ; and I think the observations of the Vice Chancellor,
5 Sim. 314, 315, point strongly the other way. He says, that, where
the husband, in consideration of his wife's portion, settles his own
estate, that is the same thing quoad satisfaction as if her fortune were
settled." And his Honor, after commenting upon Wliarton v. Lord
Durham, 5 Sim. 29Y, 3 My. & K. 4T2, 10 Bligh, N. S. 526, 3 C. & F.
146, adds, " It is the absence of expression, and that only, which raises
the question in anj^ of the cases. I consider the presumption of law to
be, that the settlement would satisfy the debt, and that presumption
being in this case unopposed by any evidence whatever, becomes con-
clusive." See also Hardingham v. Thomas^, 2 Drew. 353.

In the same case, his Honor held, advances made by the father, to
Ms sgn simpliciter, not to be a purchase or satisfaction of the claim of
the son to the proceeds of a trust fund belonging to the son, possessed
by the father after such advances. See 3 Hare, 330.

The presumption of satisfaction can only arise where the person
making tlie payment is himself the party bound to pay, or is the owner
of tlie estate charged with the payment : Samuel v. Ward, 22 Beav.
347 ; and see Douglas v. Willes, 1 Hare, 328.

A debt due to a man will not be satisfied by a legacy to his wife :
Hall V. Hill, 1 D. & War. 94, 1 C. & L. 120. And a debt due under a
covenant to the trustees of a settlement will not be satisfied by a leg-
_ acy to the cestui que trusts : Smith v. Smith, 3 Giff. 263.

Extrinsic Evidence.] — Where the presumption arises merely from
the fact of a legacy to a creditor, being equal to or greater than the
amount -of the debt, it would appear, upon principle, that evidence
ought to be admitted to rebut the presumption ; and if so, evidence
may, on the other hand, be admitted to fortify it : Plunkett v. Lewis,
8 Hare, 361. However, in Fowler v. Fowler, 3 P. Wms. 353, Lord
Talbot refused to admit parol evidence ; and this case appears to be ap-
proved of by Sir Edward Sugden, in Hall v. Hill. See 1 D. & W. 121, 1
C. & L. 147. It is, however, submitted, that the evidence ought to have
been admitted in that case, since, as the case is reported, it would
merely have been admitted for the purpose of *rebutting a
presumption of law, not to contradict the intention of the testa- L J
tor as appearing by the will. If, indeed, Lord Talbot considered that
the intention of the testator appeared on the face of the will, the evi-
dence was rightly rejected.

In Wallace v. Pomfret, 11 Yes. 542, Sir Samuel Romilly, rightly ad-
mitting that evidence might be received to rebut the presumption of
the satisfaction of a debt by a legacy, where there was no expression in
the will showing the intention, rightly argued also, that there was no
instance of admitting evidence where the testator has shown his inten-

782

SATISFACTION. — ADEMPTION.

tion hj words ; Lord Eldon, nevertheless, admitted evidence to beat
down, not a mere presumption of law, " but," as he says, " the fair in-
ference from the written context." This decision, however, is contrary
to principle, and has been strongly disapproved of in Mall v. Hill, 1 D.
& War. 122, 1 C. & L. 147 ; in which case, as the presumption of satis-
faction did not arise on the face of the will. Lord Chancellor Sugden
refused to admit parol evidence of the testator's declaration, showing
that he intended the legacy as a satisfaction.

In considering the subject of
these notes, it is material to dis-
tinguish between the revocation,
the ademption, and the satisfaction
of a bequest. Revocation is a
change of purpose authenticated
as the law requires — ademption,
the prevention of the purpose ex-
pressed in the will — satisfaction,
the substitution of a gift with the
legatee's assent. A will may be
at once revoked, adeemed and
satisfied, as, where stocks which
have been specifically bequeathed
are transferred to the legatee and
accepted by him ; see 2 American
Leading Cases, 534, 5 ed. If the
transfer were made to a third per-
son the bequest would be adeemed
and revoked, but not satisfied.
The conveyance of other stocks
to the legatee in lieu of the benefit
conferred by the will might oper-
ate as satisfaction.

Where one does that in per-
son which he has enjoined in his
will, the purpose of the mandate
is accomplished, and no obliga-
tion devolves on the executors.
If a testator were to direct that
his assets should be taken to build
a hospital or found a college in a
particular place, or according to a
certain plan, and afterwards exe-

cuted the design in his lifetime,
it would be futile for the execu-
tors to endeavor to repeat what
had been already performed ; Monok
V. Monck, 1 Ball & Beatty, 298,
303, ante '7'74. The principleis the
same whether the bequest is made
to the executors in trust for the
beneficiary, or directly to the lat-
ter, if the way in which the money
is to be employed is designated in
the will, and carried out by the
testator during his life ; Monck
V. Monck. " Where the will ex-
presses the jpurpose for which a
legacy is given, as to enable the
legatee to purchase a housfe or fur-
niture, or to put him out as an
apprentice, and the testator after-
wards in his lifetime furnishes him
with money for the same purpose,
this is an ademption ;" Langdon
V. Aator's Ex''ors, New York, 36 ;
Hine v. Hine. 39 Barb, 50Y, or as
the rule is stated in Sims v. Sims,
2 Stockton Ch. 158 ; " if one who
has given a legacy in his will for
a particular purpose, afterwards
executes that purpose himself in
his lifetime, he is presumed to
have intended to cancel the legacy,
which is consequently held to be
adeemed."

In Williams' Appeal, 23 P. F.

EX PARTE PTE. — CHANCBT S CASE,

783

Smith, 249, the testator bequeathed
the residue of his estate to his
executor, in trust to purchase a lot
of ground and erect thereon a build-
ing for the use of the Philadelphia
Library Company, and afterwards,
shortly before his death, purchased
a lot, and directed his executors
to use it as the site of the build-
ing. It was held that the execu-
tors were thereby exonerated from
purchasing a lot as prescribed in
the will. The court did not ad-
vert to the doctrine of ademption,
but it , may be thought that the
case would have stood as well on
that ground, as on the reasons ac-
tually assigned in delivering judg-
ment; see vol. 1, 601.

The principle is nearly if not,
quite the same, where a watch or
other chattel which has been spe-
cifically bequeathed, is given by
the testator to the legatee. Under
these circumstances the legacj' is
at once adeemed and satisfied —
adeemed because the property is
placed beyond the reach of the
will, and satisfied because the
legatee receives the benefit, al-
though in a somewhat different
way ; see Jones v. Mason^ 5 Ran-
dolph, 517 ; Bohertis v. Weather-
ford, 10 Alabama, 72.

It is not easy to draw the line
between such a case, and that
where a chattel of a certain
kind is bequeathed, and the testa-
tor subsequently procures a chat-
tel of that kind and delivers it to-
the legatee. Under these circum-
stances it may fairly be inferred
that the testator was his own exe-
cutor, and did not mean that those

who came after him shoul'd repeat
■what he had already done.

In cases of this description, the
act done by the testator is mani-
festly a fulfilment of the purpose
indicated in his will, and satisfac-
tion is a necessarj' inference. But
this cannot be said where one who
has made a pecuniary bequest, or
other bequest of quantity, bestows
the same or a greater amount, be-
cause a present gift of money is
not inconsistent with an intention
to make a further gift after death,
and it may well be that the testa-
tor intended a double benefaction.
Hence such a legacy will not be
adeemed by the payment of a like
amount during the testator's life,
unless the purpose of both gifts is
the same, or unless the gift is re-
ceived in payment of the bequest,
which will not be presumed with-
out evidence appearing in the will
or dehors ; see Pankhurst v.
Howell, 6 L. R. Ch. Appeals, 136.

Such evidence maj"- be direct or
presumptive. It is direct where it
appears from the testator's oral or
written declarations, that the gift
or advancement was intended as a
payment of the legacy ;' see Bich-
arda v. Humphreys, 15 Pick. 135 ;
Kirk V. Eddowes, 3 Hare, 509, ante
768, or to fulfil the object for which
that was bequeathed. It is pre-
sumptive where tliis is inferred
from the existence of a parental ob-
ligation to provide suitably for the
legatee, which makes it reasonable
to infer that the bequest was an
adequate jjerformance of the duty,
due regard being had to the
father's means and the needs of

784

SATISFACTION.-

ADEMPTION.

the child, and consequentlj'^ that
it was adeemed whollj- or pro
tanto by the subsequent advance.

Ademption as between parent

AND CHILD There is accordingly,

a numerous class of cases where the
inference that the purpose of a
payment or advance is identical
with that of an anterior bequest, is
drawn, not from the testator's acts
or declarations, nor from the lan-
guage of the will, but from the
pre-existence of an obligation,
which both gifts conduce to fnlfll.
Such indeed is the ground on
which the doctrine is most fre-
quently applied, if not always,
with the greatest reason. If for
instance, a debtor were to bequeath
to his creditor a sum equalling in
amount of the debt, and after-
wards paid him a like sum, it
would be reasonable to presume,
that the legacy was given in con-
sideration of the debt, and that
the payment satisfied both. So
a father is under an obligation to
maintain his offspring, and may
be supposed to make his will in
view of what that duty requires ;
and if he, after executing a testa-
mentary provision for a child,
makes an advance to the same
child of a like kind, the inference
is that the legatee has received the
amount of the bequest by antici-
pation, and has no claim on the
executors ; Timberlake v. Par-
risJi^s JUxor's, 5 Dana, 346 ; Gill's
Eatate^ 1 Parson's Eq. 139 ; Lang-
don V. Astor's Uxor's, 3 Duer ; 16
New York, 9.

The doctrine may be found, in
the following extract from the
judgment of the Court of Appeals

in the case last cited. " General
legacies may be adeemed by ad-
vancements made by the testator
in his lifetime, and the question
whether a particular advancement
should or should not be an ademp-
tion, or in satisfaction of what
the testator had bequeathed to the
person so advanced, is a question
of fact to be determined only by
reference to the intention of the
donor (1 Ro2xr on Legacies, 365).
The soundness of this position
will be apparent from a reference
to certain well settled doctrines in
the English courts of equity. For
instance, when a parent, or other
person i'?? loco parentis, bequeaths
a legacy to a child or grandchild,
^and afterwards, in his lifetime,
gives a portion, or makes a pro-
vision for the same child or grand-
child, without expressing it to be
in lieu of the legacy, it will, in
general, be deemed a satisfaction
or ademption of the legacy. This
is upon the ground that the legacy
is considered a portion, and if the
testator afterwards advances the
same sum upon the child's mar-
riage, or any other occasion, he
does it to accomplish his original
object in giving a portion. Under
such circumstances, it is held to
be intended by the testator as a
satisfaction, and not a double por-
tion {Story's Eq. Jur., §§ 1111,
1112). The relationship between
the testator and the legatee creates
a presumption of fact, that the ad-
vancement was in the nature of
payment, and was so intended
{Powell V. Cleaver, 1789, 2
Brown's Ch. 499.) In this case,
Lord Thurlow said : " With re-

EX PAKTE PYE. — CHANCEYS CASE.

785

speet to the question of ademp-
tion, the case of parent and child
is a presumption of evidence only,
and net a presumption of law."
The case before him was, that of a
legacy to a stranger, and it was
claimed to be satisfied from cir-
cumstances. The lord chancellor
said he had gone through all the
cases, " and it appears," he said,
"to be the result of them that
where a stranger gives a legacy
by will, and afterwards a sum with-
out any evidence that it is intended
for the same purposes, it is not
taken as a satisfaction. To make
it so, it must appear at the time
of the gift to he meant as an ademp-
tion of the legacy." Without
going over the cases, which may
be found collected in any syste-
matic treatise on legacies, it may
be safely laid down, that the whole
doctrine which declares that an
advancement to a child is a satis-
faction of a legacy in a will ante-
cedentljr executed, proceeds upon
the presumption that payment,
and not a fresh gift, was intended
by the testator. This presump-
tion maj'^ be overcome by evidence
that such was not the intention,
and when such evidence is offered
it may be answered by other evi-
dence of the same character.
" The whole question" said Lord
Chancellor Cottenham, " is one of
intention;" thus re-affirming a
position which Lord Thurlow had
laid down nearly fifty years before
{Powys V. Mansfield, 1837, 3 Myl.
& Craig, 359).

The defendants in this case rely
upon evidence of the actual inten-
tion of the testator, and such evi-

dence being of the most authentic
character and entirely satisfactory,
it is unnecessary, either, to ex-
amine the ground upon which
that doctrine, the policy of which
has been sometimes questioned^
stands. It' has never been denied
that the intention of the testator,
that a gift inter vivos should
satisfy a legac}^, when once estab-
lished, must prevail ; though it
has been doubted upon plausible
grounds whether the reasoning,
by which the doctrine of presumed
satisfaction arising out of the re-
lation of parent and child has
been supported, was not too arti-
ficial and refined (Ex parte Pye,
18 Ves. 151 ; Story's Eq. Jur.
§ 1118). But I have not met with
any case, English or American, in
which the existence of the doctrine
has been denied.

The same principle was laid
down in Sims v. Sims, 2 Stock-
ton's Ch. 158, and Clendenning v.
Clymer, lY Indiana, 175, 179, and
is as well established under the
American decisions as it is in Eng-
land ; lliner v. Atherton^s Uxor's,
11 Casey, 528 ; Gill's Estate, 1
Parson's Eq. 139. In Roberts v.
Weatherford, 10 Alabama, 72, a
father bequeathed ten slaves to his
daughter, and all the rest to his wife.
These bequests were of quantity,
and not specific. He afterwards,
on his daughter's marriage, con-
veyed ten slaves by deed, in
trust for her separate use. Gold-
thwaite, J., said, that the case was
manifestly one for the application
of the rule, that where a parent
bequeathes a legacy to a child, and
afterwards in his life-time gives

786

SATISFACTION. — ADEMPTION.

a portion, or makes a provision for
tlie same child, it will be pre-
sumed to be in view of the legacy,
although it be not so expressed,
wherever it is equal to, or exceeds
tlie amount of the legacy, is cer-
tain and not contingent, and is of
the same nature. The presump-
tion was corroborated in the case
under consideration by the testa-
tor's declarations, but would arise
Independently of these from the
substantial identity of the gifts.

Slight differences between the
bequest and the gift or advance,
will not exclude the presumption,
or even those which are material,
if it appears that the benefit which
the testator conferred in his life-
time, was intended as a portion
or advancement, and was therefore
presumably a fulfilment of the pur-
pose expressed in the will. Thus,
an advance to a husband may sat-
isfy a legacy to a wife, or a settle-
ment on a married woman and her
children preclude her from enforc-
ing a previous bequest to herself,
ante, T56 ; see Lloyd v. Harvey, 2
Russell & Mji-lne, 310 ; Paine v.
Parsons, 14 Pick. 103. It is, never-
theless, observable that these de-
cisions were made at a time when
the personal property of a feme
covert vested absolutely in her
husband, or might be reduced to
possession by him, and they would
not necessarily be followed now
that her rights are not less dis-
tinct than his.

It also has been held that a limi-
tation over on a, bequest for life, is
satisfied if the amount be ad-
vanced to the first taker, because
the ademption of the foundation in-

volves that of the superstructure ;
GarretVs Appeal, Z Harris, 212;
but this argument is question-
able, and goes bej'ond the ground
taken in Kirk v. Eddowes, 3 Hare,
509; ante, 756.

It seems, nevertheless, that
where the gift over is contingent,
OB to the descendants of the first
taker as a class, it may be adeemed
by an advance to him during the
testator's life ; see Hine v. Mine,
39 Barb. 50t ; Kirk v. Eddowes,
post, Y90.

In Hopwodd v. Hopwood, 22
Beavan, 728, a father made his
will, giving to each of his three
j^ounger children 5000L One of
his younger sons, F., married. On
that marriage the father entered
into a covenant that he would
cause the sum of 5000Z., with in-
terest, to be paid to the trustees
of the marriage settlement within
twelve months after his death. By
a codicil made after the date of
this settlement, the testator recited
what he had given by his will to
each of his two j-ounger sons, and
directed his trustees to raise "a
further sum of 7000?. for each of
them, and to hold such further
sum on the same trusts as those
of the 5000Z." The testator after-
wards raised a sum of 5000L
with which he purchased a lieu-
tenant colonelcy in the Guards for
his other younger son, H., and he
then made a codicil declaring that
this sum, so laid out, was to be
taken by H., in satisfaction of the
legacy given him by the will. The
court held, reversing the decree
of the Master of the Rolls, that
the circumstances did not rebut

EX PARTE PYE. — CHANCEY'S CASE.

787

the presumption that the covenant
was in satisfaction of the 5000Z.
given by the will to F. Lord
Eingsdown said in delivering his
opinion in the House of Lords,
" that a covenant to settle a sum of
money upon a child, is as much an
ademption of a prior bequest as
if the amount were actually paid.
Bj' providing a portion for the
child in a different form, the father
indicates his intention that the
child shall not receive the portion
which has already been bequeathed.
It is not merely that the child shall
not take both ; he has no option
which he shall take. The father
is presumed to have substituted
the provision by deed for the pro-
vision by will, and from that time
the legacy is at an end. It is not
necessary that the legacy should
be paid in order that it may be
adeemed. It is sufficient that if
the testator has done that which in
the opinion of the court shows an
intention that it shall not be paid."

These remarks were cited and
approved in Miner v. Atherton's
Ex'ors, 11 Casey, 528. It would,
nevertheless, be erroneous to infer
that the ademption results from a
change of puri ose. The bequest
is not adeemed because the testator
has changed his purpose, but be-
cause the gift fulfils the purpose
of the bequest.

In Miner v. Atherton's Ex^ors,
11 Casey, 528, a father gave a
legacy of $1400 to a minor daugh-
ter, and afterwards executed a
bond to a trustee conditioned for
the payment of $30 annually for
her use during his lifetime, and

t.ha

cease. It appeared that the bond
was voluntary, but there was no
evidence that the testator had ex-
pressed an intention to adeem the
legacy. The court held that pay-
ment was not requisite to the
ademption of the legacy ; it was
enough that the testator entered
into a covenant to afford a benefit of
a like kind and equally beneficial,
after his death. Slight differences
would not prevent the presump-
tion from attaching, especially
where, as in the case in hand, the
change was in favor of the lega-
tee, and consisted in the substitu-
tion of an absolute or irrevocable
undertaking for a testamentary
provision. Read, J., said : " A
legacy by a father to a child is
understood as a portion, because
it is a provision by a parent for
his child. If the father afterwards
advances a portion for that child,
it will be an ademption of the
legacy, in whole or in part, as the
advancements are larger, or equal
to, or less, than the testamentary
portion. And this may be the
case, although there is a wide dif-
ference between the limitations of
the portion under the will, and the
limitations of the portion under
the settlement;" Lord Durham y.
Wharton, 3 Clark and Finnelly,
j4g_ * * * » There is no doubt
on the face of the will that the
legacy to his daughter is a por-
tion, and it seems equally clear
that the bond securing the pay-
ment of exactly the same amount,
with interest, within one year after
his decease, was substituted for
the testamentary provision, and

,-P d!>l i nn

4-U„ 1^

788

SATISFACTION. — ADEMPTION.

The case stands simply on the like
effect of the will, and the bond,
without parol evidence to rebut
the presumption, which must'con-
sequently prevail."

In Lloyd v. Harvey, 2 Russell
& Mylne, 310, the testator on the
marriage of his daughter Louisa,
settled the surn of 5,000L in trust
on her husband for life, and after
^ his decease, if she should survive
him and there should be issue of
the marriage, the trustees were to
pay one thousand pounds to her,
and apply the remainder to the use
of the children of the marriage,
but if there were no children, they
were to pay the widow £2,000, and
tlie residue of the £5,000 to the
liusband's executors and adminis-
trators. The testator subsequently
bequeathed £5,000 to his daughter
In addition to the sum which had
been secured when she married ;
and five years afterwards, by in-
denture, covenanted to pay £5,000
to the persons designated as trus-
tees in the settlement, for the trusts
therein declared.

The only question was whether
the £5,000 mentioned in this in-
denture, was a satisfaction of the
same sum given by the will. It
was proved that the testator stated
in a conversation with a tliird
person, who was called as a wit-
ness, that it was his intention to
distribute his property equally
among his children ; that he enter-
tained the same affection for each
of them, and meant that they
should all take alike. The Master
of the Rolls said it had been in-
sisted that as the testator's daugli-
ter Louisa, or her husband in her

right, would have taken the legacy
of £5,000, unfettered by the trusts
of the settlement, it could not
be adeemed by the £5,000 given
by the indenture, subject to those
trusts. The soundness of this ar-
gument was questionable, because
both sums were additions to the
daughter's portion, and designed
to provide for the family of which
she was a jsart, and it was doubt-
ful, undea' Trimmer v. Bayne, 1
Vesey, 508, whether the difference
between'her interest in the two gifts
was such as to exclude the pre-
sumption against double portions.
If, however, that presumption did
not attach, there was still enough
to show that it was not the testa-
tor's intention to give both amounts.
The will itself indicated that he in-
tended that all his children should
partake alike, and his declarations
to that effect were admissible, not
on the ground of fortifying or re-
pelling a presumption, but as ex-
trinsic eA'idence that he did not
mean to make a twofold provision
for his daughter Louisa.

In Paine v. Parsons, 14 Pick.
313, a father bequeathed the sum
of $268 to his daughter, "to be
paid at her marriage in money or
such articles of personal estate, at
cash price, as she may choose.''
The daughter married one Childs,
when the testator gave her certain
articles and money, and charged
her with that amount in his books.
He afterwards paid her $50, and
took a receipt from her husband
as for so much received on account
of her portion, and also accepted
and paid an order drawn on him
by Childs for a small amount, and

EX PARTE PYE. — CIIANCEY'S CASE."

789

pinned the draft in his receipt book.
The testator subsequently exe-
cuted a codicil containing the fol-
lowing bequest, " I further give my
daughter Sallie $100, in addition
to what I have before given her,"
and declared not long afterwards
that he had paid all the legacies
in his will except that to " Sallie,"
on which he still owed $150. It
did not appear that Childs or his
wife was present when this was
said, or that it was communicated
to them; but Childs received $150
from the testator shortly before
his death. The court said, that
it appeared from the charge in
the testator's books, and the
other evidence, that the money
paid to the daughter on her
marriage, was by way of por-
tion or advancement, and if so, it
necessarily operated as a satisfac-
tion ^ro tanto. The same remark
applied to the money for which
the testator had taken a receipt.
There might be more doubt as to
the order, but as tlie testator
fastened it in his account book
among other vouchers, it was evi-
dence of his intention to treat it
as an advancement, and it must
be so considered. The construc-
tive republication of the will by
the codicil, did not rebut the in-
ference in favor of ademption, and
merely showed that the testator in-
tended to add $100 to the pre-
vious bequest, and not that he
meant to disturb or invalidate the
payments which had been already
made to the legatee. Judgment
was then entered against the lega-.
tee, without adverting to the ques-
tion whether the $150 paid to

Childs after the execution of the
codicil, did or did not operate as
satisfaction.

An advancement may operate as
an ademption of a bequest, although
it is put in the form of a loan, and
the note or bond of the legatee
taken for the amount ; Hine v.
Hine, 39 Barb. 501 ; Richards v.
Humphreys^ 15 Pick. 133 ; Gar-
reWs Appeal, 3 Harris, 212. In
Hine v. Hine the testator be-
queathed to his executors $1600 in
trust, to purchase a farm for the
benefit of his son, Orlando Hine ;
the title to be held by the execu-
tors for three years, and tlien con-
veyed to Orlando, or in the event
of his death to his heirs. The tes-
tator had several children, and
the will contained a recital that
each of them was to have $2,000
as his share of the estate, and that
Orlando had already received
$400 on account. He subse-
quently advanced $1500 to his
son, to aid him in paying for a
farm, and took a receipt in these
words : " Received of Elkanah
Hine, $1500 to make payment
of the farm I got of Norman
Baker, which money I am to
account for without interest
(signed) Orlando Hine." It ap-
peared in evidence that Orlando
applied for the $1500 on account
of his portion, that the testator
gave it to him at such, and that
they both spoke of it subsequently
as part of the amount bequeathed
in the will. Allen, J., said :
" Where a legacy is given for a
particular purpose specified in
the will, and the testator, during
his life, accomplishes the same

790

SATISFACTION. — ADEMPTION.

purpose, or furnishes, the intended
legatee and beneficiary with
money for that purpose, the
legacy is satisfied. (1 Boper,
365 ; Debeze v. Mann^ supra ;
Bosewell v. Bennett, 3 Atk. 11 ;
Carver v. Bolles, 2 R. & M. 301 ;
Trimmer v. Bayne, 1 Yesey, 508.)
In this case the purpose and object
of the legacy, as expressed in the
■will, and the purposes for which
the money was given by the testa-
tor, in his lifetime, were tlie same,
to wit : to do for his son Orlando
■what he had done for each of his
other sons, aid him to the amount
of two thousand dollars in the pur-
chase of a farm. The provision
for the family or heirs of Orlando
■was incidental and contingent,
and gave to the jilaintiffs no
vested right in the portion. The
reference to the heirs of Orlando
in the will, and in the provisional
arrangement for a conveyance of
the farm to them by the executors,
in case of the death of Orlando
before he should become entitled
to the conveyance, is no evidence
of an intent on the part of testa-
tor to give to Orlando the sixteen
hundred dollars as a bount}^, in
addition to his portion. In Car-
ver V. Bollea (nupra), the portion
by will was secured to the children
of the legatee (a daughter) after
her death, she having but a life
estate in it, and yet it was held
adeemed by an advance of a large
part of tlie amount to the daughter,
absolutely upon her marriage, and
the conveyance of the residue upon
the trusts of the marriage settle-
ment, differing entirely from the
trusts of the will. The testator,

in framing his will, sought to
make the legatee equal with his
other daughters, whom he ad-
vanced in like amounts upon their
marriage, and this intent was fully
carried out by the provision upon
the marriage. So here the promi-
nent idea was equality among the
children, and that was accom-
plished by the advance after the
making of the will, to aid Orlando
in purchasing a farm. The Court
does not inquire whether the por-
tion by tlie will is entirely and ab-
solutely to the child, or whether
the subsequent advance is in the
precise form indicated by the will.'
The advancement not being a per-
formance of a covenant or satis-
faction of a debt, it is presumed to
be a satisfaction of the j)ortion,
although differing in some of the
circumstances from the provision
of the will. (See per Lord Eldon,
in Trimmer v. Bax/ne, supra.) A
stricter rule is observed as to the
satisfaction of a covenant or debt.
(Clark V. Sewell, 3 Atk. 98;
Monck V. Monck, 1 Ball & Beat.
304; Sparks Y. Cator, 3 Ves 530.)'
The presumption upon the will was
that the advancement was intended
in satisfaction of the portion, and
the onus was upon the plaintiffs
to overcome that presumption by
showing a different intent. Parol
jjroof was competent, not to vary
the terms of the will, but to es-
tablish the acts and intents of the
testator, either in behalf of the
plaintiffs in rebutting the presump-
tion of satisfaction, or of the defend-
ants in reply to such evidence in
support of the alleged satisfaction.
(Langdon v. Astor's Ex'rs, supra ;

EX PARTE PYE

■CHANCEYS CASE,

791

Williams v. Crary, 4 Wend. 443 ;
2 Williams on Executors, 82T.)
Tlie note or receipt taken upon
the advance of the principal sum,
rather strengthens the presumption
contended for by the defendants.
It was an acknowledgment of the
receipt of fifteen hundred dollars
which Orlando was " to account
for without interest." Orlando
had been intemperate and impru-
dent, and the very form of the
vouclier indicates, not a loan, but
an advance in a way to give the
donor a control or influence to
some extent over the son, in
place of that absolute control
which the executors were to have
in the use and appropriation of
the legacy for his benefit. The
purpose of the father wAs not to
make the son his debtor, but by a
discreet and prudent advance of
the portion during his own life, to
encourage and help on the unfor-
tunate son, and enable him to pro-
vide for himself and family, and
dispense with the tutelage of the
executors. There was no provision
to pay, or terms of payment fixed,
and no security asked or given.
It was an advance of a trifle less
than the portion, and for the same
purposes for ' which the portion
was set apart and appropriated,
and the voucher taken in refer-
ence to it, and the accounting, in
the minds of the parties, was an
abatement of the legacy pro tanto.
All the circumstances and acts,
as well as the declarations of the
parties, confirm this view of the
case, and the judgment of the
referee must be affirmed with
costs."

In GarreWs Appeal^ 3 Harris,
212, Elizabeth Garrett bequeathed
$800 in trust, to pay the income
yearly to her son, and the princi-
pal to his children at his death.
She subsequently lent him $640
and took his bond. The instru-
ment waSk found among the papers
of the testatrix after her death,
with the following indorsement in
her handwriting: " This is not to
be collected, but is a part of my
son's jDortion, and stands against
him only for that purpose. Signed
Elizabeth Garrett." She subse-
quently by a codicil to her will, in-
creased the bequest in his favor
to $1000. Coulter, Justice, said,
that it appeared indubitably from
the memorandum left by the tes-
tatrix, that the amount of the bond
had been advanced by her to the
legatee as a portion, and was not
to be collected. It followed that
the legacy was adeemed or satisfied
to that extent, not only as it re-
garded his life interest, but as to
that of the remainder-men ; the
amount which was to have gone to
them, having been appropriated ab-
solutely to the life tenant. The
codicil did not vary the case,
except by augmenting the balance
to which the legatee >vould be
entitled after deducting the $640
which he had received on account.

The presumption does not ex-
tend beyond the parental relation,
to persons however near or dear,
for whom the testator is not under
an obligation to provide, or even
it is said to a wife or grandchild ;
and hence a legacy to such a one
will not be adeemed by a subse-
quentadvauce, ante, tT3. A.greeably

792

lATISF ACTION. — ADEMPTION.

to this view, if one who has be-
queathed $10,000 to his wife, and a
lilje sum to his son or daughter,
gives that amount to each of the
legatees, the wife's claim under the
will continues, while the child's is at
an end, ante, 1 '14. Such aresult would
scarcely be anticipated by any man
who was not versed in this branch
of tlie law, and is calculated to dis-
appoint intention rather than ef-
fectuate it. The true exit from the
difficulty seems to lie in regarding
the presumption as one of fact,
which at the most shifts the bur-
den of pi'oof, and leaves the court
free to decide according to the
truth. See Powell v. Cleaver,
2 Brown C. C. 499.

In Powell V. Cleaver, the testa-
tor left his niece a legacy of £6,000
which, was not designated or de-
scribed in the will as a portion.
He subsequently on her marriage
gave her £5,000, and also con-
veyed an annuity to her use.
It appeared from the marriage
settlement, and' from his books,
that these advances were in-
tended to be in full of her share
or portion of his estate. Lord
Thurlow said, "the question of
ademption as between parent
and child is a presumption of
evidence only, not a legal pre-
sumption as to its being considered
as the payment of a debt, because
tlie law does not compel the parent
to give the legacy." ******
Did the advancement of £5,000 on
the marriage of the defendant
adeem the legacy wholly or 2^^o
tanto ? * * * "A legacy prima
facie is presumed to be a bounty to
the legatee, and must stand as such

donee probetur in conlrariwm
The word portion, although applied
in the case of a parent, shall not
be so applied to the gifts of other
relations or friends. It has been
determined not to extend to a
grandfather. Whatever founda-
tion there might be for the origi-
nal application of the rule, that
the advancement of a parent shall
not be a further gift, it is not now
to be disputed, but it is obvious
that the intent of the testator is as
often disappointed as served by it.
Those cases stand on their own
ground ; this case is an attempt to
make a friend's legacy satistied by
a subsequent advancement. There
are cases where a man may describe
himself so that tlie gift by the will,
and that in his lifetime, may be pre-
sumed to be intended for the same
purpose, but it must appear that he
meant to put himself in loco paren-
tis ; for there are no cases where it
has been so held, if the second gift
appeared to be diverso intuitu. I
have gone through all the cases,
and it appears to be the result of
them, that where a stranger gives
a legacy by will, and afterwards
gives a sum withovit anj- evidence
that it is intended for the same
purpose, it is not taken as satisfac-
tion ; to make it so, it must appear
at the time of the gift to be meant
as an ademption of the legacj'."

The turning point in this in-
stance seems to have been, that
the legacy was not described as a
portion in the will, and could not
be presumed to have been so in-
tended, in the absence of extrinsic
evidence to that effect and where
there was no parental obligation ;

EX PARTE PYE. — CHANCEY S CASE.

793

and hence the designation of the
subseqvient gift as a portion, did
not show that it was identical with
the testamentary provision, or a ful-
filment of the purpose therein ex-
pressed.

It is established, under the prin-
cipal case, that one who takes on
himself the duty of providing for
anotlier as if he were his child, is
so far in the position of a parent,
that a legacy from him to the sub-
ject of his care, may be regarded
as having been designed to fulfil
the obligation which he has thus
assumed, and will consequently be
adeemed or satisfied by a subse-
quent gift of a like kind.

^uch an intention may be ex-
pressed in the will itself, or de-
duced extrinsically from the testa-
tor's declarations, or from his con-
duct in caring for the legatee,
and affording him the means of
support direct!}-, or through an
intermediate channel, ante,'JlO; see
GilVs Esitate, 1 Parson's Eq. 139.

In Oill's Estate, the testator
executed a codicil, bequeathing
$3000 in trust for his niece, Ann
Matilda Campbell, with a proviso
that if she should many, the
amount might be laid out in furni-
ture for her sole and separate use.
The legatee was one of several
children of a deceased sister to
whom he had previously devised
liis estate in. equal shares,- by a
will which contained a declaration,
" that no loans or advances made
to any of my aforesaid nieces,
shall be charged against them, or
the bequests and devises in their
favor, unless, and only so far as

charges therefor shall appear on
my book."

On the marriage of Miss Camp-
bell, to Miller, which took place
during the testator's life, he ex-
pended $2383 in furnishing her
house, and debited her with that
amount in his account book.
It was also in evidence, that he
had promised his sister to care for
her children as for his own, and
that his acts and declarations
were such as to show that he in-
tended to fulfil the obligation.
King, P. J., said, " Lord Eldon ob-
serves in Ex parte, Pye, 18 Vesy,
140, 'that, where a father gives a
legacy to a child, the legacy com-
ing from a father to his child must
be understood as a portion, though
it is not so described in the will ;
and afterwards advancing a por-
tion to that child, though there
may be slight circumstances of
difference between the advance
and the portion, and a difference
in amount, yet the father will be
intended to have the same purpose
in each instance, and the advance
is therefore an ademption of the
legacy ; but a stranger giving a
legacy is understood as giving a
bounty, not as paying a debt; he
must, therefore, be proved to mean
it as a portion or provision either
on the face of the will, or, if it
may be, and it seems it may, hy
evidence, applying directly to the
gift proposed by the will.' See
Elkenhead's case, 2 Yernon, 25T ;
Ward v. Lont, Prec. in Chan. 182;
Watson v. Lord Lincoln, Amb.
325. The presumed ademption
may be destroyed or confirmed by

794

SATISFACTION. — ADEMPTION.

the application of parol evidence
of a different intention by the tes-
tator ; Biggleston v. Grubb, 2 Atk.
48 ; Ronnell v. Barnett, 3 Id. 77
Trimmer v. Bayne, 1 Yes. 508
Robinson v. Whitely, 9 Id. 577
Thelluson v. Woodford, 4 Madd.
420. This doctrine equall3- applies
where the testator has placed him-
self in loco parentis to the legatee.
Where the testator's assumj)tion
of the office of a parent is estab-
lished, his legacy will be consid-
ered a portion, and a subsequent
advancement will be an ademption
in all cases where it would be so
if made by a natural father.

>>' In the extensive class of cases
on this doctrine to be found in the
Equitj' Reports, the chief difficulty
in its application seems to have
arisen from the inquiry, what are
circumstances sufficient to invest
the testator with the assumed re-
lation of parent to the legatee;
and the evidence competent to
prove that he placed himself in
such character ? Roper declares
the test in such cases to be,
whether the circumstances taken
in the aggregate amount to moral
certainty, that a testator consid-
ered himself in the place of the
child's father, and as meaning to
discharge that natural obligation,
which it was the duty of a parent to
perform.

" The assumption by a person
of the relation of a parent to the
legatee may be proved hy parol,
and is not required to be collected
from the face of the will itself.
The facts existing in this case,
qlearlj'- show that the testator
placed himself in that relation to

the children of his sister, Mary
Campbell. On the clearest prin-
ciples, therefore, the advance for
furniture to Mrs. Miller must be
regarded as an ademption of her
legacy of $3000, to the extent of
such advance. The legacy was
given chiefly to purchase for her,
on her marriage, household furni-
ture ; and the money advanced
was used for that purpose. So
far, I agree with the auditor.
But, in stating the account, he
has credited Mrs". Miller with the
legacy of $3000, and debited her
with the furniture ; the result is,
that her portion exceeds those of
her brothers and sisters, $3000 ;
who, while thej' are charged with
advances made to them, have no
such special bequest given. Their
advances come from the respec-
tive fifth parts of the general
residue, while that of Mrs. Miller
remains intact, being taken from
the special legacy given hy the
codicil of June, 1842, for the pur-
chase of furniture on her marriage.
The ademption of a legacy is more
properly speaking its extinguish-
ment ; see Blackstone v. Black-
'stone, 3 Watts. ^387; and if, as has
been shown, the advance made to
her for furniture, operates as such
ademption, it as effectually extin-
guishes the legacy to the extent
of such purchase, as if it had been
ever so formally cancelled and
revoked. Instead, therefore, of
considering Mrs. Miller as a spe-
cial legatee of $3000, in addition
to her bequest of one-fifth of the
residue, the auditor should have
stated her account on the basis of
her being a special legatee to the

EX PARTE PYB,

CHANCEYS CASE.

795

extent of the difference between
the sum of $2383.44, the amount of
the portion to her for the pur-
chase of furniture, and the $3000 be-
queathed to her for the lilce object.
This works perfect equality among
the adopted children of the testa-
tor; an object he had manifestly
at heart. She then stands like
her sisters, who had advances
made them for similar purposes.
They are charged with such advan-
ces, and so will she be. That this
was the intention of the testator,
is not only clear from the clause
in his will which directs all loans
arid advances made to the chil-
dren of his sister, Mary Campbell,
appearing in his books, to be
charged, against them ; but from
the fact, that the entry against
Mrs. Miller, is actually made after
the date of the codicil, giving her
the special legacy of $3000, for
furniture after her marriage. The
radical error of the auditor, con-
sists in his having given Mrs.
Miller credit, in settling the ac-
count of the legatees of John Grill,
for a bequest which had no exis-
tence, and which was extinguished,
this being the true idea conveyed
by the technical phrase adeemed ;
Blaclcstone v. Blackstone, supra.
If John Gill, when he purchased
the furniture for Mrs. Miller, had,
besides charging the sum expen-
ded for it against her, by a codicil
declared his previous bequest of
$8000 revoked to the extent of
his purchase, could this cancelled
legacy be credited to her ? Now
the effect of the advance made by
him is equivalent to such a formal
revocation, and Mrs. Miller stands

subject to the general direction of
the will, which makes her chargea-
ble with advances made to her, ap-
pearing on the testator's books."

The opinion expressed in this in-
stance that Mrs. Miller was to be
charged with the advance without
being credited with the bequest,
seems to have arisen from a fail-
ure to distinguish between ademp-
tion in the proper sense of the
term, and revocation. A legacy
which is revoked, is as if it had
never been, and must consequently
be left out of any account which
it may be requisite to state, be-
tween the legatee and the execu-
tors. A bequest is adeemed by
an advancement not because of a
change in the testator's purpose,
but because the advancement ful-
fils the purpose of the bequest.
The proper mode, therefore of as-
certaining the balance is to deduct
the amount actually received, by
the legatee, from the sum total of
the bequests.

Agreeably to the English au-
thorities, a grandfather does not
stand in the relation of a parent,
and a gift from him to his grand-
children will not adeem a bequest
in his will, ante, YTS. An opposite
opinion has been intimated in
some of the American decisions, on
the authority of Story's Eq. Juris-
prudence see Langdon v. Astor^s
Ex'rs,% Duer; 16 Nct? York, 9;
ante, ISi^Clendeningv. Glymer, lY
Indianna, 175 ; and although the
point was not determined in these
instances, the view taken by the
court is susta,ined by the analogy
of the cases, which establish that
a voluntary covenant in favor of a

796

SATISFACTION. ADEMPTION.

grandchild may be specifically
enforced. Vol. 1. 444. Whatever
may be thought on this head, it is
altogether reasonable to infer that
less may suffice to indicate the as-
sumption of a parental obligation
between near relatives, than in the
case of a stranger, and such is the
inclination of the authorities. See
3Ionck V. Monck, 1 Ball & Beatty,
303 ; Gill's Estate, 1 Parson's Bq.
139, ante.

According to the former course
of decision, the court would not
presume that a legacy of a residue
or other indefinite amount, had
been satisfied by an advancement,
because the testator might be
ignorant whether the benefit which
he was conferring equalled that
which he had already willed ; Free-
mantle V. Banks, 5 Vesey, 85, ante,
YSS ; and the law was so held in
Glendeningy. Clynier, 11 Indiana,
155, on the strength of this case
and of Story's Equity Jurispru-
dence, sect. 1115. These decisions
seem to have been influenced by
the idea, which was discarded in
Pym v. Lockyer, 5 Mylne & Cr.
29, that satisfaction must necessa-
rily be in full ; and it is now estab-
lished in England, tliat if a residu-
ary bequest and subsequent ad-
vancement are both made to a
child, and therefore presumably
intended as a portion, the legacy
is a<leemed wholly or pro tanto,
ante, 758; Montfiore v. Guedella,
1 De Gex, F. & J. 93.

In Montefiore v. Ouedella, 1 De
Gex, F. & J. 93, the testator be-
queathed 3000L to his son Haim
Guedella, absolutely, and also one-
third part of his residuary estate,

in trust for him during his life,
and after his decease for his issue.
After the date of the will, Haim
married, and the testator settled
2,000L bank annuities in trust for
him and his wife, and after their
decease upon their offspring. The
question was whether the settle-
ment was an ademption of the
pecuniary legacy to Haim Gue-
della, or of the residuary bequest.
The Lord Chancellor said " the
question remains whether the
ademption shall be from the
residue, or from the legacy of
3,000Z. Instead of ademption,
it would more properly be called
substitution, or an advance by
the testator in his lifetime, in-
stead of payment by his execu-
tors. Then for what shall the
advance on Haim's marriage be
considered as substituted pro <a»to.
I say, for that which it most
nearly resembles. The advance
and the residuary bequest were
almost homogeneous, the trust
being substantially the same for
the benefit of Haim and his chil-
dren. On the contrarj', the legacy
for 3,000L was an absolute gift
which Haim was to receive for his
own exclusive benefit. AYhile it
was strangely supposed that there
could not be an ademption pro
tanto, there might be some color
for giving weight to the argument
arising from the alleged uncer-
tainty of the amount of the resi-
due. But after the decision in
Pym V. Lockyer, establishing that
there may be ademption pro tanto,
the cases relied upon to show that
there is a distinction on this sub-
ject between a bequest of a specific

EX PARTE PYE. — CHANCEY S CASE.

797

amount, and a bequest of a
residue, are left without any
reasonable support. It follows
that the testator's intention must
be presumed to have been, that
Haim should receive the full
amount of the legacy of 3,000Z.,
and that the advance on his mar-
riage was part of the provision
for him and his children, which
was contemplated in the residuary
bequest."

Turner, L. J., added " that the
question whether a gift does or
does not operate as an ademption
or satisfaction, must depend upon
the intention, and although the
uncertainty incident to a residu-
ary bequest may influence the re-
sult, it is not decisive."

In Clendeningy. OZj/mer, the tes-
tatrix bequeathed to her daughters,
Cynthia Clendening and Olinda
Bills, three hundred dollars each,
and directed that, the residue of
lier estate should be distributed
equally among them, and her other
children. She subsequently, and
within a few days before her death,
gave the said Cynthia and Olinda
a full share of her estate, with a
distinct agreement, that the ad-
vance thus made should be in dis-
charge of the bequest. It was
held that the pecuniary legacies
must be presumed to have been
satisfied, but not the residuary be-
quests, and that in the absence of
such presumption parol evidence
was inadmissible to show the in-
tention with which the advance-
ments had been made and received.
The court relied for both points on
the authority of Freemantle v.
Banks, where Lord Loughborough

declared that the presumption
might be rebutted or corroborated,
but not founded by parol. The
evidence which was there shut out
consisted of declarations subse-
quent to the gift which was alleged
to have been satisfied , and which do
not appear to have been known to
the legatee, and the decision can-
not be regarded as establishing
that a paj'ment or advance, on the
faith of an express or implied agree-
ment that it shall be in full of a
testamentary provision, will not
preclude the recipient from insist-
ing that the bequest shall be car-
ried into effect by the executors.

It was declared in like manner
in Clarke v. Jetton, 5 Sneed. 229,
that the presumption of ademp-
tion does not arise where the be-
quest is of a residue or part of a
residue, or where the amount is
uncertain from any other cause,
and it was said to follow that a
gift b}' deed of certain slaves to
one of the testator's daughters,
did not adeem her right under a
provision in his will that his slaves
and other personal property should
bS divided into nine equal parts,
and distributed among his chil-
dren.

It is conceded that a gift will
not give rise to a presumption of
satisfaction, unless it is ejusdem
generis and substantially the same
in all material particulars. A pe-
cuniary legacy will not therefore
be satisfied by a subsequent con-
veyance, without proof that such
was the testator's purpose ; nor a
devise by such a legacy ; nor will a
deed for one tract of land adeem a
devise of another ; see Weston v.

798

SATISFACTION.

■ADEMPTION.

Johnson, 41 Indiana, 1 ; Dugan v.
Hollins, i Mai-jland, Ch. 439. So
in Holmes v. Holmes, 1 Brown, C.
C. 553 a legacy of £500 was held
not to have been satisfied by a gift
of the testator's stock in trade, al-
though worth thrice the sum be-
queathed.

In Swoope^s Appeal, 3 Casey,
58, the testator devised his farm

to his son, and $900 to a married
daughter, with a proviso that if he
should make any advance to his
children, it should be deducted
from their respective shares. He
subsequently purchased a house
and two lots of ground professedly
for the use of his daughter Sarah,
and put her and her husband in
possession, but without giving
them a deed. Woodward, J., said,
that where a parent bequeathes a
legacy to a child, and afterwards
gives a portion ejusdem generis to
the same child, if there be nothing
on the face of the will, and no cir-
cumstances in proof to indicate an
intention to give a double portion,
the legacy will be satisfied wholly
or ptro tauto. Had the intended
gift been perfected by a convey-
ance, the case would not have been
within the rule, because the house
and lot were not of kin with the
pecuniary legacy, and could not
satisfy it. But there was no such
deed, nor any parol evidence that
would enable a court of equity to
supply the defect.

In applying these decisions, it
should not be forgotten that the
presumption arising from the pa-
rental relation does not lose its
weight, because the portion is not
of the same nature as the legacy,

although the inference of satisfac-
tion will not be drawn, under such
circumstances, without some addi-
tional proof the testator's pur-
pose. The doctrine of H.x parte
Pye, is one of good sense and
natural Justice, founded on the
presumption that a father in dis-
tributing his property by will
among his children, means to give
each of thiem the amount which he
ought to have, in view of the
claims of all, and therefore that
if it becomes necessar}' or expe-
dient to make an advance to
3X).y one of them, to enable him
to marry or establish himself in
business, the amount so given
should be deducted from the be-
quest, in order not 'to disturb the
apportionment. It may therefore
be contended that the mere cir-
cumstance that the advancement
is not ejusdem, generis, should not
exclude the rule, and we iliay ask
why if a gift of a thousand dollars
will satisf3' a legacy of that amount,
it should not equally be satisfied
by a donation of land or of chattels
of the like or a greater value ; see
Pym V. Lockyer, 5 Mylne & Craig,
21, 42, 44.

The just inference from the
decisions seems to be that where
the advancement is not of the same
nature as the legacy, the court will
not presume that it was intended
to operate as satisfaction, but that
if it appears from the testator's
entries or declarations that he
meant the gift to be in lieu of the
bequest, the legatee will at least be
put to his election, and cannot de-
mand both consistently with equity
and good conscience. Such must

EX PARTE PYE. — CHANCETS CASE.

799

obviously be the result, where the
testator's purpose is communicated
to the legatee and assented to by
him, and the legacy will then be
satisfied by the implied agreement
without regard to the kind or value
of tlie gift.

In Jones v. Mason, 5 Randolph,
517, the testator devised his plan-
tation and thirteen slaves by name
to his son Robert. When Robert
came of age, his father put him in
possession of the plantation, and
with it gave him the number of
slaves bequeathed, substituting
three of inferior value for those de-
signated in the will. The case was
held to be within the principle that
" a gift to a child satisfies an an-
tecedent legacy ^of the same kind."
It was contended that the thing
given must be ejusdein generis with
that bequeathed, and that " no case
could be produced where a legacy
of a specific thing, had. been ad-
judged to be adeemed by the gift
of another specifie thing." The
court said in delivering judgment.
" This whole class of cases depends
upon the intention, and a difli'er-
ence of kind is important only as
hearing on that point. If a man
bequeaths to his child $1000, and
afterwards makes to that child a
deed for a tract of land, and de-
clares therein that it is in satis-
faction of the legacy, all will
agree that the legacy is adeemed.
In Hoskins v. Hoskins, Prac. in
Chanc. 263, a father gave «his son
1501. in his will ; afterwards he
bought him a cornet's commission,
which cost 650L It was decided
that this 650L should be a satisfac-

tion pro tanto for the 750Z. If it
be said that it was so decreed, be-
cause it was in proof that the tes-
tator intended the 650L should be
discounted out of the legacy and
meant to have struck so much out
of his will, but died before the ac-
counts came from London, I an-
swer, it still shows that intention
is everything; ejusdem generic,
nothing. For no one will contend
that the commission in the horse
was ejusdem generis with the ISOL
In ChaiDmanY. SaZ^, 2 Vernon, 646.
S. devised 50Z. to Marj^, the wife
of L. ; afterwards the testator gave
L. a note for 50Z. pajable on de-
tnand. Objected that the note was
to one, the legacy to another. If
the wife survived, she should have
the legacy, and the executors of
the husband, the note. But it was
proved that the note was intended
as satisfaction of the legacj^, and
the bill was dismissed ; showing
that intention is everything.

"It islaid down generally that a
residuary legacy will not adeem a
portion due under a settlement, be-
cause it is entirelj' uncertain what
that legacy may be. But this rule •
like the rest, jdelds to intention ;
Hickman v. Morgan, 1 Bro. Ch_
case 63 ; 2 Bro. Ch. case 394. The
last case I shall cite is Bengal v.
Walker, 15 Ves. 50T, where it was
decided that a bequest of a share in
powder works, charged with an
annuity of 20Z. for life, was a satis-
faction of a portion of 2000/. This
certainly was not ejusdem generis.
But the rule yielded to clear inten-
tion. Upon the whole, we are
clearly of the opinion that the

800

SATISFACTION. — ADEMPTION.

plaintifT, has no claim to Moses,
Harry, and Sam, the legacy being
adeemed by the subsequent gift."
, There is little doubt under the
authorities, that a pecuniary legacy
ma3' be adeemed by the expendi-
ture of money in purchasing goods
or land for the use of the legatee,
or to establish him in business ; and
such is certainly the rule where the
outlay is made at his request. See
OilVs Estate, 1 Parsons' Eq. 139 ;
Hauberger v. Moot, 5 Barr, 108.
In like manner when the testator
bestows value in any form on the
legatee, and charges him with the
amount as cash, the gift is so far
ejusdem generis with a bequest
of money, that it may operate as
an ademption.

In Moore v. Hilton, 12 Leigh, 1,
the testator directed his real estate
to be sold, and the proceeds
equally divided among his chil-
dren. He subsequently purchased
various articles for the use of one
of his daughters, and charged the
amount to her in his books as an
advancement, with a memorandum
of his wish that it should be de-
■ ducted from her share of the estate.
It was held that if the advance was
not ejusdem generis with the be-
quest, it had still been given on
account of the portion of the lega-
tee, and consequently operated as
satisfaction.

Ademption may be of the entire
bequest, or merely partial. It is
entire where the testator carries
his whole purpose into eft'ect in
his lifetime, partial where part
only is performed, and the rest
left for his executors. If one who
has bequeathed a sum of money to

build a dwelling for his son, erects
the house in his lifetime, although
on a different or smaller scale, the
whole bequest is adeemed ; but if
he were to die before the building
was completed, it would clearly be
the duty of his executors to finish
it. In like manner, whether ft gift
of a sum of money by a father to
a child as an advancement, adeems
an antecedent pecuniary legacy to
the same child wholly or pro tanto,
depends prima facie on the amount
of the gift as compared with that
of the bequest. See iliner v.
Atherton's Ux'rs, 11 Casey, 628,
a)ite, 181.

It was, notwithstanding, held at
a former period, tliat in the case
last supposed, ademption must be
in full. If one made a bequest in
pursuance of a parental obligation,
and subsequently gave a portion
to the legatee, although less in
amount, tlie legacj' was at an end.
See Richards v. Humphreys, 15
Pick. 133, 136. This opinion was
founded upon the idea that " the
gift of the portion manifested the
will and intent of the testator,
who is the sole disposer of his own
bounty, to reduce the amount of
tlie provision origiuallj' contem-
plated when he made his will,"
and thus operated as an implied
revocation of the bequest. But it
is now settled that giving a por-
tion or advancement does not ne-
cessarily adeem or defeat a previ-
ous legacy. See Pxjm v. Lockyer,
.5 Myl. & Cr. 89. It was there
contended that a provision made
by will for a child would be wholly
adeemed by a subsequent receipt
of a smaller sum as a portion, but

EX PARTE PYE. — CHANCET'S CASE,

801

. Lord Cottenham said that if the
rule were pushed to that extent,
it would be contrary to common
sense, and subversive of intention ;
and it was accordingly determined
that " the advancements were
ademptions pro tanto only, of the
legacies before given."

The question, nevertheless, de-
pends on whether the whole pur-
pose of the legac^"^ is fulfilled by
the gift. That purpose as between
parent and child, is presumed to
be that the child shall have his
just share of the parent's property.
If a father, after making a testa-
mentary provision for a son, deter-
mines, in view of the altered state
of his family or circumstances,
that a smaller sum is ail that he
can give consistently with the
' other claims on him, and bestows
that amount on the son as his por-
tion, the object of the bequest is
attained, and ademption is a legal
inference. Thus qualified, the prin-
ciple laid down in Richards v.
Humphreys, is sound, and consist-
ent with the judgment in Pym v.
Lockyer.

Whether the intention that a
portion or advancement to a child
shall be in full of his share of the
-estate, and consequently a valid
ademption of a larger bequest,
must appear from the words or
instrument of gift, or may be de-
duced from the donor's entries or
declarations, seems to be still
doubtful under the authorities ;
post. See Langdon v. Astor^s
Sx'rs, 16N. Y. 9 ; Fowell v.
Cleaver, 2 Brown C. C. 499.

Whatever may be thought on
this head, it is clear that as a debt
VOL. II. — 51

which is payable on a contingency,
or not yet due, may be satisfied
by the acceptance of a, smaller
sum ; 1 Smith's Lead. Cases, T Am.
ed., the same rule must apply to a
legacy which depends on the tes-
tator's pleasure, and that if the
legatee receives value to any
amount, however small, with a
distinct understanding that he
shall not claim under the will, the
implied agreement may be enforced
specifically b^^ a court of chancery.
See Kirk v. Eddowes, 3 Hare,
. 509, ante, 768.

Ademption m'heee the testa-
tor IS NOT UNDER A PARENTAL

OBLIGATION, — It results from what
has been said, that the burden of
proof is on him who alleges that a
gilt from one who does not hold
the relation of a parent, is an
ademption of an antecedent testa-
mentary provision, and he must
show that the bequest was made
for some special end or purpose,
which has been accomplished by
the gift ; see Fowell v. Cleaver, 2
'Brown, Ch. 499, ante, 792. Pank-
hurst V. Howell, 6 L. R. Ch. Ap-
peals, 136. Ill FankhurstY . Howell,
the testator left his wife a legacy
of £'iOOto be paid within ten days
after his decease, and subsequently
during his last illness, gave her
£200 in response to her request
for a sum of money which she
could control immediately upon
his death. Sir W. M. James said,
" that where the testator stands,
neither in the natural nor assumed
relation of a parent to the legatee,
the legacy will be considered as a
bounty, and will not be adeemed
by a subsequent advance, unless

802

SATISFACTION. — ADEMPTION.

the legacy is given for a particular
purpose, or unless it is in some
other way legally apparent that
the advancement is intended as an
ademption. A legacy to purchase
an advowson would, for instance,
be adeemed, or more correctly
speaking, satisfied, by the testator
afterwards purchasing the advow-
son for the legatee. It does not
appear that the legacy in question
was given for a particular purpose
within the meaning of this rule.

Satisfaction It is, neverthe-
less clear, under the authorities,
and on principle, that ifvalueinany
form is given by the testator, in lieu
of a testamentary provision, and
accepted, the agreement will be
binding on the legatee, and he can-
not require the executors to fulfil
the bequest ; Howze v. Mallett, 4
Jones' Eq. 194; Richards v.
Humphreys, 15 Pick. 133 ; Kirk
V. Eddowes, 3 Hare, 509. In
Howze v. Mallet, the testator be-
queathed the children of a de-
ceased daughter $500 each. One
of the legatees married, and
the testator paid her husband
$500, and took from him a receipt
for that amount, " to be deducted
from the bequest to his wife."
Ruffin, J., said : " The only ques-
tion is, whether after payment by
the testator, expressly in satisfac-
tion of a pecuniary legacy, a sec-
ond payment can be enforced
from the executor. It would seem
strange if it could ; for, it would
not be more directly contrary to
the intention of the testator than
to right and justice. The delivery
by the testator to the legatee of a

specific thing bequeathed has al-
ways been held to be a satisfaction
or ademption of the legacy. Al-
though the tenor of the will stands,
yet the gift is ineffectual, because
the legatee having got the thing
intended for him, cannot get it
again. In that respect it must be
the same with the pecuniary leg-
acy. Express anticipated pay-
ment by the testator must ex-
clude a claim for a second pay-
ment of the same sum, since the
testator intended but one gift, and
that he completed in his lifetime.
The ademption or satisfaction of
legacies is founded on a doctrine
of natural as well as artificial
equity against double payments
of one bountj', and the abrogation
of that principle would not only
•not aid in effectuating the inten-
tion of testators, but in almost
every case would defeat tlie inten-
tion. * * * * If a will says
on its face, after giving a pecu-
niary legacy, that if the testator
pays it in his lifetime, it shall not
be again paid by his executors,
surely the fact and the intention
of a payment by the testator, may
be shown in satisfaction, and that
although the will is in general to
speak as of the moment of his
death, and might thus apparently
preclude the possibility of the pre-
payment of a legacy given in that
moment. It is in the nature of a
conditional legacy. So, indeed,
are are all legacies in respect to
this point of satisfaction from the
principle of equity forbidding two
satisfactions. Then the act and
the intention of a payment by the

EX PARTE PYE. — CHANCEY S CASE.

803

testator are here as clear a satisfac-
tion of tlie legacy, as in the sup-
posed provision in the will itself."
These decisions indicate that the
executors may be exonerated from
the fulfilment of a bequest on two
grounds : one that the testator ac-
complished the purpose expressed
in the will ; the other that he made
a gift in lieu of the bequest. The
result is the same in both eases ;
hut there is a material difference
as it regards the principle. In the
former case, the legacy is adeemed ;
in the latter, satisfied. An act
which renders it impracticable to
execute tlie will, may properly be
described as an ademption, but
that term cannot with equal pro-
priety be applied to the substitu-
tion of something else for tliat
which was originally designed. If
one who has bequeathed a sum of
money to be expended in erecting
a house in a particular locality for
a child or relative, subsequently
liuilds the house in Ms lifetime,
the bequest is adeemed, because
the executors cannot fulfil a pur-
pose which has been already accom-
plished ; Monck v. llonck, 1 Ball
& Beatty, 303, ante, lU. The case
is substantially the same where one
gives an equal undivided share of
his estate by will, and afterwards
conveys the same share by deed to
the devisee. But where a pecu-
niary bequest, is followed by a vol-
untary conveyance of real estate,
or a devise of land by a gift of
money, it cannot be said that both
donations are the same, or that the
will is no longer capable of being
carried into efi"ect. The question
then is, did the testator intend that

the gift should take the place of
the bequest ? If this appears on
the face of the instrument of gift,
or from his accompanying acts or
declarations, the legacy will be
" satisfied," though not " adeemed. "

In Richards v. Humphreys, the
testator bequeathed the sum of
$500 to his sister, and afterwards
advanced the sum of $466, to
enable her to purchase land;
and she gave him a receipt, ac-
knowledging that the money was
" in part of her right of dower in
his last will." He also said, that
he was desirous of paying off the
legac3r, and offered her the differ-
ence, which she declined. She had
a husband at the date of these trans,
actions, who died before the testa-
tor. Upon the testator's death,
the legatee brought an action for
the legacy. It was held, that the
receipt and the declarations of the
testator were admissible to show,
that the payment was made on ac-
count of the bequest, and that this
was discharged or satisfied pro
tanto.

The following reasons were as-
signed in giving judgment. "The
ademption of a specific and of
a general legacy depend upon
very different prmciples. A spe-
cific legacy of a chattel, or a par-
ticular debt, or parcel of stock,
is held to be adeemed, when the
testator has collected the debt, or
disposed of the chattel or stock,
in his lifetime, whatever may have
been the intent or motive of the
testator in so doing. But when a
general legacy is given, of a sum
of money out of the testator's
general assets, without regard to

sot

SATISFACTION.

ADEMPTION.

any particular fund, intention is
of the very essence of ademption.
The testator, during his life, has
the absolute power of disposition
or revocation. If he pay a legac3'
in express terms during his life-
time, although the term paj'ment,
satisfaction, release or discharge
be used, it is manifest that it will
operate by way of ademption, and
can operate in no other way, inas-
much as a legacy, during the life
of the testator, creates no obliga-
tion upon the testator or interest
in the legatee, which can be the
subject of payment, release or
satisfaction. If, therefore, a testa-
tor, after having made his will,
containing a general bequest to a
child or stranger, makes an ad-
vance, or does other acts which can
be shown by express proof, or rea-
sonable presumption, to have been
intended by the testator as a satis-
faction, discharge or substitute
for the legacy given, it shall be
deemed in law to be an ademption
of the legacy. Hence it is that
when a father has given a child a
legacy as a portion or provision
for such child, and afterwards
upon the event of the marriage,
or other similar occasion, makes
an advance to such child, as and
for a portion or provision, though
to a smaller amount than the
legacy, it shall be deemed a sub-
stitute for the provision contem-
plated by the will, and thence as
an ademption of the whole legacy.
This is founded on the considera-
tion, that the duty of a father to
make a provision for his child, is
one of imperfect obligation and
voluntary, that his power of dis-

posing is entire and uncontrolled,
that he is the best and the sole
judge of his ability in this respect,
and of the amount which it is
proper for him to appropriate to
any one child, as such provision.
The law presumes, in the absence
of other proof, that it was the in-
tention of the father by the legacy
to make such provision, that it
was not his intention to make a
double provision, that when after
the will is executed, another pro-
vision is made for the same child,
the original intent of making such
provision b^' will is accomplished
and completed, that the purpose
of giving the legacy is satisfied,
and of course concludes, that the
legacy itself is adeemed. And if
the subsequent portion or pro-
vision made in the lifetime of the
testator, is less than the legacy,
still it operates as an ademption
of the whole legacy, not because
a smaller sum can be a payment
of a larger, but because it mani-
fests the will and intent of the
testator who is the sole disposer
of his own bounty, to reduce the
amount of the provision, originally
contemplated, when he made his
will ; Eartop v. Whitmore., 1 P.
VVms. 681 ; Clai-ke v. Burgoyne,
1 Dick. 353. From this view of
the subject of the ademption of
general legacies, it seems manifest,
that the ademption takes effect,
not from the act of the legatee,
in releasing or receiving satisfac-
tion of the legacy, but solely from
the will and act of the testator, in
making such paj'ment or satisfac-
tion, or substituting a different
act of bounty which is shown by

EX PARTE PYE. — CHANCBY S CASE

805

competent proof to be intended
as such payment, satisfaction, or
substitute.

" The question therefore is,
whether from the facts shown in
the present case, it sufficiently ap-
pears, that the advance of money
made by the testator in his life-
time to his sister, was intended as
a part payment and satisfaction of
the legacjr given to her bj' his will ;
if it was so intended, the law deems
it an ademption pro tanto.

" Most of the cases cited on the
part of the plaintiff, to show what
the law does, and what it does not,
regard as an ademption, are eases
where the testator, in making an
advance during his lifetime, does
not express the object or purpose
of such advance, and its intended
effect upon a legacy given, and are
designed to show, from what com-
binations of facts and circum-
stances, the law will or will not
raise a presumption, that it was
the intention of the testator, that
tlie advance should or should not
operate, in whole or in part, as a
satisfaction or substitute for the
legacy. But the^- all proceed upon
the assumption, that where such
intention is proved, either by legal
and competent proof, or by legal
presumption, the consequence of
ademption will follow. Such were
tbe cases of Er parte Dubost, 18
Tes. 140, and Powel v. Cleaver,
2 Bro. C. C. 499 ; the former that
of an illegitimate child, described
as the daughter of another person,
and the latter, of a niece. There
Was nothing in either case, satis-
factorily to show that the testator
intended to place himself in loco

parentis, and therefore nothing,
according to the somewhat artificial
reasoning before stated, to raise the
presumption, that he intended the
legacy as a provision for a child.
The ground therefore was taken
away, upon which the law would
conclude that the advance on mar-
riage was intended as a proAision,
and therefore there being neither
evidence nor presumption, that
the advance was a siibstitue for
the legacy, it could not operate as
an ademption.

" In the present case we are of
opinion, that conforming strictly
to the rules of law in regard to the
admissibility of evidence, it is
quite apparent from the facts
proved, that the payment was in-
tended by the testator, as an ad-
vance on account of this legacy,
and an ademption pro tanto.

" If it stood upon the receipt
alone, we are strongly inclined to
the opinion, that by a necessary
construction it must applj' to this
legacy. It acknowledges the re-
ceipt of Ihe money, of Hawes, in
part of the plaintiff's right of
dower under his last will, he being
her brother. Had the words ' of
dower,' been omitted, the receipt
would have been sufficiently clear,
to wit, her ri^ht under his last
will and testament. When the
words come to be applied to the
subject-matter, it is apparent that
they are perfectly' senseless. If
by retaining these qualifying
words, the clause could be made
to apply to any other right or
subject-matter, or if the effect of
them in their actual application,
would be such that they could not

806

SATISFACTION. ADEMPTIOTiT.

apply to and describe this legacj-,
tlie court would certainly not be
warranted in rejecting them. It
is a general rule, in the construc-
tion of written instruments, that
where words are used, -by way of
description, of persons or things,
and the words apply in all material
particulars to one subject, and
there is no other, to which tliey
can apply, thej' shall be considered
as applying to that which they do
describe sufficiently to indicate its
identity, although they fail in some
particular. Such misdescription
is regarded as a latent ambiguity,
which arises, when the words come
to be applied to the subject-matter,
and therefore may be corrected by
showing aliunde that there is no
such subject to which they can be
applied, but that there is another
which the words do sufficiently de-
scribe to show that it was the sub-
ject intended. So where a legacy
describes one species of stock ;
but it appears that when the testa-
tor made his will he had not that
particular species of stock, but
another so like it, that it could
leave no doubt it was the one in-
tended, this latter shall pass by
the legacy ; Seldwood v. Mildmay^
3Ves. 310. Here, considering the
receipt as a receipt of money in
part of a right of dower under his
will, it is wholly senseless and de-
scribes nothing, because, on refer-
ence to the will, no such right ap-
pears, and no commutation or
satisfaction of any right of dower
is shown, to which it can apply.
But there is another interest, which
being a testamentary gift to a
woman, might, by an ignorant

female, be miscalled a right of
dower ; but what is more material,
if the receiiJt does not apply to
this legacy, it would be wholly
without upplieation. It is upon
these grounds, that we are strongly
inclined to the opinion, that if it
stood upon the construction of the
receipt alone, taken in connection
with the will, it must be considered
a payment on account of this
legacy, without reference to the
declarations of the testator.

" But the ground upon which
the court decide the cause is this.
Whatever may be the difficulties,
in applj'ing the rule, which pro-
hibits the admission of parol evi-
dence to alter or control a written
instrument, there is one modifica-
tion, which will sanction its admis-
sion in tlie present case. When-
ever an act is done, the declarations
of the party doing it, made at the
time, are received to show the
character of the act, and the pur-
pose and design with which it is
done. It is readily conceded, that
it would not be competent to give
in evidence the declarations of the
testator, showing that he intended"
by any clause in his will, some-
thing different from the disposi-
tions expressed, or to limit or
control the legal inferences or pre'-
sumptions arising from those ex-
pressions. Nor would it be admis-
sible to show such declarations
alone, to prove a direct intent of
the testator to revoke or adeem a
legacy. It would be, in either case,
to make or revoke a will by parol ;
which is alike contrary to the gen-
eral rule of law, and to the Statute
of Frauds. But when an act is

EX PARTE PTE. — CHANCEY's CASE.

807

done, which, if done with one intent,
will operate as an ademption, and
if with a different intent, otherwise,
under the rule already stated, evi-
dence of the declarations of the
intent may be given, to qualify
the act, and the act operates by
way of ademption. Here the de-
clarations made at tiie time of the
advance and payment of the mo-
ney, not being contradictory to
the receipt, but in conformity with
it, prove conclusively, that they
were made in part satisfaction of
this legacy. Besides, if it were
necessary to resort to that princi-
ple, it is a well-established excep-
tion to the general rule, excluding
parol evidence to explain and con-
trol a written instrument, that a
receipt for money may be so ex-
plained and controlled

" But there is another fact, stated
in the case, which it seems compe-
tent to show by parol evidence,
and which leads to the same con-
clusion. It is stated, that the tes-
tator expressed his desire to the
plaintiff, at the same time, to pay
off the legacies to his brothers and
sisters i'n his lifetime, and that he
offered to pay her the balance of
her legacy which she declined re-
ceiving. What is the inference
from an offer to pay the balance,
except that part was already paid ?
On the whole, we are satisfied, that
the evidence, to the extent of
showing the intent and purposes
of the payment, was admissible,
and being admitted, it proves con-
clusively, that it was a payment
on account of this legacy.

" As to the objection, that at the
time of the payment, the plaintiff

was SL feme covert, we are of opin-
ion, that it does not vary the re-
sult. It is very clear, that the
plaintiff's husband, having died
before the testator, had no interest
in this legacy. The only ground,
therefore, is, that the plaintiff was,
at the time of the payment, under
the disability of coverture. But
we have seen that ademption de-
pends solely on the will of the tes-
tator, and not at all upon the
ability of the party receiving to
give a valid discharge. Had the
money been paid to trustees or
others for her benefit, without any
act or consent of hers, if giveii ex-
pressly in lieu or in satisfaction
of such legacy to her, it would
have operated as an ademption.
Had he purchased a house or other
property in her name, and for her
benefit, with the like intent and
purpose expressed, it would have
had the same effect. The circum-
stance of her disabilitj-, therefore,
at the time of the payment, is not
inconsistent with the testator's in-
tent in making it, to advance and
satisfy the legacy to her, nor does
it affect the efficacy of such pay-
ment as an ademption. The bal-
ance of the legacy having been paid
into court, nothing remains due,"

It might be inferred from the
language held in this case and in
Hopwood V. Hopwood, ante, that
ademption results from a change
of purpose, and will ensue where-
ever it appears from the testator's
acts or declarations, that he in-
tended to substitute a gift for the
bequest. If this were true it would
apply although the legacy were
from a stranger, or the gift not

803

lATISFACTlON. — ADEMPTION.

ejusdem generis. Yet it will
hardly be contended that a legacy
from one who is not under a pa-
rental obligation, can be adeemed by
a donation which is not accepted or
enjoyed by the legatee, or that
where the relation of parent and
child does not exist, the mere exe-
cution of a covenant to settle an
amount answering to that be-
queathed will preclude the cove-
nantee from claiming under the will.
The covenant in Hopivood v. Hop-
wood, was an express and irrevoc-
able undertaking to give the portion
which was presumably the object of
the bequest, and ademption fol-
lowed not because the intention
had been altered, but because it had
been carried a step nearer to fulfil-
ment. The case is not therefore
an authority for the position, that a
legacy bequeathed for one purpose
will be adeemed by a gift intended
for a different purpose, however
clearly it may appear that the tes-
tator meant the gift to take the
]Tlace of the bequest. If, as in
Michards v. Humphrey a, and
Kirk v. Eddowes, the legatee re-
ceives the gift in payment of the
bequest, it is necessarily dis-
charged ; if he does not, he cannot
claim both benefactions, but may
take which of them he will.

E.rtrinaic Evidence.] In con-
sidering the admissibility of parol
evidence in cases of this descrip-
tion, it seems proper to advert to
a distinction which has sometimes
been overlo 'ked. The object of a
legacy must be sought in the lan-
guage of the will, with the aid of
such light as may be derived from
the testator's circumstances and

position in life, and the relation
which he holds to the object of
his hounty, ante, 674, but the pur-
pose of a gift, and whether it is or
is not intended as an advancement,
or to satisfy an aiitecedent be-
quest, may be shown by the don-
or's acts and declarations, and
does not ordinarily admit of being
proved in any other way; see Lang-
don v. Astor's Ex'rs, 16 N. Y. 11
Giir.'i Estate, 1 Parson's Eq. 1.39
Parks V. Parks, 19 Maryland, 323
Cecily. 06017,20 Id. 153; Laivson's
Appeal, 11 Harris, 85 ; ante, 806.
In this regard the satisfaction of a
legacy depends on rules which are
nearly the same as those which ap-
ply in the case of a debt, or if
tliere be a difference it is against
the legatee, whose claim is derived
from the testator's bounty ; see
Bichards v. Humphreys, 15 Pick,
1.33 ; Kirk v. Eddowes, 3 Hare,
509. If he accepts a gift or ad-
vancement knowing that it is de-
signed to fulfil a testamentary
provision, there is a tacit agree-
ment which may be set up as a de-
fence by the executors ; Kirk v.
Eddoives, 3- Hare, 509 ; Jones v.
Mason, 5 Randolph, 511 ; Howze v.
Mallett, 4 Jones Eq. 194^ if he
has no such information at the
time, and obtains it afterwards, it
will then be incumbent on him to
chose between the donation and
the legacy, and as he cannot con-
scientiously claim both, it follows
that the legacy is equitably paid
in full or in part.

A chief difference between the
case where the legatee is, and
where he is not acquainted with
the donor's purpose at the time of

EX PARTE PYB. — CHANCEY S CASE.

809

accepting a gift which is not of the
same kind as the bequest, is that
in the one, satisfaction will not go
beyond the value actually received,
while in the other, it may extend
as far as the agreement of the
parties carries it.

The cases may be ranged under
three heads. 1st. Where extrinsic
evidence is adduced to show the
])iirpose of the bequest. 2d. Where
it is adduced to show the purpose
of the gift. 3d. Where the ob-
ject is to prove that a gift for a
different purpose, was intended to
he in lieu of the bequest.

It is generally conceded that
the testator's declarations, cannot
he received to contradict the pur-
pose set forth in the will, or even
as it would seem to show the pur-
pose of a testamentary provision
where none is expressed. This
results not only from the general
rule with regard to written instru-
ments, but from the provisions of
the statute of wills. It cannot, for
instance, be shown by parol, that a
peouniarj' legacy has been adeemed
by the purchase of a house, unless
the legacy is expressly bequeathed
for that end, although if this
appeared on the face of the will,
ademption would be the prima
facie if not irrefragable inference.

In considering the second bead,
it is necessary to distinguish be-
tween the cases where a bequest
from a parent is followed by a
gift fijusdem generis, and those
where -the gift is of a ditferent
kind, or where the parental rela-
tion does not exist. Where one
who has bequeathed a pecuniary
legacy to a child gives him a like

amount, two questions arise, was
the bequest intended as the child's
share or portion, is such the na-
ture of the gift ? The inference
that the legacy is a portion, is
drawn by the Court from the re-
lation between the parties, but
being one of fact, or in the words
of Lord Thurlow, of " evidence "
it may be rebutted by the testa-
tor's declarations or other extrin-
sic proof, and the door being once
thrown open, parol evidence may
be adduced to corroborate the pre-
sumption, owte, 769; see Powell Y,
Cleaver, 2 Brown C. C. 499;
Trimmer v. Bayne, 7 Vesey, 516 ;
Pole V. Lord Somem, 6 Id. 309,
326 ; Zeigler v. Eckert, 6 Barr,
13 ; iSt'ms v. Sims, 2 Stockton's
Ch. 158, 163 ; Brady v. Gubitt, i
Douglas, 30, 39. Whether the
gift is an advancement, or in
other words, an anticipation of the
whole or a part of that to which
the donee will be entitled at the
parent's death, is essentially a
question of fact, to be solved by
an attentive consideration of the
circumstances, and of what is said
and done on either side ; see Law-
son's Appeal, 11 Harris, 85 ;
Parks V. Parks, 19 Maryland,
323 ; Cecil v. Cecil, 20 Id. 153.
If it appears in view of all the evi-
dence, that both benefactions, that
inter vivos, and that conferred by
the will, are the same share or
portion, the bequest is adeemed,
through the fulfilment of the pur-
pose for which it was made.

Thus far the authorities agree.
The difierence is as to whether the
testator's declarations can be given
in evidence to show that a gift

810

SATISFACTION. — ADEMPTION.

which is not ejusdem generis, was
intended to be the legatee's share
or portion, and therefore, an
ademption of an anterior bequest;
as where one who has bequ£athed
stocks to a child, subsequently
gives him monej', or vice versa.
Here there is no difficulty in infer-
ring that both benefactions are
portions, because the law deduces,
the conclusion in the one case,
and it may be established by parol
in the other ; the difficulty is that
the gift does not appear to be of
the same portion as the bequest.
It may therefore be necessary to
determine whether the testator's
entries or declarations, are admissi-
ble to prove that he intended the
gift like the legacy to be in full
of his obligation to provide suit-
ably for the child, and the ques-
tion should seemingly be answered
in the affirmative where they are
cotemporaneous with the gift,
although not communicated to the
legatee. In like manner where the
purpose of a legacy from a stranger
appears in the will, as, for instance,
that it is to establish him in life by
procuring him a situation, the court
may take what the testator said or
wrote at the time of making a
subsequent gift, into view in de-
termining whether it was intended
as a fulfilment of the bequest ; see
Weall V. Bice, 2 Russell & Mylne,
251, 263; Lloyd v. Harvey, lb.
310 ; Richards v. Humphreys, 15
Pick. 133.

If we now turn to the third liead,
that where the gift does not fulfil
the purpose appearing in the be-
quest, parol evidence is confess-
edly inadmissible to show that

both were for the same purpose
contrary to the will, but the execu-
tors may, notwithstanding, prove
that the legatee received the gift in
satisfaction. Thus if one who has
given a pecuniary legacy, conveys
a house to the legatee in lieu of
the bequest, and it is so received
by him, the legacy will be satisfied
though not adeemed.

It results from what has been
said that contemporaneous declara-
tions may be received to show
that a gift was intended to be as
an advancement on account of
the sum bequeathed in the will.
What one says in making a pay-
ment or doing any other act, is
part of the transaction, and must
be taken into consideration in de-
terming the eflfeet; see Kirk v.
Eddowes ; Richards v. Humph-
reys, 15 Pick. 133; Langdon v.
Astor's Execvtors, 16 N. Y. 9, 30.
The right to put subsequent de-
clarations in evidence is not so
clear. " An entry" said Denio, C.
J. in the case last cited, " made at
the time of a voluntary gift or en-
dowment which does not require
any consideration, or an under-
taking on , the other side, and
where the only inquiry is as to the
intent of the donor, is of the es-
sence of the transaction, and in the
absence of evidence to contradict
it, characterizes the nature and
object of transfer. It seemed nec-
essary to say thus much to distin-
guish the entries provided for in
the codicil from a memorandum
which might be used to declare the
intention of a past transaction. I
concede that a testator could not
in his will reserve a right to

EX PAKTE PTE. — CHANCBY S CASE,

811

qualify by an unattested writing, a
transaction which had already past
and taken effect, or which was the
act of another person, so as by
means thereof to affect legacies or
other provisions in his testament-
ary papers."

The distinction between cotem-
poraneous and subsequent decla-
rations is just within certain lim-
its, but it should not be carried
too far. Where the bequest is from
a parent, and a subsequent gift of
the same kind is an advancement,
the law infers that it fulfils the
purpose of the bequest. Whether
such is the purpose of the gift de-
pends on the donor's intention ;
and it would seem that in arriving
at a conclusion on this head what
the testator says afterwards may
he taken into view, though it is
entitled to less weight than his
utterances at the time. Although
the character of an act cannot be
changed by a subsequent declara-
tion, it may be explained.

In like manner, the ex parte de-
clarations of a parent, are admis-
sible to show that a gift to a child
is an advancement, and as such
adeems an anterior bequest. For
as ademption results from the ful-
filment of the will, and irrespect-
ively of the assent of the legatee,
so it will take place although he
is ignorant of the testator's pur-
pose in making the gift.

The question is more complica-
ted where a bequest is alleged to
have been satisfied by a gift of a
different kind, or from one who is a
stranger to the legatee. Satisfac-
tion must ordinarily be the fruit of
agreement ; and what either party

intends is irrelevant, unless it is
communicated to the other, and
assented to by him. But a chan-
cellor will not suffer a benefaction
to be enjoyed without complying
with the condition on which it was
bestowed. If a debtor were to re-
quest the creditor to accept a
horse as payment, the creditor
could not keep the horse and en-
force the debt, although the letter
containing the request miscarried,
and he accepted the horse believing
it to be intended as a gift. In the
case thus supposed, the creditor
would be a volunteer (see vol. I,
notes to Ellison v. Ellison) ; but
his refusal to carry out the debt-
or's purpose would give rise to a
failure of consideration, rendering
it incumbent on him to make res-
titution, or account for the value
of the horse. The principle is not
less applicable where a testator
gives value in any form to a lega-
tee, intending that it shall be in
lieu of the bequest. The case is
nevertheless one for compensation
rather than forfeiture ; and all that
can reasonably be required of the
legatee is that he shall not demand
the legacy without crediting the
estate with the gift.

There is more doubt as to the
right to rely on the subsequent
declarations of the testator, in
proof of the satisfaction of a be-
quest as distinguished from its
fulfilment or ademption. Such
evidence would be inadmissible as
between debtor and creditor, but
the rule is not necessarily the
same in the case of a legatee,
whose claim being merely gratui-
tous, and derived frbm the testa-

812

SATISFACTION. — ADEMPTION.

tor's bounty, will fail when the cir-
cumstances are such, that it can-
not be enforced consistently with
equity and good conscience. If
one, who is under an obligation
ex contractu, sees fit to put that
which might operate as a payment,
in the form of a donation, he cannot
ask that his ex parte declarations
shall be received to vary the right
which he has conferred. The cred-
itor is entitled to the debt, and he
is also entitled to the gift, and as
both demands are indefeasible by
the debtor's act, so they cannot be
affected by what he says. But the
case of one who pays the amount
of a bequest to the leL'atee, without
indicating whether he means to
confer an additional benefit, or to
execute tlie provisions of the will,
is so far different that he may re-
voke the will, although he cannot
recall the gift. If, therefore, it
appears unequivocally that he in-
tended to satisfy the legacy, his
purpose should not be allowed to
fail, because it was not made
known at the time. This is the
more just, because a creditor who
is required to treat that- as a paj^-
ment, which he has received as a
gift, may say that a well founded
expectation is frustrated, while no
such complaint can be made by a
legatee.

All the authorities concur that
parol evidence is admissible to re-
but the presumption that a gift or
advance to a child was intended to
satisfy a legacy previously be-
queathed to him by will ; Ziegler
V. Eckert, 6 Barr, 13 ; see Pole
V. Lord Somers, 6 Vesey, 309,
326 ; Timber-lake v. Farrish's

Ex'r, 5 Dana, 346 ; Clendening
V. Glymer, 11 Indiana, 155; Sims
V. Sims, 2 Stockton's Ch. 158,
163 ; and it follows that when such
evidence is adduced, it may be
met or countervailed by other
proof of the same kind. In Sims v.
Sims, the Chancellor said, " in the
instance of parent and child, equity
raises the presumption that the
legacy is intended as a portion,
whether the will so expresses it or
not. If afterwards, the parent
advances a portion to the child,
the legacy is satisfied, the advance-
ment and legacy being for the
same purpose ; parol testimony is
admitted, therefore not to raise
but to confirm a presumption."
Roper on L. 212-3-4, and cases
there cited. In 2 American Lead.
Cases 436, the cases are collected
and the admission of such testi-
mony seems to be verj- firmly set-
tled upon authority. In Gres-
ley's Eq. Ev. 213, it is said, " the
reason is shortly this, if a person
who has inserted in his will a
legacy for a particular purpose,
afterwards executes that purpose
himself in his lifetime, he is pre-
sumed to have intended to cancel
the legacy which is consequently
held to be adeemed. Secondlj-, a
father, leaving a legacy to a child,
is presumed to have intended it
for the particular purpose of ful-
filing his moral obligation of por-
tioning that child. It follows that
parol, or any other kind of extrin-
sic evidence, may be adduced to
prove that he did, or did not, in-
tend to cancel it.

In this case it only became ne-
cessary for the executor to offer

EX PARTE PTB.

■CHANCEYS CASE.

813

parol evidence in answer to that
which the complainant introduced
to rebut the presumption -vvhich
wps in favor of the executor, that
the legacy was satisfied by the ad-
vancement. The case was with
the defendant without his being
obliged to resort to such evidence.
If it was proper for the complain-
ant to overcome this presumption
by parol, it was equally proper for
the defendant to resort to the
same kind of testimony in reply."

The weight due such evidence in
repelling the inference of ademp-
tion, was much considered in
Bebeeze v. Mann, 2 Brown C. C.
166, 529, 531. Lord Thurlow held
that a bond from a father to a puta-
tive daughter whom he treated as a
child, did not operate as an entire
or partial ademption of a previous
legacy of a larger sum ; the pre-
sumption that the bond fulfilled the
purpose expressed in the bequest,
being repelled by his declarations
that this was all that he could
do then, but that there would be
more at his death. This decision
seems to have been influenced by
the idea which was finally dis-
carded in Pyni v. Lockyer, 5
Mylne & Craig, 27, that ademption
is necessarily in full.

Republication. — It is well set-
tled under the authorities, that the
republication of a will by a codi-
cil, does not revive a bequest
which has been revoked, adeemed,
or satisfied ; and it is immaterial
as it regards the application of this
principle, whether the ademption
is by tlie actual gift of value, or
by the execution of a covenant
which is not to be performed until

after the testator's death ; see
Hopwood V. Hopwood, ante, 186 ;
Miner v. Atherton's Ex'rs, 11
Casey, 528, 531; Howzev. Mallett, 4
Jones Eq. 194 ; Langdon v. Astor's
JEx'ors, 3 Duer, 16 New York, 9,
ante, 663, 757.

In Howze v. Mallett the court
held that the law of North Caro-
lina had not been changed in this
regard by the act of 1844, pro-
viding " that no conveyance or
act subsequent to the execution of
a will of real or personal estate,
except revocation, shall prevent
the operation of the will with re-
spect to such estate or interest, as
the testator shall have power to dis-
pose of by will ;" and also that " a
will shall be construed to speak
and take effect as if it had been
executed immediately before the
testator's death." Ruffin, J., said :
" It has been settled that republica-
tion makes a will speak from that
time, and that a codicil referring
to the will amounts to republica-
tion, so that such a case is the
same in principle as this is under
the statutory provision that the
will shall speak from the death of
the testator, yet it is settled under
the authority of Powys v. Mans-
field, that although republication
would make a will speak from that
time, for the purpose of passing
after purchased lands, it would not
for. the purpose of reviving a
legacy revoked, adeemed or satis-
fled. Republication does not undo
the acts by which a legacy has
been adeemed or satisfied, but only
acts upon the will as it exists at
the time of the republication, when
the legacy is no longer an opera-

814

SATISFACTION. — ADEMPTION.

tive part of the will. In other
woi-ds, the legacy stands in the
■will, but it stands there as a satis-
fied legacj'. The same reason is
precisel}' applicable to those parts
of our statute which touch the
operation ol wills, and the time to
which their operation is to be re-
ferred. The bill to enforce the
payment of the legacj"^ must be dis-
missed." A like statute received
a similar interpretation in Langdon
V. Astor''s Ex^ors, 3 Duer, 16 New
York, 9.

Prior Advancements. — The
authorities, agree that an advance-
ment cannot operate as a satis-
faction of a subsequent legacy, al-
though the testator declares at tlie
execution of the will, or after
wards, that such is his design,
unless it is proved to have been
communicated to the legatee and
assented to by him, under circum-
stances rendering it a fraud on his
part to claim the whole amount of
the bequest ; Zeiter v. Zeiter, 4
Watts, 212 ; Krider v. Boyer, 10
Id. 54. In Zeiter v. Zeiter, Gib-
son, C. J., said that the testator's
parol declarations, previous, or sub-
sequent to the will, or contempo-
raneous with it, were admissible to
rebut equities or implied trusts ;
although eotemporaneous declara-
tions were of more account than
those made subsequently, and pre-
cedent of less weight than either.
Hence such evidence might be re-
ceived to show that an advance-
ment by a parent was not intended
as an ademption of a prior be-
quest to the child, and the better
opinion was, that a subsequent
transaction might be shown by

such means to have been intended
as an advancement. But the tes-
tator's declarations could not be
received to rebut an express be-
quest, or what came to the same
thing, to show that it was satis-
fied by a transaction which oc-
curred before the making of the
will.

In Krider v. Boyer, the testator
lent $123 to his son-in-law, Isaac
Krider, and took his note. He
subsequently made a bequest to
his daughter Catharine, Krider's
wife. She died many years after-
wards, without having made any
claim under the will, and her ad-
ministrators then instituted pro-
ceedings to recover the legacy.
The defence proved that the tes-
tator had declared on several occa-
sions after the making of the will,
that he did not consider the loan
to Krider as a debt, but as a gift
to him, which was to go in satis-
faction of the amount subsequently
bequeathed to his wife. Kennedy,
J., said, the money was not given,
but lent to Krider, and became a
debt from him, which might un-
doubtedly have been appropriated
to the paj^ment of the legacy, by
an agreement between the testator
and Krider, or Krider's wife. But
the testator could not adeem the
legacy by an oral declaration, i\or
could he by such means forgive
or discharge the debt. The one
would be a parol revocation con-
trary to the statute of wills ; the
other not less contrary to the rule
of law that delivery or a consid-
eration is essential to the creation,
transfer, or extinguishment of a
right. In Flower's Case, A. hav-

EX PARTE PYl

■CHANCEY'S CASE.

815

ing borrowed a hundred pounds of
B., brought it at the day of pay-
ment in a bag, and cast it on the
table before B., when B. said to A.,
being his nephew, " I will not have
it ; take it you, and carry it home
with you." This was held a good
gift bj' parol, because the money
being cast on the table, was con-
sidered then as in the actual pos-
session of B., and that A. might
well have waged his law. But the
court said it would have been oth-
erwise if A. had only offered it to
B., for then it would have been a
chose in action, and could not
have been given without writing.
If the testator had at any time
after the execution of the will,
given up the note to Krider for the
purpose of being cancelled, such
an act on his part would have oper-
ated as a subsequent advancement
equalling the amount of the debt,
and might, if so designed, have
satisfied the legacy. But no such
effect would follow from an intent
declared, but not carried into effect
by any appropriate act. Where a
parent makes a provision for a
child by his will, and afterwards
gives to such child a portion in
marriage, if a daughter, or paj'S a
sum of money for establishing him
in tiie world, if a son, the legacy
is held to be adeemed ; Hartop v.
Whitmore, 1 P. Wms. 681 ; and in
such cases, parol evidence of the
testator's declarations is admissi-
ble to show that the advancement
was intended either to bean ademp-
tion of the legacj', or satisfaction
of it pro tanto.

Accordingly, in Bigleston v.
Grubb, 2 Atkyns, 48 ; where a bill

was brought for a legacy of 500
pounds by a husband in the right of
his wife, given her under the will of
her father, notwithstanding he had
received of the testator in his life-
time 500 pounds as a portion,
parol evidence was admitted to
show that the father gave the 500
pounds to the husband, in full of
what he intended for his daughter
under his will. Also, in Moswell
V. Bennett, 3 Atkyns, 77, where B.
having by his will given all his
real and personal estate equally
among his children, and at the con-
clusion of it directed his executors
to lay out a sum not exceeding
300 pounds in putting out the de-
fendant, his son, apprentice ; and
B. in his lifetime afterwards laid '
out 200 pounds in putting out the
defendant, clerk to a person in the
navy office, and died without re-
voking his will, evidence was al-
lowed to be read of the testator's
declarations that his advancement
should be taken as an ademption
of the legacy. But then this can
only be where the will is made
anterior to the advancement, for
without a will in being there can
be no legacy, and consequently the
advancement can have no relation
to, nor take away that which does
not exist. Such are the cases re-
ferred to, as also all others on the
subject, going to establish the
same principle. In cases of in-
testacy, however, as the intestate
laws are in force at all times as
long as no wills are made, ad-
vancements may be made hy a
parent with a view of giving to
his children some portion at least,
if not the whole, of what would

816

SATISFACTION. — ADEMPTIOJT.

be coming to them of his estate
after his death, according to the
intestate laws of the common-
wealth regulating the descent of
his real, and the distribution <if
his personal estate. But if a
parent make advancements to one
,or more of his children, and after-
wards makes his will, disposing of
the whole of his estate among his
children, without taking any notice
of the advancements so made by
him, it is conceived that each child
will have a right to claim what-
ever is given to him or her by the
will, without being liable to any
abatement or reduction whatever,
on account of such advancements,
however great they may have been ;
because such is the legal effect of
the last will of the testator, re-
duced to writing, which cannot be
altered or changed by any subse-
quent verbal declarations, made by
him as it would be contrary to the
act regulating the making of wills."

It is clear under these decisions,
that the declarations of the testa-
tator or the entries in his books,
cannot be adduced as proof that
prior gifts or advancements are to
be taken into view in computing
the share of a child under the will,
or deducted from the amount to
which he is entitled, agreeably to
the letter of the bequest ; YundVs
Appeal, 1 Harris, 515.

Ademption results from the ful-
filment of the purpose expressed
in the legacy, satisfaction from the
substitution of something else for
the original design, and hence
neither can be predicated of an
act which antedates the will. Con-
ceding that parol evidence is

admissible to show the gilt was
originallj- meant to be in full of
the donee's share or portion, the
subsequent making of the bequest
indicates a cliange of purpose,
which cannot be controlled or
modified by parol consistently
with the statute of wills.

A will which depends for its
effect on a writing which is not
executed as the statute of wills re-
quires, is invalid ; see Clayton v.
Lord Nugent, 13 M. & W. 200 ;
Johnson v. Ball, 21 Law Journal
B. N. S. Ch. 210 ; Habergham y.
Vincent, 2 Vesey, Sr. 206 ;
Brown's Ch. 353 ; Langdon v.
Aslor's Ex'rs, 3 Duer. 4YT, 580;
16 New York, 9. If, for instance,
a testator were to direct that his
estate should be distributed after
his death among the persons, or in
amounts specified in his books of
account, the instrument would be
void on its face for uncertainty, and
the books could not be resorted to
for the purpose of supplj'ing the de-
fect ; see Clayton v. Lord Nugent ;
Langdon v. Astor's Hx^rs. But
this rule does not preclude one who
is making a testamentary provision
for his children, from directing that
the advancements made to any of
them, whether before or after the
making of the will, and so charged
in his ledger or the memoranda
kept by him, shall be deducted
from the share of such legatee, be-
cause the reference is primarily to
an extrinsic fact, and the entry
merely the mode by which the
nature and extent of that fact
are to be ascertained ; see Lang-
don V. Astor's Exr's ; Yundt's
Appeal, 1 Harris, 515, 519. The

EX PARTE PYB. — CHANCEy's CASE.

817

question arose but can hardly
be said to have been determined
in Musselman^s Estate, 5 Watts,
9. The will tli^re contained a
clause reciting that the testator
had " kept an account of the ad-
vancements made to his children
respectively, to which reference
must be had in making the fol-
lowing division, and so much as
shall at my death stand charged
against any child, shall be esti-
mated as part of the share allotted
to him; each child to receive as
much as shall make him equal to
that one of the seven which has
received most." He then went
on to say, " this being done,
and the several legatees being
made equal therein, the residue of
my estate shall be divided into
seven shares and distributed
among my children." It appeared
in evidence that one of the lega-
tees, Mary Spottswood, had re-
ceived an amount from tlie testa-
tator, which he had charged to heV
by an entry whiclx was still stand-
ing in his books at his death, al-
though the money was repaid be-
fore the execution of the will. The
court held that the ruling purpose
of the testator, as declared in the
will was to produce equality of
distribution, and particular ex-
pressions which stood in the way
of the attainment of this object
should be construed in subordina-
tion to it, or disregarded. Tlie
words " so much as shall stand
charged at my death," were not
intended to give effect to a charg?
which had ceased to be just,
through a repayment which the

testator had accidentally omitted
VOL. II 52

to credit. lie might, no doubt,
have peremptorily directed that
his books should be conclusive
proof of the state of the accounts
between him and the legatees, but
such was not the intention dis-
closed in the will.

In Langdon v. Astor^s Ex'rs, 3
Duer, 4'?'7, 16 New York, 9; the
testator bequeathed to his daugh-
ter, Mrs. Langdon, the sum of
$100,000 of the debt of the city
of New York for her life, with
the remainder to her issue living
at her death ; and by a codicil to
his will, declared that " inasmuch
as I may make advancements
for persons or purposes provided
for in my will or codicil, it is
my direction that such advance-
ments, if charged in by books,
shall be deemed so much on ac-
count of the provisions in my will
or codicils for such persons or pur-
poses." By a second codicil he
bequeathed to the same daughter,
tlie income during life of $100,000
deposited in the New York Life
Insurance and Trust Companj-,"
the capital to go to her children
on her death, and also, left her
children $100,000 of the debt of the
city of New York, usually called
the " water loan." Subsequently to
the execution of the will and
codicils, the testator transferred
$100,000 city "water stock," and
$100,000 deposited in the New
York Life Insurance and Trust
Company, in trust for the plain-
tiff during her life, and for
her six children at her death, and
on the following day entered the
transaction in his books of ac-
count as " a transfer in trust of

818

SATISFACTION.

ADEMPTION.

property bequeatlied to her, Mrs.
Langdon, in similar items by a
codicil to my will ; " and she was
subsequently charged in the same
booli as debtor for the same stocks.
The Court of Appeals held, re-
Tersing the judgment of the Su-
perior Court, that both the legacies
to the plaintiff, that of $100,000 be-
queathed to her by the will, and
that of $100,000 deposited in the
trust company, were satisfied by
the transfer in trust. Denio,
C. J., said that the legacies were
by tlie terms of the will and cod-
icils, subject to be defeated hy
subsequent advancements charged
in the testator's books. There was
no rule of law, tliat rendered such
a condition inoperative, or that
precluded it from avoiding the
bequest on the happening of the
event. A testator could not de-
clare that a mere entry in his
books, or other entry not attested
according to the statute, should
affect the provisions of his will.
But he might malje a devise con-
ditioned to fail if a certain act were
done by himself, by a third person,
or by the legatee, and the right to
do tliis would imply the right to
prescribe under what circumstan-
ces the act should operate to avoid
the devise. If he could lawfully
provide, that the legacy should
be defeasible by an advancement,
he might also provide that a gift
should not operate as an advance-
ment, unless it was so entered or
described in some memorandum
made by him. The case was there-
fore simply that of a bequest on a
condition, which had talten effect
in defeasance of the bequest.

There can be no doubt, in view
of these authorities, that the testa-
tor ma}' direct that all that his

children have received from him

ft

as an advancement at any time
before his death, shall be deducted
from the amounts bequeathed to
them in his will ; but in determin-
ing what is an advancement under
such a will, regard must be had to
the nature of the act as fixed by
what is said and done at the time ;
Yundi's Appeal, 1 Harris, 575.
In YundVs Apjieal, the will con-
tained the following provision,
" all the remainder of my estate
shall be divided into ten equal
shares, after adding all the ad-
vancements heretofore made by me
to mj' children, and then all .ad-
vancements shall be respectively
deducted from each respective
share." It appeared that tlie tes-
tator had lent $6,000 to his daugh-
ter's husband, and evidence was
adduced of his declarations, that
this amount was to be deducted
from her share under the will.
Bell, J., said that an advancement
was an irrevocable gift from a
parent to a child, in anticipation
of the share to which the child
would be entitled at the parent's
death. The testator's declarations
were not competent to bring a
loan to a son-in-law, within this
definition, nor would such a result
ensue from the admissions of the
legatee.

Satisfaction of Portion by
Legacy — Prima facie, and unless
The contrary is apparent, a pro-
vision for a child by will, is
presumed to be intended as a
means of satisfying or fulfilling

EX PARTE PYE.

CHANCEYS CASE.

819

an anterior covenant or agreement
to make a provision of alike kind ;
Gilliam v. Chancellor^ 43 Missis-
sippi, 43 1 ; Hinchcliffe v. Hinch-
cliffe, 3 Vesey, 516; Taylor v.
Lanieer,S Mnrphy, 198; Winn^s
Adm'rs v. Wier, 3 B. Monroe,
648. This is not because a re-
vocable appropriation, can under
ordinary circumstances be su[)-
posed to be intended as a perfoi-m-
ance of an irrevocable contract,
but because both provisions are
presumed to be made in pursuance
of the same parent al obligation, and
therefore identical in purpose ; see
Guignard v. Mayrant. 4 Dessaus-
sur, 614 ; Hinchcliffe v. Hinchcliffe.
In this case the Master of the Rolls
adverted to the difference between
such a case and one where a debt is
alleged to. have been satisfied by a
bequest. " Of all the rules that have
been adopted in this Court, I should
regret the rule that a legacy is a
satisfaction of a debt, provided it
is equal to the debt. That, how-
ever is clearly established ; but
any little circumstances are laid
hold of by the Court, to take it
out of the rule. Tliat is admitted
at the bar not to be the case as to
the doctrine of portions, for if both
have the same object, and there
are only sliglit differences, still
they shall not both avail."

The presumption will not arise,
unless the parties stand in the re-
lation of parent and child, nor un-
less the covenant is voluntary', or
at least not made for a valuable
consideration moving to the cove-
nantor, nor where tlie testamentary
provision is not of the same kind
asthatalready stipulated for; ante,

764 ; see Guignard v. Mayrant, 4
Dessaussure, 614. In Guignard^.
Mayrant, the testator covenanted
to settle the sura of 500Z. on his
wife, in lieu of the fortune which
she had brought him, and many
years afterwards executed a will,
devising land and negroes to a much
larger amount than the debtcreated,
by the marriage settlement. The
chancellor said that the settlement
was not a gift, but a purchase by
which the testator became debtor,
and the wife creditor to that
amount, and the will left no room
for construction, as it emphatically
said that the legacy was in lien of
dower, which if accepted, formed
another and distinct contract.
Thej' were moreover, different in
their nature, one being for the
pajment of monej', and the other
for land and negroes. It followed
that the will and settlement must
both take effect.

The question is nevertheless
one of intention, and if it appears
from the terms of the bequest,
that it is intended as a ful-
filment of the covenant, the lega-
tee must choose between them,
and cannot enforce both ; see
Gilliam!) v. Chancellor, 43 Miss.
43T. In this case the testator
entered into a covenant with his
intended wife, wherein it was stipu-
lated inter alia, that she should
have $5000 from his estate at his
death. The marriage took place,
and the testator died not long
afterwards, leaving a will, wherein
he directed his executors to pay
his debts and see that his con-
tracts were lulfiled, and that his
wife, Mary Ann Gilliam, had a

820

SATISFACTION. — ADEMPTION.

dowry of $5000 in currencj'. The
Court held that Mrs. Gilliam was
not entitled to the benefit of both
the marriage settlement and the
legacy, and that the latter was "pro
tanlo a satisfaction of the former.
It was not a payment in full, be-
cause the testator intended her to
receive the amount, in the currency
of the Confederate States, which
was only worth $250 in the lawful
money of the United States. The
result was, that Mrs. Gilliam was
entitled to recover the amount
which would have been due to her,
if the bequest had not been made,
to wit : the sum stipulated in the
marriage contract.

Satisfaction op Debt by
IjEGacy — It has been seen, that
where one does an act which may
be gratuitous, or the performance
of an anterior obligation, the lat-
ter interpretation will be adopted
as more consistent with the motives
which should govern conduct.
Hence, a legacy by a debtor to his
creditor, of a sum equalling or ex-
ceeding the amount due, is pre.
sumably a payment of the debt.
The principle is the same as that
on which the gift of a portion by
a parent to a child, is reg&rded as
an ademption of an antecedent
testamentarj' provision of a like
kind, ante, 784. The presumptionis
stronger in the latter case than in
the former, because a legacy is
prima facie intended as a gratuity,
and some violence is done to the
common use of language in con-
struing it as a payment ; see 31ul-
herran v. Gillespie, 12 Wend. 349 ;
Strong v. Williams, 12 Mass. 391,
393 ; Horner v. W-Qaughy, 12 P.

F. Smith, 189, 191 ; Byrne v.
Byrne, 3 S. & R. 54, 59. A gift
may more readily be supposed to
be in lieu of another gift, than the
perlormance of a pecuniary obliga-
tion. Accordingly, while a.beqnest
may be satisfied bj' an advancement,
notwithstanding slight or even con-
siderable differences, the court will
not presume that a legacy is in-
tended as a satisfaction of a debt,
unless they are alike in all material
particulars.

It is established in accordance
with this reasoning, that where
one makes an absolute bequest
to his creditor, of a sum which
would satisfy the debt if paid
in the testator's lifetime, the lega-
tee will be put to his election, and
cannot enforce the debt without
relinquishing the legacy, or at all
events without deducting the
amount received on one account,
from any claim, which he may ad-
vance on the other ; Wesco^s Ap-
peal, 2 P. P. Smith, 195 ; Horner
V. MGaughy, 12 Id. 189 ; Perry
V. Blaxwell, 2 Devereux's Eq. 488,
499 ; Ward v. Goffield, 1 Id. 108.
The presumption will not arise
where the legacy is not of the
same nature as the debt, nor where
it is payable on a contingency, nor
where the time' of payment pre-
scribed by the will is subsequent
to that at which the debt would be
paid in the ordinary course of ad-
minstration ; see Byrne v. Byrne,
3 S. & R. 541 ; Van Riper v. Van
Riper, Green's Ch. 1 ; Perry v.
Maxwell ; Eaton v. Benton, 2
Hill, 576. " A legacy is not pre-
sumed to be in satisfaction, if there
be a difference in the nature of the

EX PAKTBPTE. — CHAXCEY'S CASE.

821

debt and legacy, a difference in the
times at which they are payable
respectivelj', or if one be certain
and absolute, and the other con-
tingent ;" Dey v. Willianw, 2 Dev.
& Bat. Eq. 66.

It results from what is here said,
that a specific or general bequest of
chattels, or a devise of land, will
not discharge a pecuniary obliga-
tion ; see Cloud v. Clinkenbeard,
8 B. Monroe, 397 ; Po,rtridge'9
Adm'r v. Partridge, 2 Harris & J.
63 ; Smith v. Marshall, 1 Root,
159. So it will not be presumed that
a legacy is intended to satisfy a
debt which the testator does n ot owe
personally, though it is charged on
his real estate. See Caldwell v.
Richard, 1 B. Monroe, 228.

It was accordingly held in
■Edelen v. DenVs Adrn'r-, 2 Gill &
J. 185, that a legacy payable at a
future day, and coupled with a
charge for the payment of debts,
did not satisfy a debt due at the
testator's death. The court said,
the rule " that a pecuniary legacy,
of an equal or a larger amount, is
a satisfaction of a debt, is un-
deniable ; but it is not an unbend-
ing rule, and not being much
favored, is made to yield to slight
circumstances to be found in the
will ; such as an express devise
for the payment of debts and
legacies, the creation of a fund
for the payment of debts and a
charge of the legacies on that
fund ; or if the legacy be uncer-
tain, and made to depend upon a
contingency (2 Mad. Ch. 42, 43,
44 ; 3 Atk. 65) ; or if the payment
of the legacy be postponed by the
will to a time subsequent to that

at which the debt is due and pay-
able, or if the debt be due at the
time of the testator's death, and
the legacy be not made payable
immediately, but at some future
time; 2 Mad. 44; 3 Atk. 96; 1
Brown, Ch. Rep. 295. In this
case, with the exception that the
legacy is not made to depend upon
a contingency, all these circum-
stances concur. The debt was
subsisting and due before and at
the time of the testator's death ;
there is an express devise for the
payment of debts and legacies,
the creation of a fund charged
with the payment of debts and
legacies, and the legacy in ques-
tion is not made payable imme-
diately on the death of the testa-
tor, but with the other legacies, is
to be paid out of the proceeds of
sales of the real and personal
property, and might in part, at
least, not be paid until long after
the executors by law were bound
to pay the debts, the real property
being directed to be scfld at a
credit of six, twelve, and eighteen
montlis from the time of sale."

The presuraplion is not a favor-
ite with the courts, and will not
arise if there be anything in the
will, or deliors, which denotes a
different intention ; see Horner v.
M'Gaughey, 12 P. F. Smith, 191 ;
Byrne v. Byrne, 3 S. & R. 54.
Thus, where the testator directs
that his debts shall be paid, or
charges them upon his real estate,
the inference is that a bequest to a
creditor is meant to be as it ap-
pears, a gift, and not that it is to
operate as payment; Perry v.
Maxwell, 2 Devereux Eq. 488,

822

SATISFACTION.

•ADEMPTION.

499; Strong v. Williams, 12 Mass.
391, 394 ; Eaton v. Benton, 2 Hill,
576, 587 ; Byrne v. Byrne, 3 S. &
R. 60 ; Van Riper v. Van Riper,
1 Green's Ch. 1.

It has also been held that while
an advancement may satisfy a
legacj' of a greater 'amount, pro
tanto, or even absolutely, if such
is manifestlji- the testator's pur-
pose, a bequest of a less sum than
the debt will not operate even as
a partial payment. If, said Bron-
son, J., in Eaton v. Benton, " the
debt be §100, and the legacy be
also $100, the debt is paid and the
legatee has got nothing by the
gift. But if the debt be one hun-
dred, and the legacy but ninety-
nine, no part of the debt is satis-
iied, and both debt and the legacy
must be paid by the executor."
The rule applies, although the
testator also bequeatlis various
specific articles, which together
with the money exceed in value
the amount due ; Strong v. Wil-
liamx, 12 Mass. 389.

In Strong v. Williams, the ac-
tion was bought on a bond condi-
tioned to pay the plaintiff $333,
within six montlis after the obli-
gor's decease, and also to pay her
$20 annuallj' so long as she should
continue in his family, and to pro-
vide her during the same time
with food, wearing apparel, and
whatever else her necessities might
require. The obligor subsequently
made a will bequeathing the plain-
tiff $300, together with his house-
hold furniture and sundry other
chattels, in consideration of her
long and faithful services. The
aggregate pecuniary value of these

bequests exceeded tlie amount
claimed on the bond. The court
held that the cause of action was
not satisfied. The pecuniary
legacy did not equal the amount
due, and therefore could not be pre-
sumed to have intended to satisfy
the debt, and the specific bequest
not being ejusdem generis, could
not be taken into account in the
absence of a direction that it
should be received in satisfaction-
" The general rule," said Putnam)
J., " anciently established in chan-
cery was, that, when a testator
being indebted, gave to his credi-
tor a legacy equal to, or exceed-
ing, the amount of his debt, the
legacy should be considered as a
satisfaction of the debt. The rule
has been acknowledged in later
cases, bub with marks of disappro-
bation, and a disposition to re-
strain its operation in all cases
where, from circumstances to be
collected from the will, it might
be inferred that the testator had a
different intention ; Haynes v.
Mico, 1 Bro. Cha. Ca. 131. Thus,
where a testator left a sufficient
estate, it was determined that he
was to be presumed to have been
kind as well as just.. So, if the
legacy was of a less sum than the
debt, or of a different nature, or
upon conditions, or not equally
beneficial in some one particular,
although more so in another.

"All the cases agree that the
intention of the testator ought to
prevail ; and that, prima facie at
least, whatever is given in a will
is to be intended as a bounty.
But, by later cases, the courts have
not been disposed to understand

EX PARTE PYE. — OHANCEY 3 CASE.

823

the testator as meaning to pay a
• debt, when he declares that he
makes a gift ; unless the circum-
stances of the case should lead to
a different conclusion.

"Thus, in the case cited for the
plaintiff {Brown v. JDaivson^ 2
Vern. 498), where the wife joined
in the sale of her jointure, and the
husband gave her a note of II.
10s. per annum for her life; and
afterwards, upon another such
sale, he gave her a bond for 6Z.
10s. per annum for her life ; and
he afterwards made his will, and
gave her 14L per annum for life;
the legacy was adjudged to be a
satisfaction for the note and bond.
Here it will be perceived, that the
annuity given in the will amounted
exactly to the sum secured bj^ the
bond and note; and the presump-
tion of satisfaction proceeded
upon the similitude of the legacy
to the debt. 2 Fonbl. 330, in notis.
So, in tlie case of Fowler v. Fow-
ler, 3 P. Wms. 353, the general
rule was applied. There tlie hus-
band, being indebted to the wife
for arrears due by the marriage
settlement, gave her a larger
legacy hy the will ; and it was
held a satisfaction of the debt.
But it is to be observed, that Lord
Chancellor Talbot, expressed great
dissatisfaction with the rule ; and
it does not appear, that any cir-
cumstances could be found to take
the case out of its general applica-
tion. In that case the court re-
fused parol evidence, to prove that
the testator intended both should
be paid.

" But cases of this nature must
depend upon the circumstances;

and there must be a strong pre-
sumption, to induce a belief that
the testator intended tlie legacy as
a payment, and not as a bounty.
2 Fonbl. 332. Thus, where the
testatrix had given her servant a
bond for 201. free of taxes for her
life, and afterwards made her will
and gave her servant 20Z. per
annum, paj^able half yearly, but
said nothing about the taxes, the
court held that both should be
paid. Aikintson v. Webb, 2 Ver-
non, 478. Here the legacy, being
not quite so beneficial as the debt,
did not raise a presumption that
it was intended as a payment.

" So, where the testator, having
sufficient assets, and having mani-
fested great kindness for the lega-
tee, gave a legacy of a greater
amount than he owed, it was
holden by Lord Chancellor Cow-
per, tiiat the testator might be
presumed to be kind as well as
just; and he decreed the payment
of the legacy as well as the debt i
Cuthbert v. Peacock, 1 Salk. 155"
It has been holden, that a legacy
for a less sum than the debt shall
never be taken as satisfaction (1
Salk. 508) ; and that specific things
devised are never to be considered
as satisfaction of a debt, unless so
expressed; 2 Eq. C. Abr., title,
Devises, \<\. 21, cited Bac. Abr.,
Legacies, D.

" So the circumstance, where the
testator had devised ' that all his
debts and legacies should be paid,'
was holden sufficient to take the
case out of the general rule; as,
where the testator, indebted to
his maid servant lOOL by bond for
wages, afterwards gave he 5001.

824

SATISFACTION. — ADEMPTION.

Lord Chancellor King deoreed
that both should be paid, and as
the testator had made provision
for the paj'ment of his debts ; 1
P. Wms. 408, 409, vide note.

" So, where it appeared, that
the legatee had lived with the
testatrix as a servant for twenty
or thirty years, and she had given
her a bond for 260Z., and, in one
month afterwards, she made her
will and gave her 500L ; and, in
another clause, she gave the rest
of her servants 5L a piece, but not
to Jane Oreese^ the legatee ; ' be-
cause,' said the testatrix, ' I have
done well for her before ; ' and
she also made provision for her
debts and legacies. Lord Hard-
wicke thought the circumstances
above stated took the case ont of
the general rule, and decreed the
legacy to be no satisfaction for
the debt; Richardson v. Greese,
3 Atk. 65 ; Nichols v. Judson, S.
P., 2 Atk. 301 ; Clark v. Sewell,
S P., 3 Atk. 97.

" So, where the testator was in-
debted for goods on an open ac-
count, a legacy for a larger sum
was not held a satisfaction, because
he might not know whetlierhe was
indebted or not ; and, therefore,
no presumption was to arise, that
he intended merely to pay a debt ;
1 P. Wms. 299; Powell's Case,
S. P., 10 Mod. 201.

" In the case at bar, tjie con-
sideration for the legacy appears
from the will to have been for the
services of the legatee. A pre-
sumption that the legacy was in-
tended to be a satisfaction of the
bond, also, must rest on the fact,
til at the bond was given for the

same services; of wjiich fact tiiere
is no evidence before us. It may
have been for a different cause.
We can only presume that it was
for a lawful one.

" It appears, also, from the will,
that the testator intended his
debts and legacies should be paid
before his residuary legatees
slioul dtake anything. The pecu-
niary legac}"^ to the plaintiff, also,
is not so much as the debt ; and,
therefore, cannot be considered as
a paj'ment of it. Neither is there
any declaration of the testator,
that the si^eeiflc articles given
should be considered as a satisfac-
tion of the debt. It appears, also,
that there are sufficient assets.

" From a consideration of the
principles and decisions applicable
to this case, we are, therefore all
of opinion that the plaintiff ought
to recover."

The rule that the legacy must
be at least equally certain with
the debt, and alike in every ma-
terial particular, was strictly ap-
plied in Byrne v. Byrne, 3 S. &
E. 54. The testator being in-
debted to his sons Patrick and
Henry Byrne, in the sum of 350L,
by his will, cancelled a debt of
ten thousand dollars from Patrick
Byrne, and at the same time be-
queathed to him "$500," and "no
more." He gave Henry Byrne
some small specific legacies, and
one-fourth of the residue of his es-
tate. The court held that the
cancellation of the debt of $1 0,000,
was not equivalent in all respects
to a devise of so much money, nor
was the debt so discharged, ejus-
dem generis with the demand for

EX PARTE PYB. — CHANCEY'S CASE.

825

which the suit was brouglit,
that being an amount due to both
the sons jointly, while this was the
several obligation of Patrick
Bj-rne. The legacy to Henry
Byrne could not operate as satis-
faction, because it was necessarily
doubtful whether his share of the
residuary bequest would equal his
moiety of the 350L in suit. The
strong probability was that it
would exceed it ; but the amount
was uncertain, and it lay within
the range of human events and
vicissitudes of trade, that the tes-
tator might have died insolvent,
instead of leaving a lai'ge estate.
It was, also, a circumstance that as
there was no deficiency of assets,
he could well afford to be generous
as well as just.

There can be no presumption
of an intent to satisfy a debt which
is not contracted until after the
execution of the will ; and the case
is nearly if not quite the same,
where the consideration is a con-
tinuing one and has not been fully
performed or executed when the
bequest is made. See Strong v.
Williams, Williams v. Grary, 8
Cowen, 246 ; Earner v. Mc-
Gaughij, 12 P. F. Smith, 189. For
a like reason the testator will not
be presumed to have intended to
satisfy a contingent obligation, or
one which is uncertain as to
amount ; Horner v. McGaughy.

In Horner v. McGaughy, the
plaintiff' who was the defendant's
nephew, and had been his ward,
brought a suit to recover the bal-
ance of an unliquidated or running
account extending from March
1861, to February 1866, and

containing items on both sides.
It appeared in evidence that the
defendant bequeathed the sum of
$500 to the plaintiff' by a will
executed in August 1865.

Thompson, C. J., said that the
case did not justify the presump-
tion that the legacy was intended
to be in satisfaction of the debt.
It was as little reasonable to infer
that the testator meant to satisfy
a debt of unknown amount, as
it would be to draw such an infer-
ence where he did not know of the
existence of the debt. It was a
more natural supposition, that liis
Ijurpose was to give a gratuity of
$500, in vifew of the tie of blood,-
and the position which he held as
guardian. The court below was
right in instructing the jury, that
the gift of a legacy under such cir-
cumstances, does not give rise to
a presumption of payment.

It is well settled that one who
renders services to another, in the
expectation of being remunerated
by a provision in his will, cannot
maintain an action, if a bequest or
devise is made in his favor, which
amounts, to a reasonable compen-
sation ; see Jacobson v. Legrange,
3 Johnson, 199 ; Paterson v. Peter-
son, 13 Id.; Eaton v. Benton, 2
Hill, 576, 5Y8; Williams v.
Grary, 4 Wend. 443, 450. In
like manner, where it is expressly
or impliedly agreed between a
creditor and a debtor, that the de-
mand shall be paid by a provision
in the creditor's will, and the lat-
ter subsequently makes a bequest
on the faith of that agreement
which the creditor accepts, he will
be precluded from recovering the

826

SATISFACTION,

AD EMP TION.

debt; Williams v. Crary^b Cowen,
368 ; 8 Id. 246 ; 4 Wend. 443. In
Williams v. Crary the testatrix
boarded in the plaintiff's house,
and was indebted to him on this
and other accounts, in a sum
amounting to $2,400. On the
other hand, she had lent him
$4,000, for which she held his
bond. During her last illness they
talked about a settlement, when the
testatrix said that " she would leave
him enough to pay for his trouble ;
there was a bond which should be
given up to him at her death.
No settlement was requisite ; at her
death he would be satisfied." Her
will executed at or about this time,
contained the following provision :
" Whenever Colonel Williams shall
pay to my executors $1,600, I
order that satisfaction shall be
entered for the mortgage which I
hold against hiin, and his bond
cancelled and surrendered." The
plaintiff paid the $1,600 and re-
ceived the bond from the execu-
tors, and now brought suit against
them to recover the amount due
by the testatrix in her lifetime.
Woodworth, J., said that agreea-
ably to the understanding of both
parties, the debt due from the
plaintiff to the testatrix was the
source to which he was to look for
the payment of his account. There
could be no doubt on the evidence,
that the implied relinquishment of
$2,400 was an appropriation of so
much to satisfy the plaintiff. The
testatrix in substance directed
that the plaintiff should retain
$2,400, parcel of the $4,000 in
his hands, and pay the remain-
der to her executors. This had

been done, and was a full dis-
charge of both demands. It fol-
lowed that he was not entitled to
recover.

It was said in this case, and re-
iterated in Clark v. Bogar-dns, 1 2
Wend. 6'r2, and Eaton v. Benton,,
2 Hill, 576j^ 580 ; that a legacy
' will not be deemed a satisfaction,
of a pre-existing debt unless it
appears to have been the testator's
meaning that it should so oper-
ate ;" and this observation is so
far just that a bequest is prima
facie gratuitous, and should not
be construed as a payment without
some sufBcient ground. Whether
the language of the will is " I give"
or " I bequeath," it equallj' im-
plies an intention to be bountiful,
and not merely to confer that on
the legatee, to which he is already
entitled as of right ; see Eaton v.
Benton, 2 Hill, STB, 578 ; Horner
V. McGaughey. There is never-
theless the countervailing argu-
ment, that one who owes ought to
pay before he thinks of giving,
and hence when a legacy is in all
respects the same as the amount
due, it will be presumed to have
been intended as a fulfilment of
the antecedent obligation, and
not to be merely gratuitous ; ante.

In Van Riper v. Van Riper,
1 Green Ch. 1, the court assigned
the following reasons for holding
that a demand against an adminis-
trator for the distributive shares
of the complainants as next of kin,
was not satisfied by the bequests
to them in his will. " In the first
place the testator directs his exe-
cutors to pay all his just debts;
next the legacies are not to be paid

EX PARTE PYE. — CHANCEY'S CASE.

827

until the legatees severally arrived
at full age. All the cases agree
that a present debt cannot be satis-
fled b3' a contingent legac_y, nor
can there be any reasonable pre-
sumption that the testator intended
to satisfy a demand due at the time
by legacies payable at a future day.
The debt is also in a measure un-
liquidated ; the testator never hav-
ing settled his accounts as adminis-
trator. Moreover, the case is
made stronger from the fact that
the debt was due in his represen-
tative capacity and not in his own
right."

It has been seen that a covenant
bj' a parent to provide pocunia-
rily for a child, is regarded as a
portion, and that if the parent
subsequently advances money to
the child, or makes a similar pro-
vision for him by will, the cove-
nant will be satisfied in the former
case, and the legatee compelled to
elect in the latter ; and it has also
been seen that this presumption
does not apply to a covenant in
consideration of value actually re-
ceived, or by one who is not under a
parental obligation, ante, 819. Such
a covenant is not distinguishable
from an ordinary pecuniary obliga-
tion, and it is consequently subject
to the rule that to render a legacy
a satisfaction of a debt, it must not
only be like, but identical. "Where,
however, thepovenant is to convey
Or settle land, stocks, or chattels,
and property of the kind designated
in the will, is subsequently devised
by the covenantor, and accepted by
the covenantee, satisfaction may be
inferred as in other cases where a
creditor receives value in full of an*

antecedent obligation ; see Bryant
V. Hunter, 3 W. C. C. R. 48.

In Bryant v. Hunter, the allega-
■tion was that a covenant by a hus-
band, to convey land in trust to
secure to his wife the interest of
$5000 during his life, and the prin-
cipal at his death, had been fulfilled
by her acceptance of land which he
devised to her after the execution
of the covenant. The question
is, said Washington, J., " whether
the devise to Mrs. Hare, was a sat-
isfaction or performance in whole,
or in part of the marriage con-
tract, and was accepted ? The
general rule is, that a devise of
land is not a satisfaction, or part
performance, of an agreement to
pay money. But in this case, Al-
exander Hare, by the marriage
contract, bound himself to assure
to the trustees of his intended
wife, a sufficient real or personal
estate, to secure the payment of
5000 dollars for her sole use, in
case she should survive him, or that
he would, by his last will, within
the said year from the date of the
bond, bequeath to her such estate
as should be fully adequate to the
intended provision. He accord-
ingly makes a provision for her
by will, and though not made
within the year, this circumstance
is immaterial ; a will being ambu-
latory. This provision is to all
intents and purposes, a perform-
ance or part performance of the
contract; and, although he does
not so declare in his will, yet, that
he intended it, is not to be ques-
tioned ; for, it is inconceivable that
he should have meant to give, si,s
a bounty to his wife, nearly half

828

SATISFACTION.

•ADEMPTION.

Lis estate, and to have left this
large debt to sweep away the pro-
yision intended for his son. The
reference in the bond to a provis-
ion in land, or other property to
be made bj- will, differs this from
all the cases that were cited ; and,
we must presume, that the will
was intended to complj' with the
condition of the bond. The nun-
cupative will amounts to an ex-
press acceptance of the devise ;
as it disposes of all the property
of every kind, vested in her by
the will of her husband, or other-
wise. This property consisted of
land and personal estate, the lat-
ter very trifling, particularly, after
the plate and other things devised
by her, were deducted. The court
has no authority for limiting her
words to the personal property ;
because the will could not, in point
of law, pass the real estate ; a cir-
cumstance which most probably
she did not know." The turning
point in this instance seems to have
been that the object of the cove-
nant which was to secure the wife,
was as well attained by a devise
to her, as it could have been by a
conveyance to trustees.

The doctrine that a debt from a
parent to a child, is presumably sat-
isfied by a subsequent advance-
ment, was applied in Ki-lly v.
Kelly's Ux'rs, 6 Randolph, 116 ;
although the advancement was
not ejusdem generis. There, one
Kelly received a legacy of $1000,
which had been bequeathed to
his children by a relative, and
subsequently conveyed land to
them of greater value than the
legacy. The deed was accepted

by the grantees, who went into
possession of the land. The court
held, on the authority of Wood
V. Bryant, 2 Atkyns, .521, that
the conveyance must be presumed
to have been in satisfaction of the
amount due by the grantor.

If it was objected that it was a
money debt, and the property con-
vej'ed land, and that therefore the
latter could not be considered sat-
isfaction for the former, the argu-
ment was by no means conclusive.
The question was one of intention
to be ascertained from all the cir-
cumstances. When a child is en--
titled to a portion of 500L bj' will,
and the father afterwards in his
life advances him 500Z., both
sums being the same in amount,
and the same in kind, these are
taken as circumstances tending to
show that the advancement w:is
made in satisfaction of the portion
or legacy. On the contrarj', if the
advancement is land, it is taken as
prima facie, going to show it was
not intended as a satisfaction of
the 500L, they being different
things. But yet these are mere
presumptions liable to be rebutted
and overthrown. For, if it be
made to appear that the father
did not intend the 500L advanced,
to go in satisfaction of the portion
or legacy, it will be no satisfac-
tion, though ejusdem generis, and
if the court is convjuced that he
did mean the land as a satisfac-
tion, it will be so taken, though
not ejusdevi generis.

Forgiveness of Debt by Will.
— A legacy from a creditor to a
debtor may afford ground for an
Argument, that the testator would

EX PARTE PYE. — CHANCEY'S CASE.

829

not have put his estate under a
pecuniary obligation to one who
was indebted to him, if he had not
meant to forgive tlie debt. But,
inasmuch, as this is a mere infer-
ence that a purpose existed, which
lias not been expressed, it will not
he allowed to prevail, unless it is
corroborated by the testator's acts
or declarations, or by circumstan-
ces.

All that can justly be inferred
from such a testamentary provision
is, that the testator did not mean
tbat the executors should com-
pel that to be paid as a debt, which
it would be incumbent on them to
refund as a legacy. A court of
equity may, therefore, to prevent
circuity of action, authorize the
executors to set off the debt
against a demand for the legacy,
or, if the estate be solvent, direct
that they shall give credit for the
legacy in suing for the debt ; see
Clark V. Bogardus^ 2 Edwards
Ch. 387; 12 Wend. 67; Wilmot
V. Woodhouse, 4 Brown C. C. 227.

In Clark v. Bogardus the bill
was filed to restrain an action
brought by the plaintiffs as execu-
tors, on a bond which had been exe-
cuted by the complainant to the
testatrix, for a valuable considera-
tion moving to her daughter, who
was the conplainant's wife. The
bill alleged that no payment had
been made on the bond for six-
/teen, years before the death of the
testatrix, and that she had by her
will bequeathed to her daughter a
larger sum than the amount of the
bond, and relied on these circum-
stances as evidence that the debt
was forgiven or extinguished. It

was held by the Vice-Chancellor,
and afterwards bj'' the Court of
Errors, that there is no presump-
tion of payment from the lapse of
time, short of twenty j'ears, with-
out corroborating circumstances,
which did not exist in the case
under consideration, where the
bond remained in the testatrix's
possession uncancelled at her
death, and she did not discharge
the obligation in her will, as she
presumably would have done if
she had intended to forgive the
debt. Wilmot v. Woodhouse, 4
Brown, C. C. 486. The just in-
ferrence, was that the testatrix
meant that so much of the assets
of the estate as were in the com-
plainant's hands, as her debtor,
should be appropriated to tlie
payment of the legacy. The in-
junction which had been granted
was consequently dissolved.

The question subsequently arose
in the Supreme Court, where a
plea setting forth the circumstan-
ces as a defence to the bond,
was overruled on demurrer. Tlie
Chief Justice said in delivering
judgment : " If a legacy be left
to tlie testator's debtor, the debt
shall be deducted from the legacy,
because the legatees demand is in
respect of the testator's assets,
without which the executor is not
liable, and, therefore, the legatee
in such case is considered by a
court of equity to have so much of
the assets already in his hands as
the debt amounts to, and conse-
quently to be satisfied pro tanto ;
for there can be no pretence to say,
because the testator gives a legacy
to his debtor, it is an argument to

830

SATISFACTION. ADEMPTION,

show that the testator meant to re-
mit the debt: Toller, 338. Mr.
Toller cites Rankin v. Barnard, 5
Haddock's R. 32, to prove that
where a legacy was left to the wife
of A., who was largely indebted to
the testatrix, and A. became a
bankrupt, and his wife afterwards
died, without having asserted any
claim in respect to the legacy, and
the assignee claimed it, it was held
that the executors of the testatrix
were entitled to retain the legacy
in part discharge of tlie debt due
the testratrix. The question also
arose in Rickets v. Livingston, 2
John. Cas. 98, where Radcliff, Jus-
tice, said " a legacy to one who at
the date of the will is indebted to
the testator, does not release or ex-
tinguish the debt, unless it appears
to be so intended on the face of the
will."

In Stagg v. Beekman, 2 Ed-
wards, 89, the testator bequeathed
the sum of $1,000 to the complain-
ant, and afterwards by codicil
made a devise in his favor, which
he subsequently revoked by an-
other codicil, and directed his ex-
ecutors to hold the land, as well as
the $1,000 previously bequeathed,
in trust for the support and main-
tenance of the complainant, with-
out liability to his creditors. The
question was whether a note for
$500, which the complainant had
executed to the testator, for money
advanced between the date of the
will and of the first codicil, had
been impliedlj- forgiven, or was to
be deducted from the legacy of
$1,000 ? It was held that the note
was a subsisting obligation, and
that the executors were entitled

to a credit for that amount in
settling with the legatee. The
Vice-Chancellor said: "At law a
testamentary act cannot operate
as a release of a debt owing to the
testator, while in a court of equity
it may sometimes liave the effect
of extinguishing the debt : Eam.
on Assets, 469. A mere bequest,
however, of a legacy by a creditor
to his debtor is not necessarilj-, or
even prima facie, a release or ex-
tinguishment. The court requires
evidence clearly expressive of such
an intention, before it will give ef-
fect to the act. If this intention
is not expressed or rendered appa-
rent on the fiice of the will, then
evidence aliunde may be admitted
to prove an intention to release or
discharge it : 2 Roper on Legacies,
37, 62, 64.

In the present case the evidence
of such an intention is wanting,
and the contrary is plainly infer-
rible. The amount of bounty is
fixed in the shape of a pecuniary
legacy of one thousand dollars, an
advance of five hundred dollars
afterwards takes place, a note is
given for it, this note is kept in
the testator's pocket uncancelled,
and in the last codicil nothing ap-
pears to show an intention to in-
crease the bounty bej'ond what
was originally contemplated, such,
however, will be the etfect, provi-
ded the complainant can retain the
sum advanced, and also receive
the benefit of the whole orioinal
bequest ; taking the note and pre-
serving it among his papers, are
circumstances which clearly in-
dicate that the testator intended
the advance should remain as a

EX PARTE PTE. — CHANCEY'S CASE.

831

debt against his legatee, and be
deducted and retained by his ex-
ecutors. This they have a right
to do : Jeff V. Wood, 2 P. Wms.
.128 ; Rankin v. Barnard, 5 Mad.
E.32."

It is equally well settled that
the oral or written declarations of
a creditor, cannot operate as a re-
lease or forgiveness of the debt, in
the absence of a seal, and where
there is no valuable consideration
tbat can enure as satisfaction, or
justify the intervention of a court
of equity : Kidder v. Kidder, 9
Casey, 298 ; 1 Smith's Ldg. Cases,
630, T Am. ed. ; and it is immate-
rial as it regards the operation of
this principle, that the intention of
forgiveness is declared during a
last illness, or to the persons who
are named to execute the will :
Byrne v. Godfrey, 4 Yesey, 6.
The case of Weskett v. Raby, 2
Brown, P. C. 386, whicli might
seem to look the other way, turned
on the circumstance that the testa-
tor declared his intention to for-
give the debt, to the executrix at
the time of making a will by
which she was constituted his re-
siduary legatee, thus giving rise
to a constructive trust, which it
was incumbent on her to fulfil.
See vol. 1, 352; Byrne v. Godfrey,
4 Vesey, 610.

It has, notwithstanding, been
held that wliere the inference of
forgiveness drawn from a pecuni-
ary bequest to the debtor, is cor-
roborated by the creditor's decla-
rations at the execution of the will
or afterwards, it may be a ground
for restraining the executor from
proceeding at law : Eden v. Smith,

5 Vesey, 341 ; Ziegler v. Eckert, 6
Barr, 13 ; see Pole v. Lord Som-
ers, 6 Vesey, 309, 823. In Ziegler
V. Eckert, the suit was brought by
the plaintiffs as executors, on seven
bonds, amounting in all to $7,000,
which had been executed by the
defendant to the testator, who was
his uncle.

It was proved at the trial, that
the testator had left the defendant
.1. legacy of $ 1 000, and had declared
repeatedl}' at and before the mak-
ing of the will, that he would have
bequeathed him a larger sum, but
for his intention to cancel the
bonds, and that they should not
be enforced after he was gone. It
was also shown that the testator
during his last illness, and while
making his will, requested the scriv-
ener who prepared the instrument
and brought it to him for execu-
tion, to take the bonds out of his
trunk and put them out of the
way, and tliat he reiterated this in-
junction at the last moment before
his death. Gibson, C J. said that
the presumption that the legacy
was intended to be a clear gratuity,
which was repelled in the first in-
stance by the production of the
bonds, t\ as restored b_y the parol
proof of an intention to release
them, which had been frustrated
b^' accident. There was conse-
quently a distinct ground for equi-
table relief.

This decision was chiefly based
on the authority of Aston v. Pye,
5 Vesey, 350, 354, and of Eden v.
Smith. It may be observed with
regard to the former case, that a
memorandum of the intention not
to exact payment, was indorsed

832

SATISFACTION. — ADEMPTION.

on the promissory note wliich was
the cause of action, and might,
therefore, be regarded as a cancel-
lation. See Garrett's Appeal, 3
Harris, 212 ; Evans' Appeal, 2 P.
F. Smith, 238 ; Warner v. War-
ner, 37 Vermont, 356 ; 2 American
Leading Cases, 491, 5 ed. The
case of £den v. Smith is s , far
different from Ziegler v. Eckert,
that the proofs of the testator's
purpose consisted for the greater
part of memoranda and letters
■written by him, which might
agreeably to Lord Loughborougli's
opinion, have been given in evi-
dence in a suit at law under a plea
of release. In Pole v. Lord Som-
ers. Lord Eldon said, " as to tlie
case of Eden v. Smyth, 1 am not
sufficiently informed upon it to
state whether the evidence was ad-
missible or not. If what is stated
in the report as to the bond from
Sir Frederick Eden to Mr. Smyth,
that the paper produced would
operate as a release, is to be taken
as Lord Rosslyn's opinion, and if
that opinion is right, then certain-
ly it was properly received in evi-
dence ; and the question then is
only whether that opinion is well
founded."

A testamentary provision can-
not operate as satisfaction on
merely legal grounds, or when the
question arises in a suit at law,
and if the defendant is entitled to
relief, it must be sought in a court
of chancery ;-see Clark v. Bogar-
dus, 2 Edwards Ch.387, 12 Wend.
67 ; Stagg v. Beekman, 2 Edwards
Ch. 89. This is very clear where
the defence consists in an allega-
tion, that the testator bequeathed

a legacy, in satisfaction of the de-.
mand whicli the plaintiff seeks to en-
force by suit ; Grary v. Williams,
5 Cowen, 368 : Molony v. Scan-
Ian, 53 Illinois, 122. One cannot,
by an ex-parte act or declaration,
liberate himself from an obligation
arising ex contractu. Such a be
quest at the most affords another
means of pavment, which the credi-
tor may use or neglect at pleasure.
He may therefore proceed to re-
cover the debt in the ordinary
course of law, and the question of
satisfaction does not arise until
the legacy is paid or demanded.
In Molony v. Scanlan, the suit
was brought for a debt contracted
by the testator, and the executors
pleaded that he had bequeathed a
legacy to tlie plaintifi' in satisfac-
tion. The court held that the
legacy must be paid before such a
defence could be available. It was
the dut3' of the executors to satify
the debt, and then if the creditor
demanded the legacy, they could
raise the question whether it was
intended to pay the antecedent
obligation or as a gift.. Such a
conclusion is the more just, be-
cause the obligation of the debt is
absolute, while the right to the
legacy depends on the sufficiency
of the assets.

It is equally well settled, that a
testamentary forgiveness of a debt,
or direction that it shall not be
collected, is not a legal defence,
although a court of equity may en-
join the executors from bringing
suit contrary to the testator's pur-
pose. See Stagg v. Beekman, 2
Edwards Ch. 89 ; Clark v. Bogar-
dus, lb. 387, 12 Wend. 67 ; Hohart

WILCOCKS V. WILCOCKS.

833

V. stone, 10 Pick. 215. This is
not merely because an obligation
cannot be discharged by a writing
without consideration, and which
is not executed and delivered as a
release. One who forgives a debt
by will, virtually bequeaths the
amount to the debtor, who cannot
take advantage of the provision,
unless the testator's assets are ade-
quate to pay his creditors, a ques-
tion which cannot be considered or
determined by a merely legal tri-
bunal, or under the course of pro-
cedure at common law.

A bequest of a debt to the debt-
or, may be an equitable defence to
an action by the executors, by
operating as an assignment of the
amount due ; and tlie same result
may follow from a residuary be-
quest which embraces a debt due
by the legatee, if the assets are
suflBcient for the payment of
testator's creditors and the lega-
cies which he has specifically be-
queathed ; Hohart v. Stone, 10
Piclv. 215. " The gift of a debt by
TV ill, to the debtor, does not oper-

ate immediately as a release, al-
though so denominated, but ratlier
as a legacj' requiring the assent of
the executor, for the obvious rea-
son, that like other legacies it will
not absolutely be available, unless
there be other assets for the pay-
ment of debts ; Rider v. Wager, 2
P. Wms. 331; but when not re-
quired for the payment of debts,
and the assent of the executor is
given, or presumed, such gift
operates by way of release or ex-
tinguishment, to avoid circuity of
action ; Sibthorp v. Moxom, 3 Atk.
580. Were it otherwise, the exe-
cutor would recover the debt to
the use of the debtor himself, and
be bound to repay it to the debtor
himself, which would be useless.
"We can perceive no difference in
this respect, between the release or
gift of a particular debt to the
debtor himself, and a similar gift
or release by a general bequest,
where it is evident from the condi-
tion of the estate, that the debt, if
recovered, would only go to swell
that residuum." Hobart v. Stone.

*\YILCOCKS V. WILCOCKS.'

DE TEEM S. TRINITATIS, 1706.

[*415]

EEPOKTED 2 V.EEN. 558.

Perforjiaxce of a Covenant to purchase and settle an
EsTATi:.] — A. coveiMJits, oh his marriage, to purchase lands of
)i.(j{]l. a ytar ai,d sMle them jor the jointure of his wife, and to the
first and other sons of the marriage in tail. He purchases lands
of that value, but makes no settlement ; and on his death the lands
descend on the eldest son. On a bill by the eldest son for a specific

VOL. II — 53

1 fl. C, 1 Iq. Ca. Ab. 26, pi. 5.

834 PERFORMANCE.

performance of the covenant, it was held that the lands descended
were a satisfaction of the covenant.

The plaintift''s father, upon his marriage, covenanted to pur-
chase lands of 'MOl. per annum, and to settle the same upon
himself for life, and on his wife for her jointure, and to the first
and other sons in tail, remainder to the daughters.

The father, who was a freeman of the city of London, died
intestate, having purchased lands of the value of 200^. per annum
but made no settlement thereof, but permitted them to descend
upon the plaintiff, his eldest son, who now brought a bill foun-
ded on his father's marriage articles, to have 200Z. per annum
purchased out of the personal estate, and settled to the uses iu the
marriiige articles.

Lord Keeper Couper. — The lands descended, being of 200^.
per annum and upwards, ought to be deemed a satisfaction of the
covenant, and decreed it accordingly ;' and that the personal estate
should be divided and distributed amongst the three children ac-
r*41fil *^ording to the custom of the city of London, and the
'■ -^ statute for settling intestates' estates.

One of the daughters having attained the age of seventeen years,
made her will, and devised her personal estate.

Per Cur. — The will is good as to the share that belonged to
her by the statute ; but as to her orphanage share,^ she dying un-
married before twtnty-one, it survives to the other orphans by the
custom, and her will could not take place upon her orphanage
part.

[*417] *BLAXDY v. WIDMORE.*

DE TERM. S. TRIN. 1716.

REPORTED 1 P. WMS. 323.

Performance of a Covenant to leave a Sum of Money by al-
lowing A SUM to devolve BY INTESTACY.] — Covenant by a man,
previous to marriage, to leave his intended wife 620/. The marriage
takes place, and he dies intestate ; the wife's share comes to above
620/. .■ this is a satisfaction.

Upon the marriage of A. with B., there were articles reciting,
that, in consideration of the marriage, and of the portion, it was

' See Ilerne v. Heme, 2 Vern. 555.

^ A child entitled to an orplianage share of his father's estate, dying under
twenty-one, and unmarried, cannot devise it by his will ; for, by the custom, it
survives to the other ohildien ; but lie might, (previous to 1 Vict. c. 36, which
renders the wills of all persons under twenty-one invalid), have bequeathed his
share under the Statute of Distributions.

3 a. C, 3 Vern. 709.

. WILCOCKS V. ■WILCOCKS. — BLANDY V. WIDMORE. 835

agreed that if B., the wife, should survive A., her intended hus-
band, A. should leave B. 620Z.; and accordingly A. covenanted
with B.'s trustees, that his executors, within three months after
his decease, should pay B. 620^. if she should survive him.

A. died intestate and without issue ; upon which B., the wife,
by the Statute of Distributions, became entitled to a moiety of the
personal estate, which was much "more than 620Z.,- and the ques-
tion was, whether the distributive share belonging to B., being
more than tj20Z., should go in satisfaction of it.

Fergeant Hooper. — This 620?. is a debt, and debts must be first
paid, after which the distribution is to be made ; and if the intes-
tate had made a will, probably, he would have given to his wife
something additional to this 620?. Now, what the statute gives
is not his gift, and, being not his gift, is not to be taken as his
payment ; or, supposing it to be his gift, still it cannot be said to
be his payment.

*LoRD Chancellor Cowper. — I will take this covenant r*4iQ-i
not to be broken, for the agreement is to leave the widow '- ^
620?. Kow the intestate in this case has left his widow 620?. and
upwards, which she, as administratrix, may take presently upon
her husband's death ; wherefore, let her take it ; but then it shall
be accounted as in satisfaction of, and to include in it, her de-
mand by virtue of the covenant ; so that she shall not come in
first as a creditor for the 620?., and then for a moiety of the surplus.

And Mr. Vernon said, it had been decreed in the case of Wil-
cocks V. Wilcocks,' Trin. 1706, that if a man covenants to settle an
estate of 100?. per annum on his eldest son, and he leaves lands
of the value of 100?. per annum to descend upon such son, this
shall be a satisfaction of the covenant to settle ; and that this last
was a stronger case, it being the case of an heir, who is favoured
ia equity ; also the case of Phiney v. Phiney"' was cited.

Whereupon the decree^ made by Sir John Trevor, Master of
the Rolls, was now affirmed by Lord Chancellor Cowper.^

Wilcochs V. Wilcocks was decided in accordance with the rule of
equity, that, where a person covenants to do an act, and he does that
which may either wholly or partially be converted to or towards a
completion of the covenant, he shall be presumed to have done it with
that intention. In that case, it will be observed that a person cove-
nanted to purchase and to settle lands of a certain value, and afterwards
purchased lands of equal, or greater value, which descended upon his
heir, and they were deemed a performance of the covenant.

' 3 Vern. 558, ante, 376.
'2 2 Vera. 638.
= 3 Vein. 709.
' And again afBrmed upon a rehearing. Reg. Lib. A. 1715, fol. 873.

836 PERFORMANCE.

The result will be the same where a person, having no real estate,
covenants to convey and nettle, and he afterwards purchases, but does
not convey or settle, real estate: Deacon v. Smith, 3 Atk. 323; and
see Wellesley v. Wellesley, 4 My. & Cr. 561 ; Ex parte Poole, De Gex
Bankruptcy Ca. 581.

Where the lands purchased are of less value than the lands cove-
nanted to be purchased or conveyed and settled, they will be *con-
L -I sidered as purchased in part performance of the covenant : Lech-
mere V. Earl of Carlisle, 3 P. Wms. 211 ; Lechmere v. Lechmere, Ca.
t. Talb. 80 ; Sowden v. Sowden, 1 Bro. C. C. 582 ; 3 P. Wms. 228, n. ;
Gardner v. Blarquis of Townshend, G. Coop. 303 ; and see 4 Ves. 116,
111 ; 10 Yes. 9, 516.

Even if the heir be not a person interested in the performance of the
covenant, the land will be bound in his hands by it (Garthshore v.
Charlie, 10 Ves. 9) ; and it is immaterial whether the estates are to be
purchased within a limited time, and the purchase is not made until
after such time has expired, or at different times, and in small parcels ;
or whether it is to be made with the consent of trustees, and such con-
sent has not been applied for: see Deacon v. Smith, 3 Atk. 329.

The doctrine upon this subject was much discussed in the leading
case of Lechmere v. Harl of Carlisle, 3 P. Wms. 22T, Ca. t. Talb. 80.
There Lord Lechmere, upon his marriage with Lady Elizabeth Howard,
daughter of the Earl of Carlisle, covenanted to lay out, within one 3ear
after the marriage, 6000Z., her portion, and 24,000Z. (amounting in the
whole to 30,OOOZ.), in the purchase of freehold lands in possession, in
the south part of Great Britain, with the consent of the Earl of Car-
lisle and the Lord Morpeth, to be settled on Lord Lechmere for life,
remainder, for so much as would amount to 800Z. a year, to Lady Lech-
mere, for her jointure, remainder to first and other sons in tail male,
remainder to Lord Lechmere, his heirs and assigns for ever ; and Lord
Lechmere also covenanted, that until the 30,000L should be laid out in
lands, interest should be paid to the persons entitled to the rents and
profits of the lands when purchased. Lord Lechmere was seised of
some lands in fee at the time of his marriage, and after his marriage
purchased some estates in fee of about 500?. per annum, and some es-
tates for lives, and other reversionary estates in fee expectant on lives,
and contracted for the purchase of some estates in fee in possession,
and on the 18th of. Jnne, 1727, died intestate, without issue, and with-
out having made a settlement of any estate. None of the purchases
or contracts were made by Lord Lechmere ivith the consent of the trus-
tees. Upon a bill being filed by Mr. Lechmere, the heir of Lord Lech-
mere, for specific i^erformance of the covenant, and to have the 30,000Z.
laid OLit as therein agreed, it was held by Sir Joseph Jekyll, M. R.,
that he was entitled to specific performance, and that none of the land
which was permitted to descend to the heir was to be taken in satisfac-

WILCOCKS V. WILCOCKS. — BLANDY V. WIDMORE. 837

tion or part performance of the covenant. However, on appeal, Lord
Talbot reversed his Honor's decree as to the freehold lands purchased
in fee simple *in possession after the covenant, though with but
part of the 30,000Z., and left to descend, and these were ordei-ed L J
hy the Lord Chancellor to go as a satisfaction pro tanto, or, more co;--
rectly speaking, they were to be considered as bought in part perform-
ance -of tlie covenant. " As to questions of satisfactions," observed
his Lordship (see Sugd. V. & P. Append. 1117, 11th edit.), " where they
are properly so, they have always been between debtor and creditor or
their representatives. As to Mr. Lechmere, / do not consider him as
a creditor, put as standing in the place of his ancestor, and thereby
entitled to what would have vested in jiis ancestor. A constructive
satisfaction depends on the intention of the party, to be collected from
circumstances. But then the thing given must be of the same kind,
and of the same or a greater value. The reason is plain ; for a man
may be bountiful as well as just ; and if the sum given be less than the
debt, it cannot be intended as a satisfaction, but may be considered as
a bounty; and if the thing given is of a different nature, then, also,
as the intention of the party is not plain, it must be considered as a
bounty. But I do not tiiink the question of satisfaction properly falls
within this case, for here it turns on what was the intention of my
Lord Lechmere in the purchase made after the articles ; for, as to all
the estates purchased precedent to the articles, there is no colour to
say, they can be intended in performance of the articles ; and as to the
leasehold for life, and the reversion in fee expectant on the estates for
life, it cannot be taken they were purchased in pursuance of the articles,
because- they could not answer the end of them. But as to the other
purchases (in fee simple in possession, &c.), though considered as a
satisfaction to a creditor, yet they do not answer, because they are not
of equal or greater value. Yet, why may they not be intended as
bought by him with a view to make good the articles ? The Lord
Leclimere was bound to laj' out the money with the liking of the trus-
tees, but there was no obligation to lay it out all at once, nor was it
hardly possible to meet with such a purchase as would exactly isiWy
with it. Parts of the land purchased are in fee simple in possession, in
the south part of Great Britain, and near to the family estate. But it
is said they are not bought with the liking of the trustees. The inten-
tion of naming trustees was to prevent unreasonable purchases, and
the want of this circumstance, if the purchases are agreeable in other
rsspects, is no reason to hinder why the^- should not be bought in per-
formance of the articles. It is objected, that the articles say the land
shall be conveyed immediately. It is not necessary that every parcel
should *be conveyed as soon as bought, but after the whole was
purchased, for it never could be intended that there should be L -'
several settlements under the same articles. Whoever is entitled to a

838 PERFORMANCE.

performance of the covenant, the personal estate must be first applied
so far as it will go, and if the covenant is performed in part, it must
make good the deficiency. But where a man is under an obligation to
lay out 30,000Z. in lands, and he lays out part as he can find purchases,
which are attended with all material circumstances, it is more natural
to suppose these purchases made with regard to the covenant than with-
out it. When a man lies under an obligation to do a thing, it is' more
natural to ascribe it to the obligation he lies under, tlian to a voluntary
act, independent of tlie obligation. Then, as to all the cases of satis-
faction, though these purchases are not strictly a satisfaction, yet they
may be taken as a step towards performance ; and that seems to me
rather his intention than to enlarge his real estate. The case of Wil-
cocks V. Wilcocks (2 Vern. 558), though there are some circumstances
that are not here, yet it has a good deal of weight with me. There the
covenant was not performed, for the estate was to be settled, but the
land was left to descend, and a bill was brought to have the articles
made good out of the personal estate ; to which it was answered, that
the 200^ per annum was bought, which descended to you. It is
true a settlement hath not been made, but they were bought with an
intention to make a settlement, and you can make one. The same will
hold as strong in the present ease, that these lands were bought to
answer the purposes of the articles, and fall within tliat compass ; and
it is not an objection, to say they are of unequal value, for a covenant
may be executed iv part, though it is not so in satisfaction ; and in
this particular I differ from the Master of the Edits. There must be
an account of what lands in fee simple in possession were purchased
after the articles entered into, and so much as the purchase-riioney of
such lands amounts to must be looked on in part satisfaction of the
30,00GL to be laid out in land under the articles, and the residue of the
30,000Z. must be made good out of the personal estate." See als6 Bar-
ham, V. Earl of Clarendon, 10 Hare, 126.

The doctrine has also been extended to a case where the covenant
was to pay money to trustees, to be laid out by them in a purchase of
land. See Sowden v. Soivden, 3 P. Wms. 227, reported in a note of
Mr. Cox; S. C, 1 Bro. C. C. 582, 1 Cox, 165. In that case, by mar-
riage settlement, reciting that B. S. had actually paid to the trustees a
sum of 1500^, and had also agreed to pay tliem a further sum of 500?.
at least *upon the trusts after mentioned, he the said B. S. cov-
L "'"'J enanted with the trustees that he would, within six months, pay
the said further sum of 500L at the least, which said sums of 1500/. and
500L were to be applied in.the manner thereinafter mentioned. And it was
thereby declared, that the said sums of money were so paid, and to be paid,
upon trust that the said trustees should, as soon as conveniently might be,
with the consent of the said Jt. S., lay out and invest the same, either to-
gether or in parcels, and together, with or without any further sum to

WILCOCKS V. -WILCOCKS. — BLANDT V. WIDMORE. 839

be advanced by the said R. S., in tiie purchase of freehold lands in the
county of Devon; and that such lands, when purchased, should be con-
veyed to the trustees to the uses of the marriage, as therein mentioned.
Notwithstand.ing the recital in the settlement, R. S. did not pay the
1500L, which, together with the 500Z., remained unpaid at his death.
Soon after the marriage he purchased an estate in the county of Devon
for 2150Z., which was conveyed to him in fee, but he never made any
settlement of this estate, and died intestate. There was no evidence in
the cause, upon which the Court thought any reliance could be had ;
hut it was argued, that this case might be distinguished from the
others, inasmuch as, in this case, the husband covenanted to pay the
money to the trustees, of which covenant he scarcely could mean a per-
formance, when he made a purchase himself. However, Sir L. Kenyon,
M. R., declared, that if this case had been res Integra, he should have
thought the distinction worthy of great consideration, but he thought
this ease within the principle established by Lechmere v. Earl of Gar-
lisle, that, where a man covenants to do an act, and he does that which
may pro tanto be converted to a completion of his covenant, he shall
be presumed to have done it with such intention: and declared the
estate to be subject to the trusts of the settlement. See also Trench
V Harrison, IT Sim. 111.

The expenditure, however, by a tenant for life in building on lands
vested in trustees will not be taken to be in part satisfaction of a cove-
nant by him to pay a sum of money to the trustees, whicli they had
power to invest in the purchase of lands to be held upon the same
trust: Horlock v. Smith, 17 Beav. 572. And see Mathias v. Mathias,
3 Jur. N. S. 429.

The principle upon which Wilcocks v. Wilcocks, and Lechmere v.
Lechmere were decided, has been held to apply equally to the case
where the obligation to purchase lands arose from an Act of Parlia-
ment. Thus, in Tubbs v. Broadwood, 2 Russ. & My. 487, where a
tenant for life sold part of the settled estate under the authority of an

Act of Parliament, which directed *him to lay out the consid-

r*4231
eration money in the purchase of other lands, and to settle them L -^

to the same uses, and he afterwards purchased lands to nearly the same
amount, but died without having settled them accordingly, leaving them
to descend to his heir-at-law, who was also the first tenant in tail in
remainder under the settlement, it was held* by Lord Brougham, that
the purchase was to be presumed to have been made in performance of
the obligation imposed by the Act, and that the remainder-man could
not recover the value of the lands sold against the personal estate of
the tenant for life. " If," said his Lordship, "a person, by the pro-
visions of an Act of Parliament, disposes of lands, and, by the condi-
tion under which he receives the price, is bound to lay out the money
in other lands, to be settled to the same uses, the presumption is, that

840 PERFORMANCE.

what he did in laj'ing out that money, was done with reference to his
pre-existing obligation."

Where a person upon his marriage covenanted with trustees to settle
an estate upon his wife, but he failed to do so, and subsequently ex-
changed the estate for another and the sura of 1050Z., iP'was held that
the estate taken in exchange, and the sum of 1050L ought to be, taken
in substitution for the estate covenanted to be settled, and that the
] 050(. was a specialty debt under the covenant : Powdrell v. Jones, 2
Sm. & Giff. 335.

And it is no objection to a purchase being considered as a part per-
formance that it is optional to settle lands or a rent-charge, unless the
intention to settle a rent-charge be shown. See Deacon v. Smith, 3
Atk. 323, 328, in which case Lord Hardwieke also held, that the assign-
ment of a mortgage upon the estate, by the covenantor, was no objec-
tion ; " for," he observed, " it was only continuing, in effect, the same
mortgage upon the estate, because he wanted to take up money to com-
plete the purchase."

But where the covenant points to a future purchase of lands, it can-
not be presumed that lands, of which the covenantor was seised at the
time of the covenant, descending to his heir, were intended to be taken
in performance of it : Lechmere v. Lechmere, Ca. t. Talb. 80. And see
Davys v. Howard, 5 Bro. P. C. 552.

Nor can it be presumed that property of a different nature from that
covenanted to be purchased by the covenantor, was intended as a per-
formance. Thus, leaseholds for lives or terms of years, although with
a covenant to purchase the fee, or estates in reversion expectant upon
lives, unless, perhaps, the lives fall in during the life of the covenantor,
will not be taken in performance of a covenant to purchase fee simple
lands in. possession. See Lechmere *v. Earl of Carlisle, 3 P.
L 4^*J Wms. 22T ; Lechmere v. Lechmere, Ca. t. Talb. 80 ; Deacon v.
Smith, 3 Atk. 323 ; Whorwood v. Whorivood, 1 Ves. 540 ; Lewis v.
Hill, 1 Ves. 214.

So, in Pinnell v. Hallett, Amb. 106, where a person covenanted to
purchase and settle landa of inheritance on his wife for life, without
impeachment of waste, with remainder to the issue of the marriage,
and lie afterwards purchased the moiety of a house and a cop3'hold
estate, the question arose, whether these estates, or either of them,
were applicable in part satisfaction of the covenant ; and Lord Hard-
wieke was clearl^^ of opinion, that the moiety of the house was not,
because it was not the kind of estate intended by the articles ; and
that the copyhold estate was not applicable, because the wife was to
take the estates settled for life, without impeachment of waste. Be-
sides, the copyhold estate appeared to be of the nature of borough
^ngZis/j, and therefore could not be taken as part satisfaction to an
eldest son, which by its nature went to the youngest.

"WILCOCKS V. WILCOCKS. — BLAXDY V, WIDMORE. 841

Where, however, there was a covenant generally *to purchase lands,
the purchase of cop3-hold estate was held a part performance : Wilkes
V. Wilkes, 5 Yin. Abr. 293, fol. 39 ; but see Whorwood v. Whorwood,
1 Yes. 540.

As a covenant is construed most strongly against the covenantor, a
covenant by him to secure a jointure " out of estates he should there-
after acquire," will be a charge upon an estate which he had at that
time already contracted to purchase: Warde v. Warde, 16 Beav. 103.

A covenant to purchase lands is a mere specialty debt, and will not
create a specific lien upon lands afterwards purchased, although the
presumption may arise that they were purchased by the covenantor,
intending them to go in performance of the covenant in his marriage
articles, and will not affect a purchaser or mortgagee without notice ;
" for if the covenantor," as observed by Lord Hardwicke, " had sold
them or mortgaged them, it would have been evidence of a different
intention, and would therefore have taken off all evidence of his inten-
tion to bind them by the articles : Beacon v. Smith, 3 Atk. 327 ; see
Countess of Mornington v. Eeane, 2T L. J., N. S. (Ch.) 1. And other
specialty creditors cannot complain that the presumption arises, that
lands were purchased in performance of a covenant; for it is in the
power of the owner of an estate to prefer one specialty creditor to
another, for none of them have any specific lien on it : Deacon v.
Smith, 8 Atk. 32Y.

Notwithstanding the observation made by Lord Hardwicke in Dea-
con V. Smith, it has been held that where a person who has pur-
chased *lands in satisfaction of the covenant has mortgaged '- "^ -'
them, the equity of redemption will be liable to the covenant : Ex
parte Poole, 11 Jur. 1005.

Where the presumption arises that lands were bought with the in-
tention of performing a covenant, in the absence of fraud, the price
paid for them will be considered their value; see .Tyrconnell v. Duke
of Ancaster, Amb. 239, and note; and in Pinnellr. Hallett, Amb. 106,
where a person in his marriage articles covenanted to buy lands of the
clear yearly value of 5000Z., an estate which, when it was purchased,
produced 180Z. a year, had since fallen to 150L a year. Lord Hardwicke
directed the Master to inquire what was the yearly value of it at the
death of the covenantor, at which time it became a satisfaction pro
tanto ; and said, if it had been purchased at the time of the marriage
articles, the value should have been taken as at the time of the pur-
chase ; not that the Master was to consider it at the rent, supposing it
to have lessened at that particular time by any accident, such as mor-
tality amongst cattle ; see also Wace v. Bickerton, 8 De G. & Sm. '151 ;
Horlock V. Smith, It Beav. 5Y2.

Where trustees, under an obligation to lay out money in land, have
trust funds in their hands, any purchase by them will, more readily

842

PERFORMANCE.

than in ordinary cases, be taken to have been made in fulfilment of
their obligation : Mathias v. Mathias, 3 Sm. & Giff. 552 ; 3 Jur. N. S.
429. And where trust monies have been improperly invested bj^ trus-
tees, it will be followed into the land : Phayre v. Peree, 3 Dow. 116 ;
Sugd. Prop. ] 60. So, where trustees of a settlement, having a power
to invest money with the consent of the husband and wife, the husband,
being authorized by the trustees and with the consent of his wife, pur-
chased property not authorized by the settlement, it was held that as
between the husband and the trustees, he must be considered to have
purchased the estate for them: French v. Harrison, H Sim. Ill;
Sealy v. Staioell, 2 I. R. Eq. 326.

Where trust money was laid out in the purchase of land, pursuant to
the trusts of a settlement, and the husband advanced a further sum of
500L, and the estate was conveyed to the trustees, without any notice
being taken of the fact that part of the purchase-money had been ad-
vanced by the husband, it was held by Lord Langdale, M. K., that the
husband had devoted the 500L to the trusts of the settlement, as an
advancement to the parties entitled under it. " In a case like this,"
said his Lordship, " where the father of a family makes a purchase for
the purposes of his marriage settlement, I should require very strong
evidence to show that he did not intend it for the benefit of all
r*42fil Parties* entitled under it." Ouseley v. Anstruther, 10 Beav.
'- ^ 461.

Covenant to leave a Sum of Money.] — Upon a principle analogous
to that upon which the former class of cases proceed, it has long since
been settled, upon the authority of Blandy v. Widmore, that, if a per-
son covenants to leave, or that his executor shall pay, to another, a
sum of money, or part of his personal estate, if he dies intestate, and
such person becomes entitled to a portion of his personal property, of
equal or greater amount, under the statute, such distributive share will
be a performance o£ the covenant, and he cannot claim both : Lee v.
D^Aranda, 1 Ves. 1 ; see also Thacker v. Key, 8 L. B. Eq. 408.

If the distributive share, as for instance, in the case of a widow, be
less than the sum which the husband covenants to leave, it will be taken
to be a part performance: (Garthshore v. Ghalie, 10 Ves. 14, 16;")
and it does not depend upon the accident of the wife taking out admin-
istration or not: {Garthshore v. Ghalie, 10 Ves. 11, 12;) and the
Court will not look upon the slight difference between leaving and
paying ; or whether payment is to be within three months or six
months after the covenantor's death, as the year allowed to execu-
tors and administrators to retain property in their hands is for conveni-
ence merely, and does not prevent vesting ; and if a case were produced
in which it was quite clear that there were no debts, the Court would
give the fund to the party, notwithstanding there had not been a lapse

■WILCOCKS V. WILCOCKS. — BLANDY V. WIDMORE. 843

of twelve months: Garthshore v. Chalie, 10 Yes. 13; Lang y. Lang,
8 Sim. 465.

So, likewise, where the covenant is to pay to trustees, the distributive
share of the wife will be taken in performance of the covenant. Thus,
in Lee v. D'Aranda, 3 Atk. 419 -,8.0.1 Yes. 1, L.,by articles previous
to his marriage with M. C, covenanted that he would in his lifetime, by
■will, or by some suflflcient assurance, grant to M. C, or E. D., her
mother, or her executors or administrators, in trust for M. C, for her
separate use, lOOOZ., to be paid to M. C. after his decease, if she should
survive him ; and, in case he should not, by will or otherwise, assure to
M. C. the sum of lOOOL, his executors should, within six months after
his decease, pay her that sum for her own use. L. died intestate ; and,
upon the question being raised, whether she should have the lOOOZ. and
her distributive share also. Lord Hardwicke decreed, that she was not
entitled to the lOOOL as a debt due on the articles, and also to a distri-
butive share, in case it should amount to more than lOOOL

A general covenant by a husband *to pay or assign a moiety r-jtiAofri
of real and personal estate to his widow, will be in part per-
formed by the devolution of one-third of the personalty on the widow.
Thus, in Garthshore v. Chalie, 10 Yes. 1, there was a covenant in a mar-
riage settlement by the husband, in the event of his death, leaving his
wife surviving, and children, within six months after his decease to
convey, pay, and assign one full clear moiety of all such real and per-
sonal estate as he should be seised and possessed »f, or entitled to, to
her at his decease. Lord Eldon, upon the principle of part perform-
ance, held the widow not entitled, in addition to the moiety under the
covenant, to a third of the residue of the personal estate b}'^ the intes-
tacy of her husband, or, in other words, that her distributive share,
under the Statute of Distributions, was to be taken in part performance
of her husband's covenant.

But it seems that a gift by will, either of a sum of money or a resi-
due, or part of a residue, will not, per se, be considered a performance
of a covenant to leave a widow a certain sum ; for a, gift by will prima
facie imports liounty, and admits a presumption of an intention in the
testator to augment the provision under the covenant, and not to
satisf}'^ or perform it. See .and consider Haines v. Mico, 1 Bro. C. C.
129 ; Devese v. Pontet, 1 Cox, 188 ; Free. Ch. 240, n.. Finch's edition.

The last mentioned cases, however, are clearly distinguishable from
Goldsmid v. Goldsmid, 1 Swant. 211, where, although the testator
made a will, the principle of the decisions in cases of intestacy was
applicable. In that case G. having by marriage articles, covenanted
that, if he died in the lifetime of his wife, his executors should, within
three months after his decease, pay to her 3000Z., by his will gave all
his property to his executors, in trust, after payment of his debts, at
the expiration of three years from his decease, to divide it in such

844 PERFORMANCE.

ways, shares, and proportions as to them should appear right." On
G.'s death, during the life of his wife, the executors having died or re-
nounced, liis property became divisible according to the Statute of
Distributions. It was held, by Sir Thomas Plumer, M. R., that the
widow's distributive share, exceeding 3000Z., was a performance of the
covenant in the marriage articles. " The rule," observed his Honor,
" is clearly this : that the distributive share of the widow. In the case
of absolute intestacy, is considered as a performance of a covenant by
which the husband had undertaken that she should receive a fixed sum
at his death, provided that her share is equal to that sum. I state that
the question is at rest ; because I consider that rule conclusively estab-
r*428l ^^^^^'^ ^y *''^ "^s^ °f Blandy v. Widmore^ in which the judgment*
of Sir John Trevor was affirmed, and, on a re-hearing, reaf-
firmed by Lord Cowper. More than a century has since elapsed, and
the subject has been frequently under the review of the most distin-
guished judges, — of Lord Hardwicke, Lord Thurlow, Lord Alvanley,
and the present Lord Chancellor; and I am warranted b3' the expres-
sions of his Lordship in Garlhshore v. Ghalie (10 Ves. 1), when I say
that case is Unshaken. The rule was recognized by Lord Hardwicke,
in Lee v. D^Aranda (1 Ves. 1, 3 Atk. 419), and again in Barrett v.
Beck/ord, (Prec. Ch. 48, Finch's edit.) ; and though the subsequent
authorities of Hay ties v. Mico, and Devesey. Pontet, have decided that,
in the case of testacy, what was given should not operate as perform-
ance or satisfaction of what was due, those decisions, grounded upon
particular circumstances, are so far from impeaching the rule, that they
expressly recognise it. The only question now is, whether a distinc-
tion can be made in the present case, the widow taking her distributive
share under not an absolute, but a quasi intestacy where the purpose of
the testator being disappointed, a virtual intestacy ensues, and the
statute is the guide of distribution Considering the ques-
tion of performance of the contract, on what principle can it be eon-
tended, that the share taken under a quasi intestacy, is not a perform-
ance which the same share taken under absolute intestacy indisputably
is ? In this case, as well as in the other, the widow takes pleno jure,
herself being administratrix, and precisely the same sum. Every rule
and principle established in the former cases, applies equally when the
widow, in that character, receives a proportion of the assets by opera-
tion of law, exceeding the amount which she was entitled to receive
under her marriage contract. To determine that this is not a perform-
ance of the contract, when in the case of absolute intestacy, I should
be bound to determine it to be performance, would be to proceed on
those nice distinctions so stronglj' reprobated by Lord Eldon (10 Tes.
12, 15), and Lord Hardwicke (3 Atk. 422), and which, to adopt the ex-
pression of the latter, 'would never stand with the reason of mankind.'
In substance the widow obtains all for which she contracted ; and I am

■WILCOCKS V. WILCOCKS. — BLANDY V. WIDMOKE. 845

therefore bound to saj', that she is entitled to her distributive share, but
not in addition to her provision under the marriage contract."

But where the covenant is- not to pay a gross sum, but the interest of
a sum of money for life, or a mere life annuity, the plinciple upon which
Blandy v. Widmore was decided will not apply. See Couch v. Stratton,
4 Ves. 391, where a covenant by a husband to pay the interest of a sum
of *money to his widow, for life, was held not to be satisfied by r^ inn-i
her distributive share under his intestacy. See also Young v.
Young, 5 I. R. Eq. 615. So in Salisbury v. Salisbury, 6 Hare, 526,
where a husband covenanted by his marriage settlement, that, after his
decease his heirs, executors or administrators should levy and raise out
of his real and personal estate an annuity of 500L, and that he would,
by his last will and testament in writing, give, bequeath, and secure to
her the said annuity of 500L ; on the death of the husband intestate, it
was held by Sir James Wigram, V. C, upon the authority of Couch v.
Stratton, that the widow's share of the husband's personal estate under
the Statute of Distributions, was not to be taken by her as a perform-
ance of his covenant, either wholly or pro tanto. " Taking," observes
his Honor, " Blandy v. Widmore, and Lee v. D''Aranda as binding au-
thorities, and taking the principle of those decisions to be such as is
stated by Lord Eldon, in Garthshore v. Chalie, and by Sir Thomas
Plumer, in Goldsmid v. Goldsmid, I should (if Crouch v. Stratton
were out of the way) conclude that intestacy was a performance of the
contract, as well in the case of an annuity, as in the case of a gross sum
of money. The relation between the parties exists in this case, by
reference to which, a very singular construction is given in this Court
to a contract, the language of which would otherwise have no such
effect ; and in tlie case of the annuity, as in the other case, the effect of
the intestacy is to put the annuitant in that position with respect to
her demand against the estate of the intestate, as, by the terms of the
contract, she ought to be in at the moment when the obligation of the
husband actually to perform the contract arises, that is to say, at his
death. But then the question arises, is not Couch v. Stratton an au-
thority the other way ? In that case, Blandy v. Widmore and Lee v.
D'Aranda were both cited, and the case was argued by counsel of no
common eminence. In that case it seems to have been admitted, and
the judgment proceeded on the assumption, that the rule adopted by
the Court in the case of a covenant to pay a gross sum, did not apply
to the case of an annuity. Lord Eldon afterwards gave great con-
sideration to the ease, and did not express any dissatisfaction with that
judgment. I must follow the authority of Couch v. Stratton, which, if
it has not settled the law, can only be altered by the Lord Chancellor.
I treat the case as one in which performance and not satisfaction is to
he shown." See also, and consider. Wood v. Wood, 1 Beav. 183.

Nor will the rule laid down in Blandy v. Widmore be applicable

846 PERPORMANC:

* where the husband coveriants to pay a sum in his lifetime;
L -I for in that case there is a breach of covenant before his death,
and a debt is due to his wife. In Oliver v. Brickland, or Oliver v.
Brighouse (cited 1 Ves. 1 ; 3 Atk. 420, 422), the husband covenanted
to pay a sum within two years after marriage, and if he died, his exe-
cutors should pay it. He lived after the two years and died intestate,
leaving a larger sum than what he covenanted to pay to devolve upon
his widow, as her distributive share ; but Sir Joseph Jekyll, M. E.,
held, that it was not to be taken in performance of the covenant. See
Garlhahore v. Chalie, 10 Ves. 12, where Lord Eldon approves of this
case. So, in Lang. v. Lang, 8 Sim. 451, A., a domiciled Englishman,
married a lady at tlie Mauritius, where the French law was in force.
By their settlement (which was in the French language and form),
thejr declared that they intended to marry according to the laws of
England, the benefit of which they reserved to themselves the power
of claiming ; and it was stipulated, that A. should invest in certain se-
curities 4000Z. (the property of the lady), which he acknowledged he
had received from her, and that she should receive the income on her
sole receipts, for her maintenance and personal wants ; and that, on
her dj'ing in A.'s lifetime without leaving issue by him, the capital
should belong to him ; and if A. did not invest the 4000L in his life-
time, she was to be at liberty to take it out of his assets, on his death,
with a proviso, that the fund should go to the children of the marriage,
in the event of there being- any, or to their issue, if they should die
under twenty-one leaving issue ; it was held by Sir L. Shad well, V. C,
upon the death of the husband without issue of the marriage, and intes-
tate, that the widow was entitled to the 4000/., and also to her distri-
butive share of his personal estate. " It is apparent," said his Honor,
" on the settlement, that there is a provision made, not only for the
wife, but also for the children of the marriage, in a given event. The
event happened, in which it is provided by the settlement, that the
4000Z. should go to the wife. And I think, that, if the wife had filed a
bill (living the husband), to compel him to make the investment, the
Court would have considered that the husband had entered into a con-
tract, which was to be fulfilled in his lifetime, and would have com-
pelled him to produce the 4000L, and to make the investment.

" If that be the right conclusion, such cases as Blandy v. Widmore,
and Lee v. Cox and D'Aranda, have no application to the subject ; be-
cause those cases decide only, that, where the husband has bound him-
self to fulfil some obligation by the payment of money, or by doing
*an act equivalent to the payment of money, at the time of his
L -' death (whether it be at the time of his death, or within six
months after, makes no difference), that obligation is satisfied, if, by
dying intestate, he allows the law to confer a benefit on the covenantee
equivalent to that which he had bound himself to confer. Those cases

WILCOCKS V. WILCOCKS. — BLANDY V. WIDMORE. 847

have no reference to the subject, there being in this case an obligation
on the husband to produce the sum in question."

But where a covenant is entii'e, although the provision for the wife
be such, that, if part of it, standing alone, might be considered as per-
formed by the distributive share of the husband's personalty devolving
upon her on his intestacy, if another part of it could not be considered
as so performed, the Court will not, since the covenarit is entire, divide
it by holding one part performed, and the other part not performed.
Thus, in Couch v. Stratton, 4 Ves. 391, a man, in his marriage settle-
ment, covenanted, within three calendar months after his decease, to
pay to the trustees 6000L, with lawful interest from the day of his
death, in trust, if the wife should survive him, and there should be no
issue (which event happened), to pay 1500Z. and the interest thereof
(part of the 6000Z. and interest) to his wife, her executors, administra-
tors, and assigns, and to pay the interest of the remaining 4500Z. to her
for her life. Upon the death of her husband intestate it was held, by
Lord Rosslyn, that, as the share of the widow, under the Statute of
Distributions, was not a performance of the covenant as to the interest
of the 4500Z. for her life, it could not be considered as a performance of
that part of the covenant under which, in the event which happened,
she was entitled to 1500i. absolutely.

The two classes of eases which have been considered in this note show
the importance of distinguishing between cases of performance, to which
those cases 'belong, and cases of satisfaction ; that is to say, cases of
the satisfaction of debts by legacies. This has been well shown by Mr.
Cox, in his learned note to Blandy v. Widmore, 1 P. Wms. 324. " In
the cases on the subject of satisfaction," he observes, " in which the
contracting party is supposed to have done some other thing in lieu of
the thing contracted for, and which therefore depend more particularly
on the implied intention of the party, several rules of presumption have
been adopted which do not seem to apply to the cases of performance.
(Vide Eastwood, v. Vinke, 2 P. Wms. 616.) In cases of satisfaction the
presumption will not hold where the thing substituted is less beneficial
(either in amount or certaintj"^, or time of enjoyment, or otherwise), than
the tiling contracted for, since satisfaction implies the doing of some-
thing equivalent, *and the presumption is so much weakened
where the thing substituted is not equivalent to the thing con- '- -■
traded for, and a part satisfaction will not be intended ; whereas in
cases where the thing done can be considered as a part performance of
the thing contracted for it shall be so taken." And see Devese v.
Pontet, Prec. Ch. 240, n., and the remarks on that case, and on the dis-
tinction between cases of perforinance and satisfaction, in Goldsmid v.
Goldsmid, 1 Swanst. 220, 221.

As to covenants to give a child about to marry an equal share with
the others, see Peachy on Settlements, 556 ; Bell v. Clarke, 25 Beav.

848

PERFORMANCE.

437 ; Graham v. Wickham, 31 Beav. 447; Davenport v. Rinchlife, 1
J. & H. 713 ; Scriven v. Sandon, 2 J. & H. 743.

The distinction between equita-
ble performance as above defined,
and satisfaction, is extremely nice.
If one who has covenanted to pur-
chase and settle lands, purchases
such lands, and they descend at
his death on the person who would
have been entitled under the set-
tlement, it is an equitable per-
formance of the covenant. But if
the covenantor in the case sup-
posed, devises such lands to the
same person, the inference is
that the devise is intended as an
additional benefaction, unless he
stands in the relation of a parent,
and both are presumably portions.
The latter point is not, however,
altogether clear, and the case of
Bryant v. Hunter, 4 W. C. R. 48,
ante, 827, may be thought to incline
the other way.

In Weir v. Weir, 3 B. Monroe,
645, the doctrine of performance
was applied to an obligation foun-
ded on a valuable consideration
moving to tlie promisor, and con-
sequently partaking of the nature
of a debt. The complainants there
resided with their uncle for many
years, and were during that time
actively and industriously engaged
in aiding him in his business which
was large and complicated. The
uncle died unmarried and without a
will, and a large part of his real and
personal estate which amounted to
more than $100,000, devolved on
his nephews who claimed payment
for their services, in addition to
their distributive shares. The
court held that no express con-

tract for remuneration had been
proved, and if an implied contract
existed that the plaintiffs should
have a reasonable remuneration in
some form from their uncle's estate,
the amount which they had recei ved
by inheritance, was more than all
that they had done was worth.
It followed, that under the equita-
ble doctrine of satisfaction or per-
formance, thej' had been paid in
full, and could not justly obtain a
judgment which would sweep away
a large part of the shares of others
who were entitled as next of kin.
Ewing, Ch. J., said, " It has been
determined, that where one who
is indebted to his creditor " be-
queaths a legacy simpliciter of the
same nature as the debt, and of
equal or greater amount, the leg-
acy will, subject to certain desig-
ated exceptions, be deemed a sat-
isfaction of the debt ; Brown v.
Dawson (Prec. Chan. 240) ; Fow-
ler V. Fowler, 3 P. Wms. 353 ; 1
Ves. Sr. 123, 125; 2 P. Wms. 130,
Prec. Chan. 394.

But it is evident in this case,
that there is no subsisting obliga-
tion for a debt in favor of either
of the nephews, or express stipula-
tion for compensation iu money or
wages. The proof, in fact, repels
such an idea. If any implica-
tion in favor of remuneration, can
be raised from the conduct, situa-
tion and mutual relations of the
parties, as honest, fair and just
men, it is that their uncle would
either in his lifetime, or at his
death advance them out of his

M-ILCOCKS V. ■WII.COCKS — BLANDY V. WIDMORE.

849

ample fortune, an amount equiva-
lent or more than equivalent to
the amount which he had received
from them, and that they looked
to and relied upon this expected
advancement for their compensa-
tion, and not to wages or a remu-
neration in money. If so, they
have by operation of law obtained
an advancement more than equiva-
lent to their services, and equity
will not imply a promise to pay
more.

It has been settled as a well
established rule in equity, that
where a parent is under express
obligation by articles, to provide
portions for his children, and after-
wards by will or codicil, makes a
provision for them, suci testamen-
tary provision shall be considered
a satisfaction or performance of
the obligation ; and so much op-
posed are courts of equitj', to rais-
ing double portions, that if the
amount bequeathed shall be less
than the amount agreed to be ad-
vanced, the sum so bequeathed
will sometimes be considered as
part satisfaction. Brown v. Brown,
2 Vern, 439; Blois v. Blois (2
Chan. Rep. 341) ; Moulson v.
Moulson, 1 Brewers C. C. 82 ;
Copley Y. Copley, 1 P. Wms. 147 ;
Achworth V. Ackworth, 1 Bro.
C. C. 307, note ; Warren v. War-
ren, 1 Bro. C. C. 305 ; Finch v.
Finch, 1 Ves. Jr. 534 ; and various
cases referred to and commented on
in 2 Roper on Legacies, Chapter
18.

So where an express obligation,
to provide portions, or make an
advancement or other provision,
is subsisting, the devolution of a
distributive share of personalty,
voji.. II 54

or the descent of real estate from
the person under obligation to
make provision, upon the individ-
ual for whom it was to be made, has
been decreed to be a performance.
Lee V. Deranda, 3 Atk. 419 ;
Blandy v. Wilmore, 1 P. Wms.
323 ; Garthshaw v. Carlie, 10 Yes.
1 ; Goldsmith v. Goldsmith, 1
Swan. 211; Wilcox v. Wilcox, 2
Yer. 558.

If where there is an express
obligation to provide portions or
make advancements,a testamentary
provision or devolution of person-
alty, or the descent of realty may
be presumed to be, and treated as
satisfaction or performance, much
more when as in the case under
consideration, from the conduct,
condition and relations of the
parties it is rendered doubtful
whether any implication for com-
pensation can be raised, and if
any, it must be regarded as an
implication to make provision for
them out of his estate, and they
look to that as their expected re-
muneration and no other; will the
descent of realty and slaves, and
the devolution of personalty to a
much larger amount than any of
the other heirs save the infant, and
much larger than any pecuniary
compensation that they might be
entitled to for services, be regarded
as a full performance or satisfac-
tion of their expected remunera-
tion ? And a court of equity
ought not, and will not, imply a
promise to pay more. " They have
received by operation of law what
they looked for, and more than they
had any just right to expect, and
it would be unjust to the other
heirs to decree them more."

850 CONFUSION OF BOUNDARIES.

[*433] *WAKE V. CONYERS.i

MAY 19 ; JUNE 16, 1759.

KEPOHTED 1 EDEN, 331.

BousDAEiES.] — All cases where the Court has entertained bills for
establishing boundaries, have been v>here the soil itself xcas m ques-
tion, or there might have been a multiplicity of suits.

The Court has no power as of course to issue commissions to fix the
boundaries of legal estates. Some equity must be superinduced by
the acts of the parties, as some particular circumstances of fraud ;
or confusion, where one party has ploughed tuo near the other, or the
like.

Bill to ascertain the boundaries of two manors dismissed, there being
no dispute as to the soil.

The defendants, John Conjers, Esq., as tenant for life, his wife
Lady Henrietta, as entitled after his death to her jointure, and
his son, an infant, as tenant in tail, were entitled to the manor
of Epping, and also- to the freehold of certain lands next, adjoining
to it, lying in the manor of Waltham ; the boundary lines of the
two manors passing through Mr. Conyers' park. He had cu-t
down certain trees, which, it was alleged by the bill, were stand-
ing on the line, and were boundary marks.

The present bill was filed by 8ir William Wake, as prochein
amy to his three infant sons, who were tenants in tail successively
of the manor of Waltham, praying that the boundary of the
manor of Waltham, so far as the same abuts on the manor of
Epping, might be fixed and set out, and that a commission
might issue for that purpose ; and that the defendant John Con-
yers might set up new boundary marks in the room of those
which he had cut down and destroyed.

r*4.^4.1 *Mr. Conyers by his answer admitted the cutting down
'- -'of certain trees, but denied that they were boundary
marks ; though he submitted to have the boundaries ascertained
and settled, and that marks might be set up to perpetuate such
boundaries.

^Ou the opening, the Lord Keeper (Henley) objected to the
nature of the suit, as being merely to settle the boundaries of the
manor. He said he did not think the Court had jurisdiction,
and desired it to stand over, for counsel to consider whether
there was suflicient equity for the Court to entertain the bill.

^It came on again this day.

2'he Attorney- General (Sir Charles Pratt), Wilbraham, and Brown-
ing, for the plaintifis. — This is not merely a bill of peace ; though

' 2 Cox, 360, Hill's MSS. « May 19th, 1759. » June 16tl), 1759.

WAKEV.CONTERS. 85 1

as far as the jurisdiction of the Court is concerned, it is usual and
proper to establish peace and good neighborhood. But it is a case
peculiarly coming under the most favourable jurisdiction of this
Court; which is to give a remedy where there is none at law.
The law is defective. The boundary cannot be set out. It can
only be tried by action of trespass or ejectment, which can do no
more than settle the local trespasses ; while a boundary line ex-
tending a mile or two, may be disputed inch by inch.

There is no objection to this bill, as being merely a bill to settle
boundaries. Bills to settle boundaries have been entertained in
this Court from very ancient times : Tothill, 126, 127 ; so early
as the reign of James the First, Id. 84, 210 ; Bowman v. Yeat, cit.
1 Ch. Ca. 146 ; there was a rent charge, and the grantee did not
know where to distrain, on account of the confusion of bounda-
ries: a commission was ordered. So, Harding v. Countess of Suf-
folk, 1 Ch. Rep. 63 ; Cocfo v. Foley, 1 Vern. 359. In the case of
The Duke of Dorset v. Serjeant Girdler, Prec. Ch. 531, a demurrer
to a bill, to perpetuate testimony on the ground of a menace being
used to disturb the plaintilf in a sole fishery, was overruled ; and
on this ground, because he could not proceed at law. So in this
case, *what is prayed by the bill cannot be done at law: r^ioc-i
the defendant has destroyed the last remaining boundary •- -'
marks, and by his answer consents that they may be set out. The
only difterence between this and the common case is, that there is
no dispute about the soil, which is confessedly Mr. Conyers' ; and
it may be asked upon that, cui bono to fix the line ? The answer
to that is the manorial rights ; a manor has a seignory ; lands
escheat ; the lord has a right to treasure-trove, to deodands, to the
game. The only difterence, then is the value. In a hundred
years' time, the boundaries will be confounded and lost unless this
commission be granted.

Perrot and Hoskins, for the defendants. — This bill, under pre-
tence of establishing boundaries, is, in fact, to settle manorial
rights. , It is said, that every question for the settling of bounda-
ries is a proper subject for the jurisdiction of this Court. That
is, however, not the case. Those cases which have been cited, in
which a man, having joint occupation, has confounded the boun-
daries, have turned upon the fraud which has been relieved against.
A similar principle has given the Court jurisdiction in the cases
of rent-charge. As to the loss of evidence, if any injury arises to
the plaintift's from that, it will be from their own laches, in not
making perambulations. This does not come under the common
case of issues, where enjoyment is decreed accordingly. It is an
incorporeal hereditament, and that cannot be done.

Lord Keeper Hanley * — This bill is merely for ascertaining
the boundaries of these two manors, and is intended to bind the
inheritance of the parties for ever. It struck me as new, upon the

' Afterwards Lord Chancellor and Earl of Northington.

852 C0NFU8I0N OF B0UNDARrE3.

opening. I have been, ever since I sat here, extremely jealous of
the jurisdiction of this Court over legal inheritances. I was,
therefore, desirous that some precedent should be produced, to
show me that this Court could entertain a bill of this nature, to
settle the boundaries of an incorporeal inheritance ; but none such
has been produced. There have, since I sat *here been

[*436]

several [Bills] to fix boundaries where a right to the free-

hold of the soil has been incidental. J3ut I have seen such fright-
ful consequences arising from them, that I think these suits are
very far from deserving encouragement. They originally came
into this Court under the equity of preventing multiplicity of
suits ; yet in those cases I have observed that they have been
sometimes ai tended with more expense than if all the suits which
they apprehended, and which they were brought to prevent, had
actually been tried at law.

Hitherto these disputes have been only between persons of great
fortune. But the consequences have been, that the parties have
been eager to come into this Court, without any attention being
paid to see whether the prayer of the bill applies properly to the
jurisdiction. An issue is directed, and atter going down to the
Assizes at a very great expense, and a verdict being found for one
party, the other is dissatisfied, and a new trial is directed. I was
extremely unwilling to grant the last new trial, in the case of
The Earl of Darlington v. Bowes (1 Eden, 270) ; but on inquiring
of the bar whether there was any instance of a decree made upon
one verdict only, none could be produced ; and if there were any,
they were so few, that they could not be remembered. I there-
fore thought myself bound by the current of opinions to grant it.
But I am determined, if any such case should ever come before
me again, to consider it in a very different light, and to have the
matter more fully inquired into, and prevent, if possible, an ex-
pense, which is a reproach to the law.

All the cases where the Court has entertained bills for establishing
boundaries, have been where the soil itself luas in question, or where
there might have been a multi/jlicity of suits.

The Court has, in my opinion (and if parties are not satisfied,
they have resort elsewhere), no power to fix the boundaries of
legal estates, unless some equity is superinduced by the act of the far-
ties, as some particular circumstance of fraud or confusion, where one
r*4Q7-| po-'i'ty has *plovglied too near the other, or the like ; nor has
'- -^ this Court a power to issue such commissions of course, as
here prayed.

In this case it is said there is no legal remedy, and therefore
there must be an equitable one ; but this does not follow unless
there is an equitable right. If there is a legal right, there must
be a legal remedy ; and if there is no legal right, there can, in this
case be no equitable one.

It is said that in some future time, there may be a casual right,
such as escheat, treasure, trover, &c. ; but am I to countenace such
a suit as this before there is any such right, merely because it

WAKEV.CONYBRS. 853

may happen, though, when it does happen, it may pei'haps be
such a right as the parties will not think it worth their while to
contend for ?

If I were to make this a precedent, it would be, in effect, to
issue commissions to settle boundaries all over the kingdom ; for
if of manors, why not of honours, of hundreds, and all other in-
ferior denominations of districts ? I shall always, while I have the
honour to sit here, be very attentive to prevent the subject from
great waste of expense about matters by no means adequate to it.
Should I entertain such a bill as this, I should put it in the power
of every opulent lord of a manor to distress, if not ruin, not only a
poor man, but even a man of moderate fortune, whose estate hap-
pens to border upon his; for these suits are often attended with
2000^. or 3000^. expense — a dishonour to justice.

In order to give this Court jurisdiction, there must appear some
equitable circumstances in the cane. I know of no boundary marks
to a manor in another's soil. The trees were Mr. Conyers' own :
he had a right to cut them down ; aud if the plaintiffs are afraid
of losing, in the course of time, the evidence of the boundaries of
their manors, they may preserve it by perambulations as often as
the^ please; but I cannot fix the limits of a legal right (if any),
unless the jurisdiction of this Court is superinduced by some
equitable circumstances, which it is not in this case.

[*438]

*Another consideration is, that the jDlaintifts are infants,
and so is one of the defendants ; and shall I send the in-
fant plaintiffs beforehand, when they know not the value of their
estate, to bind the inheritance quia timent, under the protection
of the lather, who is not privy in estate to them ? I am well
satisfied that this bill ought to be dismissed.

Although the jurisdiction of the Court to issue a commission to
ascertain boundaries is very ancient (Mullineux v. Mullineux, Pecker-
ing v. Kempton, Toth. 39 ; Spyer v. Spyer, Nels. 14; Boteler v. Spel-
man, Rep. t. Finch, 96 ; Wintle v. Carpenter, Rep. t. Finch, 462 ;
Glynn v. Scawen, Rep. t. Finch, 239), its origin is by no means free
from doubt.

The Lord Keeper, in the principal case, was of opinion, that suits to
determine boundaries originally came into the Court of Chancery under
the equity of preventing multiplicity of suits ; but Sir W. Grant, M.
R., in a case where it became necessary to inquire by what principles
the Court is guided in granting a commission of this description, ob-
serves, that " there are two writs in the register (since abolished, see 3
& 4 Will. 4, c. 2T, s. 36), concerning the adjustment of controverted
boundaries, from one of which it is probable that the exercise of this
jurisdiction by the Court of Chancery took its commencement The
first is the writ de rationalibus divisis (Reg. Brev. 15t, b.) ; the other,

854 CONFUSIOlil OP BOUNDARIES.

the writ de perambulatione facienda (Reg. Brev. lb.). Both Lord North-
ington and Lord Thurlow, without referring to this writ or commis-
sion as the origin of the jurisdiction of the Court, have yet expressed
an opinion, that consent was the ground on which it had been at first
exercised. The next step would probably be, to grant the commission
on the application of one party who showed an equitable ground for
obtaining it ; such as, that a tenant or copyholder had destroyed, or
not preserved, the boundaries between his own property and that of his
lessor or lord. And to its exercise on such an equitable ground, no
objection has ever been made :" Speer v. Graioter, 2 Mer. 416.

It is not, however, improbable, that equity, which has borrowed so
largely from the civil law, may have assumed jurisdiction to settle
boundaries from the proceeding in that law known as actio flnium re-
gundorum : see Dig. lib. X , tit. 1, 1. 1 ; Domat, b. II., tit. 6, s. 1, 2.
Doubtful, however, as the origin of the jurisdiction may be, it is
certain that it has been viewed with extreme jealousy by modern
*equity judges, who have always been desirous that the rights
L J of parties should, where practicable, be tried and determined in
the ordinary legal mode. In short, although the Court, in some cases,
has granted commissions or directed issues on no other apparent
ground than that the boundaries, even of manors, were in controversy,
it is now clear that a confusion of boundaries furnishes, per se, no
ground for the interposition of the Court ; the rule now acted upon is
that laid down bj"^ the Lord Keeper in the principal case, " that the
Court has no jurisdiction to fix the boundaries of legal estates, unless
some equity is superinduced by the act of the parties:" see Speer v.
Crawler, 2 Mer. 418 ; O'Sara v. Strange, 11 Ir. Eq. Rep. 262 ; Ireland
V. Wilson, 1 Ir. Ch. Rep. 623.

In Atkins v. Hatton, 2 Anst. 386, the rector of a parish filed a bill
for an account of tithes, and to have a commission to settle the bound-
aries of the parish and the glebe. Some confusion, it seems, had arisen
from the negligence of both parties in not keeping their rights distinct.
The bill, however, so far as it related to the commission to set out the
boundaries, was dismissed with costs. " The plaintiff," observed Mac-
donald, C. B., " here calls upon the Court to grant a commission to
ascertain the bounds of the parish, upon the presumption that all the
land which would be found witliin those boundaries would be titheable
to him. That is, indeed, a prima facie inference, but by no means con-
clusive ; and there is no instance of the Court ever granting a commis-
sion in order to attain a remote consequential advantage. It is a
jurisdiction which Courts of equity have always been very cautious of

exercising A commission is also prayed to set out the

glebe land. It appears that the plaintiff has a full equivalent for every
piece of glebe that ever belonged to the rectory ; so that, if the exact
metes and bounds are unknown, he has already the full effect of a com-

WAKB V. CONYERS. 855

mission : if they are known, and any part not delivered up to him, his
remedy is at common law ; he has made no case for our interference."

In St. Luke^s v. St. Leonard's, cited 2 Anst. 395, a bill was filed by
the parish of St. Luke's to avoid confusion in making their rates, and
prayed a commission to fix their boundaries for that purpose. A num-
ber of houses had been built upon land formerly waste, and it was
doubtful to which parish each part of the waste belonged. Lord Thur-
low refused to interfere, and observed, that the greatest inconvenience
might arise from doing so ; for if that commission were granted, and
the bounds set out by the commissioners, any other parties, on a differ-
ent ground of dispute, might equally well claim another commission ;
these *other commissioners might make a different return, and „
so, in place of settling differences, endless confusion would be ■- ■'
created. In the note of this case in Brown's Chancery Cases (vol. i. p.
41), Lord Thurlow is reported to have said, that if he should entertain
a Ml, and direct an issue in such a case as this, he did not see what case
would be peculiar to the Courts of law. He did not know how to extract
a rule from the Mayor of York v. Pilkington, (2 Atk. 302). Where there
was a common right to be tried, such a proceeding was to be understood :
the boundary between the two jurisdictions was apparent. That is the
case where the tenants of a manor claim a right of common by custom,
because the right of all the tenants of the manor is tried by trying the
right of one ; but in this case, he saw no common right which the par-
ishioners had in the boundaries of the parish. It would be to try the
boundaries of all the parishes in the kingdom, on account of the poor-
laws. He apprehended these issues had usually been directed by con-
sent o^ the parties : S. (7., 2 Dick. 550, nom. Waring v. Hothavi.

In Miller v. Warmington, 1 J. & W. 484, a termor having, by him-
self or his under-tenants, suffered the boundaries between the demised
premises and contiguous lands of his own to become confused, he was
held not entitled, after the expiration of the term, to a commission to
ascertain tliem, in opposition to the assignee of the lessor, who then,
and had since, continued in the possession of both, it not being shown
that such possession was improperly obtained. So, in Speer v. Craw-
ler, 2 Mer. 417, Sir W. Grant, M. R., refused to issue a commission to
ascertain the boundaries of manors, observing, " In Wake v. Conyers,
Lord Northington held, that it was in the case of manors that the ex-
ercise of the jurisdiction which (he says) ' had been assumed of late,'
was peculiarly objectionable. He refused either to grant a commission
or to direct an issue. So did Lord Thurlow, in the case of two par-
ishes, St. Luke^s V. St. Leonard's, (2 Anst. 386-395). In the same case,
of Wake v. Conyers, Lord Northington says, that, in his apprehension,
this Court has simply no jurisdiction to settle the boundaries even of
land, unless some equity is superinduced by the acts of the parties. I
concur in that opinion, and think that the circumstance of a confusion

856 CONFUSION OF BOUNDARIES.

of boundaries furnishes per se no ground for the interposition of the
Court."

What is a sufficient Ground for issuing a Commission or directing
an Issue.] — If the confusion of boundaries has been occasioned, not
by the negligence of both, but by the fraud of one of the parties,
where, for instance, he has been gradually encroaching, by ploughing

*or digging too near to the other, with the intention of oblit-
r*4411 B& o 1

'- -* erating the boundaries, a Court of equity will interfere : Win-
tie V. Carpenter, Rep. t. Finch, 462 ; Marquis of Bute v. Glamorgan-
shire Canal Company, ^ Ph. 681. This was, according to the opinion
of Lord Chief Baron Macdonald, the ground of the decision of the
House of Lords in Rouse v. Barker, (4 Bro. P. C. 660, Toml. edit.).
See Atkins v. Hatton, Anst. 396.

Where such a relation exists between two parties, as that of tenant
and landlord, which makes it the duty of the tenant to preserve the
boundaries, if he permits them to be destroyed, so that the landlcfrd's
land cannot be distinguished from his, and restored speciflcially, he
will, even in the absence of fraud on his part, be compelled to substi-
tute land of equal value, the land or its value being ascertained by
commission. "It has been long settled," observes Lord Eldon, "and
that law is not now to be unhinged, that a tenant contracts, among
other obligations resulting from that relation, to keep distinct from his
own property, during his tenancy, and to leave clearly distinct at the
end of it, his landlord's property, not in any way confounded with his
own. This is, therefore, a common equity, that a tenant, having put
his landlord's property and his own together, for his own convenience,
in order to make the most of it during his tenancy, is bound' at the
end of the term, to render up specifically the landlord's land, and if he
cannot, that a commission shall issue from a Court of equity, to in-
quire what were the lands of the landlord, the Court taking care, to
the intent that the tenant may discharge his obligation to do what is
right as to the possession in the meantime ; and if the tenant has so
confounded the boundaries, subdividing the land by hedges and stones,
and destroying the metes and bounds, so that the landlord's land can-
not be ascertained, the Court will inquire what was the value of the
landlord's estate, valued fairlj^, but to the utmost, as against that
tenant, who has himself destroyed the possibility of the landlord's
having his own :" Attorney-General v. Fullerton, 2 V. & B. 264. And
see Glynn v. Scawen, Rep. t. Finch. 239 ; Wintle v. Carpenter, Rep. t.
Finch. 462 ; Aston v. Lord Exeter, 6 Ves. 293 ; Duke of Leeds v. Earl
of Strafford, 4 Ves. 180; Grierson v. Eyre, 9 Ves. 345 ; Godfrey v.
Little, 1 Russ. & My. 59, 2 Buss. & My. 630.

And it seems that the same result would follow, if the confusion of
the boundaries was occasioned by a tenant for life {Attorney-General
V. Stephens, 6 De G. Mac. & G. 133} ; or where confusion of the

WAKE V. CONTERS. 857

boundaries of manors was occasioned by the acts or neglect of a
tenant or lessee of *one of the manors being the owner of the |-^ . .„-,
other. See Speer v. Crawler, 2 Mer. 415, 418 ; Clayton \. '- ^
Cookes, 2 Atk. 449.

So where several lands allotted to the holders of certain offices, were
for a long series of years in the possession of a single individual, in
consequence of his holding all the offices, a confusion of boundaries
taking place in consequence thereof seems to have been considered to
be a good ground for proceedings in equity, though it was not neces-
sary to determine the point ; Kennedy v. Trott, 6 Moo. P. C. C. 467.

And it seems where a confusion of lands is occasioned by a devisor,
if they come into the hands of parties whose duty it is to ascertain the
boundaries, a person entitled to part of such lands may come into
equity to establish his claim. Thus in Hicks v. Hastings, 3 K. & J.
'701, a testatrix by her will appointed the manor of Watton (over which
she had an equitable power of appointment) to uses, under which the
plaintiff became entitled as tenant in tail in possession, and devised
her residuary real estate to trustees upon trust to sell. The trustees
sold (amongst other things) a field, part of which was shown by the
abstract to be parcel of the manor, and procured the legal estate in the
whole to be conveyed to the purchaser. It was held by Sir W. Page
Wood, V. C, that, notwithstanding the fault of the confusion lay with
the party through whom the plaintiff claimed, the plaintiff was not pre-
cluded from establishing in the Court a claim to a portion of the land
and to a proportional part of the rents from the time when he became of
age. And an inquiry was directed, in what part of the field the plaintiff's
portion was situated. " This," said his Honor, " is not the ordinary
case of confusi m of boundaries. The testatrix, having a certain num-
ber of acres of land which is partly freehold and partly leasehold, de-
vises the freehold part to the plaintiff, and the leasehold part to trustees
for sale. The trustees undertake to discharge that trust and proceed
to sell. It then became the duty of the trustees to see that the lease-
hold part, and no more, was comprised in the conveyance to the pur-
chaser, and the duty of the purchaser to do the like. It is true that
the testatrix was the party to blame for the confusion of the freehold
land improperly sold by the trustees with the leasehold ; but in refer-
ence to that argument, Clarke v. Yonge, 5 Beav. 523, appears to me to
have a material bearing."

A Court of equity will grant relief not only against a party guilty of
neglect or fraud in causing a confusion of boundaries, but also against
all those who claim under him, either as volunteers or purchasers, with
*notice : See Attorney-General v. Stephens, 6 De G. Mac. & G.
134 ; Hicks v. Hastings, 3 K. & J. 701. [*443]

The Court, in cases relating to confusion of boundaries, proceeds
upon the same principle as it does where an agent or bailiff, or any

858 CONFUSION OF BOUNDARIES.

other person who is under an obligation, express or implied, to keep his
c-wn property separate from the property of another, mixes them to-
gether, for under such circumstances he will have the onus thrown upon
him of distinguishing his own property; and if he is unable to do so,
the other person will be entitled to the whole of the property. See
Lupton V. White^ 15 Ves. 432; in which case the defendants were
under the obligation of keeping distinct accounts of the ore produced
by two different mines, to the produce of one of which the plaintiffs
were entitled. The defendants having mixed it, were held liable to be
charged with the whole net produce, except what they should prove to
have been taken from their own mine. And see Panton v. Po,nton,
cited 8 Ves. 440 ; Chedworth v. Edwards, 8 Yes. 46 ; Cook v. Addison,
1 L. E. Eq. 466, 1 Smith's Lead. Cases, 642, Y ed.

In addition to the grounds of equitable relief in order to sustain a bill
for a commission to ascertain boundaries, the plaintiff must show that
some portion of the lands, the boundaries of which are alleged to have
been confused, is in the possession of the defendant (Attorney- General
v. Stephens, 6 De G. Mac. & G. Ill, 149, overruling S. C, 1 K. & J.
'724) ; he must also establish, by the admission of the defendant, or by
evidence, a clear title to some land in the possession of the defendant ;
Godfrey v. Litiel, 1 Russ. & My. 59, 2 Russ. & My. 630. In the Bishop
of Ely V. Kenrich, Bunb. 332, it is laid down, that the Court will not
entertain jurisdiction, except on the admission of the plaintiff's title to
some of the lands, by the party against whom the relief is sought. If,
however, that were the case, there could be no such remedy as a com-
mission to ascertain boundaries ; for the defendant would in every case
take especial care to deny the plaintiff's title, and so deprive him of his
remedy. It was held, therefore, both by Sir J. Leach, M. R., and by Lord
Brougham, in Godfrey v. Littel (1 Russ. & My. 59, 2 Russ. & My. 630),
that the plaintiff. might establish his title by evidence. " The position,"
observes Lord Brougham, " laid down in Bunbury is indeed contradic-
ted by the other cases ; and in Wake v. Gonyers, Lord Northington,
though strongly disposed to dismiss the bill, and though he talks of
the frightful consequences arising from such commissions, preferred ac-
complishing his object by taking another ground for the dismissal of
the bill, namely, *that the manorial rights claimed by the plain-
L -' tiffs were incorporeal hereditaments, and that the defendants
were entitled to the soil and freehold in the estates in question. This,
therefore, proves that Lord Northington not only did not acquiesce in
the principle attempted to be established in Bunbury, but that he wholly
repudiated the authority of that ease: " 2 Russ. & My. 633.

Where the quantity of the land of the plaintiff, in the possession of
the defendant, is doubtful upon the evidence, the Court will direct an
inquiry (Sicks v. Hastings, 3 K. & J. 701), a commission, or an issue,

■WAKE V. CONTERS. 859

as will best answer the justice of the case; Godfrey v. Littel, 1 Russ. &
My. 59, 2 Russ. & My, 630.

It must be shown clearly, that, without the assistance of the Court,
the boundaries cannot be found ; Miller v. Warviington, 1 J. & W. 491.

Another and a very old ground for equity interposing in cases of this
kind, which is mentioned in the principal case, is to prevent multiplicity
of suits ; see Bouverie v. Prentice, 1 Bro. C. C. 200 ; Mayor of York
V. Pilkington, 1 Atk. 282, 284 ; and see Whaley v. Dawson, 2 S. & L.
3T0, 3T1 ; Meadows v. Patherich, Rep. t. Finch, 154 ; The Commis-
sioners of Sewers of the City of London v. Olasse, 41 L. J. Ch. (N. S.)
409.

The doctrine laid down in the principal case has been reviewed and
approved of in the important case of the Marquis of Bute v. The Ola-
morganshire Canal Company, 1 Ph. 681, where a commission to ascer-
tain boundaries was prayed for, and the bill, amongst other thing, al-
leged that the defendants had gradually encroached upon the plaintiff's
land, filling up the ditch or the greater part of it, and obliterating the
boundary, and that the occupiers were fifty in number, and that it would
be impracticable to proceed at law. It was objected, that it was only a
dispute between two contiguous proprietors as to their actual bounda-
ries, and that the remedy was at law, and that there was no ground for
equitable interference. But the Lord Chancellor held otherwise. " The
rule," observed his Lordship, " as I apprehend, is this, that the mere
cinfusion of boundaries between adjacent proprietors will not support
a bill for a commission ; there must be some equity arising out of the
conduct or acts of the party against whom the commission is praj'ed,
or the bill must be brought for the purpose of preventing a multiplicity
of suits. In the case of Wake v. Conyers, (1 Eden, 331), referred to by
the defendants, it is stated by the Lord Keeper (Northington), that the
Court will entertain such a bill ' where there might have been a multi-
plicity of suits, or where the confusion has been created by the act of
the parties, as where a party has ploughed too near another, or the
like.' I *think the allegations in this bill present a case, which,
if substantiated by evidence, would entitle the plaintiff to a com- L -^
mission; the bill states a system of gradual encroachment on the part of
the defendants, the filling up of the ditch, and obliterating the bounda-
ries ; and further, the necessity, if this Court should not interfere, of
bringing a great number of actions against different parties, in order to
fix the boundaries and establish the plaintiff's right."

Where charity lands have been occupied with other lands, and the
tenant cannot ascertain what part of the lands belong to the charity, a
commission may be issued by the Court of Chancery to ascertain what
land belongs to the charity, and what does not ; and if the charity land
cannot be ascertained, so as to be restored specifically, land of equal
value must be substituted in its place. Attorney-General v. Bowyer, 5

m

^^^ CONFUSION OP B0UNDAKIB3.

Ves. 300 ; Attorney-General v. Fullerton, 2 V.. & B. 263, 266 ; and see
Beresby v. Farrer, 2 Vern. 414; and see Stat. 2 & 3 Will. 4, c. 80, to
authorise the identifying of land and other possessions of certain eccle-
siastical and collegiate corporations.

It seems that a Court of equity in England has jurisdiction to issue
a commission to ascertain boundaries in our colonies : see Tulloch v.
Hartley, 1 Y. & C. C. C. 114 : where the Yice-Chancellor Knight Bruce
entertained a bill to settle the boundaries of real estates in Jamaica.
Penn v. Lord Baltimore, 1 Ves. 444 ; Pihe v. Hoare, 2 Eden. 182, and
Bayley v. Edwards, 2 Swanst. '703, were cited, but his Honour gave
judgment, without mentioning any doubt as to the jurisdiction.

A somewhat similar class of cases may be here mentioned, in which
the owner of a rent will be entitled to relief in equity, " on the usage of
payment," where, in consequence of the confusion of boundaries or
otherwise, the particular lands on which the rent is a charge, cannot be
fixed on, as a fund for the legal remedy by distress. See Duke of Leeds
V. Powell, 1 Ves. 171, 1Y2; North v. Earl and Countess of Strafford,
3 P. Wms. 148 : Bouverie v. Prentice, 1 Bro. C. C. 200 ; Duke of Leeds
V. Corporation of New Badnor, 2 Bro. C. C. 518, and cases there cited,
overruling S. C, 2 Bro. C. C. 338. And see the cases cited by Sir R. T.
Kindersley, V. C, in Mayor of Basingstoke v. Lord Bolton, 1 Drew.
289.

But the Court will not grant a commission unless the plaintiff can fix
upon some house or parcel of land and say that it was part of the land
sought to be charged (Mayor of Basingstoke v. Lord Bolton, 3 Drew.
50, 63) ; and the Court will not interfere in the cass of heriots payable
by custom out of the chattels of a deceased *tenant by his ex-
L J ecutor, as against his heir, in the absence of his personal repre-
sentatives. 76. And see 18 & 19 Vict. c. 124, s. 33, as to the power of
the Board of Charity Commissioners to ascertain lands charged with a
rent for the benefit of a charity, not exceeding 101.

A court of equity has no juris- See Hickman v. Cook, Haskell v.
diction to try a naked question of Alien, 33 Maine, 448.
title to real estate; Bickman v. "The right to issue a commission
Cook, 3 Humphreys, 640 ; The to ascertain boundaries is necessa-
Alton M. & F. Lis. Go. v. Buck- rily limited by the rule that equity
master, 13 Illinois, 201 ; nor where will not interfere where there is an
the title is proved or conceded, adequateremedy at law. It is, there-
can such a court arrogate the fore, confined to cases where there
power of determining whether it is some peculiar equity attached to
does or does not embrace a par- the controversy respecting the lost
ticular tract which is in dispute, bounds, arising out of the fraudu-

■WAKE V. CONYBRS.

861

lent or negligent misconduct of
the respondent ; where it is his
duty to preserve the boundaries,
and they cannot otherwise be
found or restored ; to cases where
a resort to equity is necessary to
prevent a multiplicity of suits ;
and to cases where the power
is necessarily exercised inciden-
tally in furtherance of another
equity. Controversies not pre-
senting any peculiar equity, like
the one in question, have been
left to be settled by proceed-
ings at law ; " Perry v. Pratt, 31
Conn. 433.

It follows that a chancellor will
not intervene to fix the boundary
between two adjacent tracts, al-
though the line has become doubt-
ful and controverted through the
loss or obliteration of the land
marks by which it was defined,
unless some equity has been su-
perinduced by the neglect or mis-
conduct of the defendant, or of
those under whom he claims
Wolcott V. Bobbins, 26 Conn. 236
Hale V. Darter, 5 Humphreys, M
Topp V. Williams, 7 Id. 569
Doggett v. Hart, 5 Florida, 215
Wetherbee v. Dunn, 36 Cal. 241
Norris' Appeal, 14 P. F. Smith
215. Every such question is ne-
cessarily, to a great extent, one
of fact, to be ascertained by the
testimony of witnesses, which
should consequently be adjudi-
cated in the ordinary course of
law with the assistance of a jury,
and cannot be brought into chan-
cery consistently with the custo-
mary rules of English jurispru-
dence, as incorporated in the or-
ganic laws of the Union, and of

the several States. See The North
Penna. Goal Co. v. Snowden, 6
Wright, 488 ; Norris^ Ajjpeal, 14
P. F. Smith, 275 ; Tilmes v. Marsh,
17 Id. 507.

It is accordingly held in Penn-
sylvania, that the legislature can-
not confer a general authority on
a court of chancery to determine
controversies as to boundary. The
constitution of that State declares
that " trial by jury shall be as
heretofore, and the right thereof
remain inviolate;" and although
the sixth section of the fifth article
provides that the legislature may,
" in addition to the equitable juris-
diction hereinbefore vested in the
judiciary, confer such other powers
to grant relief and do equity as
shall be found necessary, and may
from time to time enlarge or cur-
tail the same," yet this clause
must be understood as referring to
" powers in that class of cases in
which chancery had jurisdiction.
It does not mean that the legisla-
ture may confer on the Supremo
Court, or Courts of Common Pleas,
the power of trying any question
which has always been triable ac-
cording to the course of law by
jury ;" The North Penna. Coal Co.
V. Snowden, 6 Wright, 488, 492.
It follows that an act of Assembly
authorizing a court of equity to
ascertain boundaries where no
equity has been superinduced by
the acts of the parties, would be
invalid as transcending the limits
which the constitution prescribes ;
Norris' Appeal, 14 P. F. Smith,
275; Tilmes v. Marsh, 17 Id.
507. In Norris' Appeal, the
bill averred that the complain-

862

CONFUSION OP BOaNDARIES.

ant and defendants owned certain
adjacent lands extending to low
water mark on the river Delaware,
and that the boundaries had be-
come confused through the oblit-
eration or removal of the natu-
ral and artificial monuments by
which the courses and distances
were originally defined, and in
consequence of alluvial accretions
and deposits, wliich had resulted
in the formation of a marsh, ex-
tending between the ancient shore
line, and the actual bed of the
stream. The complainant then
prayed for the appointment of a
commission to trace the dividing
lines, and especially that these
should be so produced as to give
each one his share of the marsh,
in such wise that all should
have their due proportion of the
river front, which gave value to
the whole. It was contended on
behalf of the bill, that no case
could well stand in greater need
of equitable aid than this, where
it was requisite to define the rights
of the parties to land which had
been formed since their respective
titles were acquired. The suit
might, therefore, be maintained
under the recognized and long
established power of chancery to
regulate boundaries ; or, if not,
that the requisite authority had
been conferred by the act of
April 6th, 1859, providing that
the jurisdiction of the court
" shall extend to the ascer-
tainment of disputed boundaries
which have been confused or
rendered uncertain by lapse of
time, by natural causes or by the
act, neglect or default of any pres-

ent or former owner or occupant."
The court was nevertheless clearly
of opinion that the case did not
come under any of the recognized
heads of equitable jurisdiction, and
therefore was not one where such
jurisdiction could be conferred by
the legislature. It presented a
purely legal question how the lines
of the different parcels were to be
protracted, through the marsh
which had grown out from the
shore, and should consequently be
determined by a court and jury in
an action of trespass or ejectment,
lilte other eases involving the pos-
session of real estate. There was
no insuperable difficulty in bring-
ing the controversy to such a test,
because the complainant might en-
close so much of the marsh land as
he considered to belong to him of
right, and thus put the other par-
ties under the necessity of acqui-
escing or bringing suit. In the
subsequent case of Tilm.es v.
Marsh, IT P. P. Smith, 501, a bill
was filed alleging that the com-
plainant owned a house and lot,
and that the defendant was the
owner of an adjoining house and
lot, with the use and privilege of
a three feet wide alley, extending
between the two houses, and over
the complainants lot, but that the
defendant claimed the privilege of
building above and over the said
alley, and using complainant's wall
as a party wall. The prayer of
the bill was that the defendant be
enjoined from using the said wall
for the support of his house, and
to cease from overhanging the
alley with the upper stories of the
said house, and that the boundary

■WAKE V. CONYERS.

863

line between the premises should
be defined. Sharswood, J., said,
"this is a mere ejectment bill, and
might Iiave been demurred to as
such ; Daniels Ch. Practice, 29. In
Loker v. Solle, 3 Vesey, 4, a bill
in many respects similar to this.
Lord Rosslyn said, " Upon the
face of the bill it is quite clear the
plaintiff may draw a declaration
in ejectment. The bill states the
title, and that by some means or
other, the same persons are in pos-
session of all the lands, and have
confounded the boundaries. If
the complainant had filed a bill for
discovery only, he must have
prayed for the discovery, but it
goes on to pray relief. That is
merely an ejectment." * * * *
It has been solemnly settled by
this court, that an act of Assembly
which should attempt to transfer
any part of the jurisdiction of
common law, to a court proceeding
according to the course of a court
of chancery, and of course without
a jury, would be beyond the power
of the Legislature. In this case
the bill sets up nothing but a legal
right, evaded by the defendants,
and for which a complete and ade-
quate remedy may be had in an
ejectment. The bill admits that
the possession of the defendants,
. extends over the alley. That is a
trespass on plaintiff's close if the
title to the soil is in him. Gujus
est solum ejus est usque ad csdum.
Ejectment will lie to recover pts-
session of the soil subject either
to a public or private easement
over it ; Goodlitle v. Alker, 1 Barb.
133; Cooper v. Smith, 9 S. & R.
26. It is no bar to a recovery,

says Mr. Justice Duncan, that
another possesses a right of way
or pther easement, for the owner
of the soil may maintain an eject-
ment for land over which a high-
way is laid out. There would be
no difficulty here ; the defendants
being in exclusive occupation both
under and over the alley ; either in
the sheriff's returning them as in
possession on the summons in
ejectment, or in giving possession
to the plaintiff, if he should re-
cover a verdict and judgment, upon
the habere facias, subject to the
right of way acknowledged to be
in the defendants. We are of
opinion that the court has no juris-
diction of this bill."

It is well settled in accordance
with these decisions, that to con-
fer jurisdiction in such cases there
must be some equity arising from
the relation between the parties,
or superinduced by the wrongful or
fraudulent conduct of the defend-
ant, in obliterating or destroying
the lines or monuments on which
the evidence of boundary depends.
See Hale v. Darter, 5 Humphreys,
19. It is not enough that the title
of the complainant being equita-
ble, he may be under a difficulty in
bringing or defending himself
against an action of trespass or qect-
ment, because he ought to complete
his title bjr a bill filed for the pur-
pose, and then try the legal question
before the appropriate tribunal ;
see Stewart's Heirs v. Coulter, 4
Randolph, 74 ; Hale v. Darter.

In Ferry v. Pratt, 31 Conn. 433,
the plaintiff's and defendant's farms
were divided by a brook which
crossed the beach and fell into

864

CONFUSION OF BOUNDARIES,

Long Island sound ; and it ap-
peared that the bed of the stream
had been so changed by a violent
storm, extraordinary tides, and
other natural causes, that the boun-
dary was lost, and could net be
fixed or ascertained in the course
of legal proceedings. The com-
plainant therefore prayed the
court to appoint commissioners to
inquire into the facts and settle the
controversy. Butler, J., said, that
relief could not have been granted,
but for the act of 1859, which pro-
vided that in case of a lost, obscure
or uncertain boundary, the court
might appoint a committee to in-
quire into the facts, establish the
bounds, and report to the court on
the want of an adequate remedy at
law. The case in hand was clearly
one of a lost boundary within the
meaning of the statute, and al-
though the commissioners did not
pretend to have ascertained the
original bed of the stream, and
had on the contrary established
a new dividing line, as that which in
their judgment came nearest to the
truth, their course was within the
statutory power, and should be
confirmed. This decision does not
conflict with the authorities in
Pennsylvania, because the consti-
tutionality of the statute was not
touched on during the argument or
considered by the judges.

When the nature of a wrong or
spoliation is such as at once to pre-
clude the possession or enjoyment
of a right, and destroy or suppress
the evidence, through which the
right can best be established, and
the extent of the injury ascertained,
there may be ground for the inter-

vention of a chancellor to afford the
redress which cannot readily be
had in a merely legal tribunal.
Under these circumstances, it may
be for the interest of both parties,
that the defendant should have an
opportunity of making an answer
under oath, which may afford a
measure of the loss, and mitigate
the hostile presumption, that would
take the place of proof. See 1
Smith's Lead. Cases, 64 2 Ted. If A.
wilfully confuses his goods with
B.'s, the law will give the whole to
B. rather than allow him to be a
loser. A. cannot, therefore, reasona-
bly demur to a bill filed for the
purpose of enabling each one to
have his own, and the principle is
the same when boundaries are in-
tentionally confused.

Hence, it is that when the loss
or confusion of boundaries results
from the defendant's act or de-
fault, the case will fall within the
cognizance of a court of equity,
which may appoint commissioners
to determine the line, and direct an
account of rents and profits which
have been wrongfully withheld,
ante, see Merryman v. Russell, 2
Jones Eq. 470.

In Merryman v. Russell, the
bill averred that the defendant
had granted to the complainant
the privilege or easement of an ar-
tificial pool on his, the defendant's
land, together with the dam by
which it was sustained, and 'also a
race leading from the pool over
the said land, and to be used as a
means of supplying water to the
complainant's mill. It was also
averred that the defendant had
broken down the dam and filled the

AGAR V. FAIRFAX. 865

pool and race, and ploughed up dence thro.ugh -which the nature

the soil ; and had done all this so and extent of the injury could be

effectually that it was no longer most readily ascertained and di-

possible to distinguish the place rected that a commission should

■where they had been. The court be issued to determine the site of

held that this was a gross violation the race and the mill dam, and as-

of an undoubted right, attended certain how much it would cost to

with an attempt to efface the evi- replace them.

*AGAR V. FAIRFAX. ' [*447]

AGAR V. HOLDS WORTH.

BOLLS, NOVEMBER 29, 30, 1808. ON APPEAL, NOVEMBER 13, 1809 ;
MAY 28, 30, DECEMBER 11, 1810; MARCH lil, 1811.

EEPOETED 17 VES. 533.

Paetition.] — Decree for partition among several joivt proprietors ;
and no objection from a covenant not to inclose without general con-
sent, rights of common, and the inequality and imcertainty of the
shares in proportion to other estates.

The decree directed a rference to the Master, to inquire whether the
plaintiff and defendants, or cmy or lohich, are entitled ; and in
what shares, according to the respective vcdues of the other estates ;
and then a commission to divide accordingly ; the costs of the par-
tition to be borne by the parties in proportion to the value of their
respective interests ; and no previous or subsequent costs ; by
analogy to the proceeding at law.

The bill stated that Lord Fairfax and other persons were, in
1716, seised in fee of the manor of Bilbrongh, in the county of
the city of York, and of the greatest part of the lands in the
said manor, and also of the whole of the piece of land in the
said manor called Bilbrough Moor, then uninclosed ; and by in-
dentures of bargain and sale and release, dated the 14th of July,
1716, Lord Fairfax and the other persons so seised sold and con-
veyed all the said manor, lands, and Bilbrough Moor, and other
estates in the county of the city of York, to the use of Robert
Fairfax and John Hardwicke and their heirs.

By»indentures of lease and release, dated the 7th and 8th of
September, 1716, reciting that part of the purchase-money
*paid for the premises, conveyed by the former deeds, r*44o-i
was advanced to Robert Fairfax by Thomas March, under •- -■
an agreement whereby he was to become the sole purchaser of
the lands and hereditaments therein mentioned, Fairfax and
Hadwicke conveyed to Thomas March and Arthur March the
several lands, particularly described, situate in Bilbrough, and
VOL. II. — 55

866 PARTITION.

also all the said Thomas March's part and share of and in the
moor or common called Bilbrough Moor, and of and in the soil,
freehold, and inheritance of the same ; which part or share, it
was thereby declared, Thomas March had purchased of Robert
Fairfax, together with the farms and lands thereby granted and
released ; and that the said moor was to be estimated and allotted
between the said Eobert Fairfax and the said Thomas March, and
the other purchasers under Eobert Fairfax and John Hardwicke ;
viz , Charles Eedman, Bernard Banks, Matthew Smith, and
Nathaniel Hird, in proportion to the several farms and lands in
Bilbrough aforesaid by them respectively purchased, and the valu-
ation of the same, whenever the said moor or common called Bil-
brough Moor should happen to be inclosed in time to come; but
reserving to Fairfax and Hardwicke, their heirs and assigns, all the
back lanes and the High Street, and a small waste thereupon in
Bilbrough aforesaid, with liberty to them to inclose the same,
subject, nevertheless (both before and after such inclosure), to
such ways, &c., in and through the same, to be made by the said
Thomas March, his heirs and assigns, as had been anciently and
customarily used and enjoyed by the tenants, owners, or occupiers
of the farms, lands, and premises thereby released to March and
his heirs ; to hold to Thomas and Arthur March, their heirs and
assigns for ever.

The bill further stated that Eedman, Banks, Smith, and Hird
respectively, purchased under Fairfax and Hardwicke divers farms
and lands in Bilbrough, and also several parts or shares of Bil-
brough Moor, and of and in the soil, freehold, and inheritance
thereof, in proportion to the several farms and lands in Bilbrough
r*4.4Ql 'ifoi'ssaid by *them respectively purchased, and what
L -■ should be the value thereof respectively, when the said
piece of land called Bilbrough Moor should be divided or inclosed,
in the same manner as the share of Thomas March in the said
moor was to be estimated and allotted ; and the said messuages,
farms, lands, and premises, and the said parts or shares of Bil-
brough Moor, were conveyed to Eedman, Banks, Smith, and Hird,
and their respective heirs and assigns, in fee simple ; and Fairfax
and Hardwicke retained the remaining part of the said lands in
Bilbrough, and a part or share of Bilbrough Moor, and of and in
the freehold and inheritance thereof, in proportion to the farms
and lands in Bilbrough aforesaid retained by them, and what
should be the value thereof at the time when the said piece of
land called Bilbrough Moor should be divided or enclosed, in the
same manner as the share of the said Thomas March in BilBrough
Moor was to be estimated and allotted.

Arthur March, who was a trustee for Thomas March, died in
his lifetime ; and Eobert Fairfax died in the lifetime of Hard-
wicke ; and by divers mesne conveyances, &c., the whole of the
said premises, conveyed to Fairfax and Hardwicke, and Bilbrough
Moor, became vested in the plaintiff, and such of the defendants
to the original bill, as therein named, in the manner, shares and

AGAR V. FAIRFAX, 867

proportions therein stated ; and they and no other person, were
seised in fee of the whole of Bilbrough Moor, and the freehold
and inheritance thereof, as tenants in common, which had been
used and enjoyed by them, and those under whom they derive
title, as common pasture for horses, &c.

The bill prayed an account of the lands in Bilbrough, conveyed
to Thomas and Arthur March, and those purchased by Redman
and the other persons from Fairfax and Hardwicke, and of the
lands retained by them ; that the value of the said lauds may be
ascertained ; and that a commission may be directed to issue, to
ascertain the value of the said several lands, and the parts or
shares of the plaintift" and the other persons named in Bilbrough
*Moor; and also to allot in severalty, make partition of, r^JCA-i
and divide Bilbrough Moor into six several parts or shares, '- -•
in proportion to the amount of the true and just value of the
several farms and lands in Bilbrough, so conveyed and purchased
or retained ; and that all the said shares of Bilbrough Moor, when
so allotted, may be inclosed, and held in severalty by the plaintiff
and the other persons entitled, &c.

The answer stated, that in each of the derivative conveyances to
the joint or sub-purchasers under Fairfax, are contained covenants
against inclosures of the moor without consent : viz., covenants
by Robert Fairfax and John Hardwicke respectively, with each
of the sub-purchasers, that neither he nor his heirs and assigns
should or would inclose, or cause to be inclosed, any part of the
said moor, other than the back lanes and small waste, as therein
mentioned, without the consent of the said Thomas March, &c.,
his heirs or assigns ; and Thomas March and the other sub-pur-
chasers entered into similar covenants with Fairfax and Hard-
wicke not to enclosed without the consent of them and their
heirs. The answers also stated the persons in whom the estates
so conveyed to Fairfax and Hardwicke were vested ; and that
those persons and their tenants, not exclusively, but together with
others, had enjoyed and exercised the herbage and other rights
and privileges in and upon Bilbrough Moor ; and that the several
rights, shares, and interests of the persons entitled were uncertain,
and in no wise ascertained ; and the defendants submitted, that
such partition as was sought by the bill ought not now to take
place; particularly as such rights and interests, and the other
rights and interests in and to the said moor, were uncertain and
indeterminate, and the parties concerned were not agreed, and had
mot consented to having an enclosure or partition thereof; and
submitted that the case now before the Court was not proper for
a partition and inclosure by a Court of equity, but by Act of
Parliament only, where facilities and benefits might be secured
and objections and inconveniences obviated ; the former of which
could not *be extended, and the latter removed, if the r*4r-i-|
present attempt to obtain a partition and inclosure in this ^ -'
Court should succeed.

Mr. Richards and Mr. Bell, for the plaintiff.

868 PAETITION.

Sir Samuel Romilly and Mr. Hail, for the defendants. — A bill
for a partition under these circumstances is without precedent.
Partition is of common right between parceners, joint tenants,
and tenants in common ; but it could not be compelled either at
law or in equity, except amongst parceners, before the statute of
Henry VIII.,' which gave it to joint tenants and tenants in
common of estates of inheritance ; and in the following year it
was extended to particular estates. It cannot be applied to
interests of any description beyond those defined limits, compris-
ing persons with characters ascertained, and rights perfectly
clear. These persons are represented as quasi tenants in common.
A tenancy in common may be of unequal, but not of unascer-
tained shares. In the declaration between parceners or joint
tenants, the demandant must state the title, and the distinct
shares must appear between tenants in common ; the declaration
must state the title and share of the plaintiff, and the shares
though not the distinct titles of the defendant-s. The statute of
William III.,^ for advancing this remedy, adding particular cere-
monies, declares, that in default of appearance, the Court may
proceed to examine the demandant's title, and the quantity of his
purpart; and shall for so much give judgment by default, and
award writ to make partition, whereby such purpart may be set
out in severalty. The partition can only proceed upon the title so
ascertained on the face of the instrument, not by inquiries.

It cannot be maiutained that common rights form no objection.
The lord could not, except under the Statute of Merton,^ have
enclosed or taken any part of the waste ; and that statute gives
the right of approving, with the qualification, that it shall not
be to the prejudice of the commoners, for v/hom it requires suf-
ficient to be left. Even for the purpose of inclosure, 2:)artition
r*4-''91 cannot be *made in prejudice of that right, and much less
^ -I lor any other purpose. The statute of Edward VI.^ ac-
cordingly declares the right of the commoner to pull down an
inclosure by the lord infringing that right, and gives the remedy
by assize, with treble damages. Eorraerly a greater degree of
strictness prevailed upon partition here than in Courts of law;
and that appears to be Lord iJardwicke's opinion, in Cartwright
v. Pulteney.^ In Lancashire, there are many instances of rights
enjoyed by several persons, capable of being ascertained, but still
uncertain, of which, therefore, they cannot be considered tenants
in common ; and, if ascertained, they could not remain two days
without variation, fluctuating continually, according to the
management, husbandrj', and cultivation of the ditierent pro-
prietors.

This property, therefore, enjoyed in common, but by unascer-
tained, indefinite shares, is incapable of partition. It is impossi-

I Stat. 81 Hen. 8 c. 1, s. 2 ; stat. 32 Hen. 8 c. 32, s. 1.

« Stat. 8 & 9 Will. 3, c. 31, made perpetual by 3 & 4 Ann. c. 18.

» Stat. 20 Hen. 3. * 4 & 5 Bdw. 6., 6 _A.tk. 380.

AGAR V. FAIRFAX. 869

ble to frame a declaration, as the ascertained part cannot be
proved, and no inquiry can be directed for tliat purpose. Further
difficulties arise, from the nature of the property, with reference
to rights long exercised and enjoyed upon it, independent of the
title of these proprietors ; being stocked, the herbage taken, &c.,
as it is said, by persons having no right ; but it might be common
appendant, or because of vicinage ; or common appurtenant, or in
gross ; by grant or prescription. A very formidable impediment
is, the covenant against inclosing without mutual consent, which
can be the only object of partition.

The form of the decree, in these cases, is not general. In
Curzon V. Lyster,^ which was much considered, the direction was,
that the persons named, any three or two of them, should go to,
enter upon, walk over, and survey the land, and make a fair par-
tition, division, and allotment thereof in moieties : one to the
plaintift", the other to the defendant ; and the parts so allotted to
divide by metes and bounds, and to examine witnesses upon such
interrogatories, as they shall see occasion, &c. In some instances,
close commissions were granted, the commissioners *ad- r* i r o-i
ministering an oath of secrecy to the several persons ^ -'
before them. The commission in Curzon v. Lysier originally was
so. But according to Lord Redesdale's clear opinion, that is
erroneous ; the commission is, in all respects, analogous to the
writ of partition. The commissioners are to do what the sheriff
and jury would have done and have no power to make any
inquiry, except as to the very lands to be divided. The commis-
sion being in particular ascertained forms, a new one cannot be
directed, and certain'y not such as is now required, with power
to compel a production of title deeds, to examine witnesses, and
then to go upon each separate estate, ascertain the value, and
divide accordingly, asking, in the alternative, either a commis-
sion or a reference to the Master, for the purpose of all these
inquiries. The result will be several distinct cases, producing all
the inconvenience which the covenant against inclosure without
mutual consent was intended to prevent.

Mr. Richards in reply. — All persons supposed to have rights of
common wei-e made defendants, and all disclaimed except two,
who are parties claiming right of common, without stint, annexed
to houses, directly contrary to law. If there are any common
rights subsisting, they cannot be affected by partition. . Admit-
ting that the shares are not ascertained, that may and will be
done by the commissioners, who will ascertain the shares in
which all these joint proprietors of the land are interested ; and
for that purpose some previous inquiiy may be necessary. In
Calmady v. Galmadyf much previous investigation was required
to ascertain the shares and to make the proper distinction as to
the costs. Tnat course must be taken in every case where the
parties differ as to their respective interests, either by an inquiry

' Cited from a MS. note.

2 3 Yes. jun. 568 ; Reg. Book 1794, A. 460.

870 PAKTITION.

before the Master, or some other means, as in the case of dower,
which is as much a right at law as partition, and depends, in this
Court, on much the same principle. The Court will find its way
to the ultimate purpose ; in the one case, the widow's ri^ht of
r*4'i4l *lovver ; in the *other, a partition among parties having an
■- ^ undivided interest, either as joint tenants, coparceners, or
tenants in ,common.

This is clearly a tenancy in common: the trustees of Lord
Pairfax, seised in fee of the whole, conveying distinct farms and
shares of this moor to the several persons from whom these
parties claim ; under these circumstances, a partition is matter of
right : Parker v. Gerard.^ The shares are, in contemplation of
law, ascertained, if they are capable of being ascertained,
as they are, by reference to the prices paid by the several
parties. In Leigh v. Leigh, a manor, an entire thing, was
the subject of partition ; and it was impossible to know the value
of a moiety of a sixth part without knowing the value of the
whole. The only parties to the cause were those who were en-
titled to a moiety of a sixth ; the commissioners must, therefore,
have taken into consideration a subject of property, in the hands
of persons not parties, and the duty of the commissioners was not
less difficult than what is required by this^bill, — a valuation
having regard to the lands possessed by parties in the cause ; in
that case, a valuation with reference to shares of a manor not be-
longing to any party in the cause. This plaintiff" prays the Court
to declare the rights according to this deed, and that the com-
missioners shall divide according to the rights so declared. That
object must be obtained, if not through commissioners, by a refer-
ence to the Master, under all the circumstances ; these parties
being clearly tenants in common, entitled in shares to be ascer-
tained by comparison of the different farms and respective inter-
ests in the moor. The commissioners are to. exercise their
judgment according to the original price, or rather the present
value, which is the true construction ; and for owelty of partition
they may, in their discretion, give more to one than another.

The covenant not to inclose is merelj^ a private engagement,
and cannot be considered as binding the parties not to apply, to
the law of the country, as a covenant to refer to ai-bitration will
P^ . J. not prevent the party's *assertion of his right in a court
•- -' of justice. This is a covenant inconsistent with the es-
tate, applicable only to certain cases, and cannot prevent partition
for ever. Partition is not within the terms of a covenant not to
inclose, and there may be great advantage from partition without
inclosure. The commission in Gurzon v. Lyster was settled by
the Master, the forms being very different.

Sir "W". Grant, M. R. — I shall take a little time to consider
what will be the proper decree in this case. At present I am

' Amb. 236. See "Warner v. Baynes, Amb. 589 ; Turner v. Morgan, 8 Yes. 14?.

AGAR V. FAIRFAX. 871

strongly inclined not to decree an immediate partition, upon the
grounds that have been stated ; but I wish to consider, whether,
as incidental to the demands of partition, the Court would not
put into a train of inquiry, what are the proportions in which
they are interested in these lands, in order to lay a foundation for
partition afterwards : that previous inquiry to be before the
Master, whether the commission ought not, as the writ alwaj^s
does, to state the proportions in which the partition is to be made.

Sir W. Grant, M. R. — There are two cases in which the Court
referred it to the Master to ascertain the interest of the parties,
and afterwards directed a commission to issue : Galmady v. Cal-
mad'j/- and Duncan v. Howell. The uncertainty of the share is
not a ground for definitely refusing a partition : it is for refusing
it at present. It cannot be referred to the commissioners to as-
certain the interests : that must be done, as in those cases, by the
Court, through the medium of the Master. In one of the cases,
the form of the inquiry was, what undivided shares the several
parties were entitled to, and for what estates and interests therein
respectively.

The way in which it strikes me, is this. The parties have
among them the whole interest in the soil and freehold, which
they possess in common. Some of them seek a partition. It is
said there cannot be a partition, on account of the uncertainty
of their interests ; the proportion *to which each r*4c/>-i
if entitled not being ascertained, that depending upon '- ■'
the quantit}' of interest each has in the estate of another, and
the value of that estate, with reference to which value, the
allotments of this moor are to be made among the parties, the
owners of that estate, and of this moor also. That is no objec-
tion, as they are not the less tenants in common; though an ope-
ration must be performed before it can be ascertained to what un-
divided shares they were entitled as tenants in common. It must
be seen what is the value of their shares in the other estate by
reference to which this allotment is to be made ; and then they
will be in the situation of parties having ascertained interests in
this moor ; but still they are tenants in common, and therefore
have a right to a partition.

It seems to me to have been soundly objected, that it is impos-
sible in the present situation to issue a commission, as then it
must be referred to the commissioners : first, to ascertain their
interests and the proportions in which they are entitled, and then
to make the allotment. The former was never done by commis-
sioners. The Court is to ascertain the proportions and rights of
the parties, and when that is done, then the duty of the commis-
sioners begins, to make the division in those ascertained porpor-
tions.

' 2 Ves. jun. 568.

872 PARTITION.

An objection was then taken to the rights of common over this
moor. The rights of common are no objection to the commission,
as that right will not be in the least affected by the partition,
which regards only the freehold and inheritance of the soil. A
partition never affects the interests of third parties. It is imma-
terial whether others have a right over that soil and freehold,
which they have in common among them. Those rights will
equally remain.

It is then said there is a covenant not to inclose, except by con-
sent of all the parties. I do not exactly' understand what is the
meaning of that covenant. If it is only, as it is expressed to be,
against inclosure, what has that to do with partition ? Partition
|-^._„-. does not require inclosure, but *only that an allotment
'- J shall be made by metes and bounds. Whether they may
have a right to inclose afterwards may depend upon other cir-
cumstances. It may depend upon the rights of third persons over
this land, and upon the agreement of the parties themselves. The
covenant against inclosure may have its effect, and I am not now
called upon to say, whether it shall or not.

It is then said the rule by which the allotment is to be made,
may be very unequal It may be so, but it is a rule they have
laid down for themselves. The inconvenience is of their own
making, by the terms of their own agreement. If they were all
agreed now, that there should be a partition, or that there should
be an inclosure, this inconvenience as to the mode of making the
valuation would still present itself.

There does not appear to me, therefore, in this case, anything
to prevent a partition, after it shall have been ascertained what
are the proportions in which the land is to be divided among the
parties.

The decree declared, that the piece of land called Bilbrough
Moore, is to be allotted according to the present value of the sev-
eral farms and lands in Billbrough, purchased by Thomas March,
&c., and conveyed to them by the several indentures of the 7th
and 8th, and 12th and 13th of September, 1716, and of the farms,
&c., retained by Fairfax and Hardwicke, and directed a reference
to the Master, to inquire and state to the Court what undivided
shares the plaintiff", and such of the defendants as had sxuy estate
of freehold or inheritance in the said moor, under the deeds of
1716, were entitled to or interested in the said moor, and for what
estates and interests therein, respectively, &c. ; and it was ordered
that a partition should be made of Bilbrough Moor, among the
plaintiff and the said defendants, who by the report should appear
to be entitled to any shares of freehold and inheritance of Bil-
brough Moor, under the said deeds of 1716, according to such un-
^*4-^^ divided shares thereof; and it was *ordered, that a com-
L '-' mission should issue lor that purpose, all deeds in the
power of the parties to be produced befote the commissioners,

AGAE, V. FAIRFAX. 873

with liberty to examine witnesses, &c. ; and it was ordered, that
what should be allotted to the several parties, should be held and
enjoyed by them in severalty, and, if any of the parties were
under any disability, they, when capable, and all other proper
parties, should join in executing proper conveyances, &c., for con-
veying and vesting the several shai'es in and to the said parties
respectively, according to their several rights and interests of, in,
and to their several undivided parts and shares of and in the said
moor, the costs of the commission and inquiry, and of the defendant
Parkin (the heir of liardwicke), whose costs were ordered to be
paid by the plaintiff in the first instance, to be borne by the par-
ties interested in the moor, in proportion to what should be their
respective shares and interests in it, with liberty to apply.

From this decree a petition of appeal was presented, submitting,
that, having regard to the nature and uncertainty of the rights
of the parties, as well as of the value, and the particular circum- ■
stances of this case, it is not a case for partition, inclosure, or any
relief to be administered in a Court of equity.

Mr. Richards and Mr. Bdl, for the plaintiff. — Since the case of
Warner v. Baynes^ the difliculty of making partition has
formed no objection in this Court. This case presents no farther
difiieulty then tlfet thiar property is to be divided, not in any cer-
tain specific proportions, thirds, fourths, &c., but according to the
value of certain other estates. There may be some difficulty as to
the proportions, until the valuation of those estates shall be made ;
but from that moment the proportions are accurately defined :
and on that ground that there is no more objection than to a de-
vise of the residue of real estate among children, to make their
fortunes equal, by reference to advances formerly made to them.
This Court would proceed in many cases of complicated circum-

[*459]

stances, from *the intricacy of the title, and the nature of
the shares ; though a Court of law could not. Tenants in
common having a right to partition at law, there must be some
mode of having a calculation if necessary, before their precise
rights as tenants in common can be ascertained. Whatever is
capable of division may be the subject of partition : manors for
instance ; with every right of the lord ; and even the waste
grounds are divided : Sparrow v. Friend (the case of the manor
of Brighton -^ Lane v. Cox (the manor of Eolleston in the county
of Derby). In Parker v. Gerard it was resisted. The property,
situated in the JSforth of England, consisted of cattle-gates, and of

' Amb. 589. See Turner v. Morgan, 8 Ves. 143. In that case the commission
having been executed, an exception was taken by the defendant, on the ground
that the commissioners allotted to the plaintiff the whole stack of chimneys, all
the fire-places, the only staircase, and all the conveniences in the yard. The
Lord Chancellor overruled the exception, saying, he did not know how to make
a better partition for them ; that he granted the commission with great reluct-
ance, but was bound by authority ; and it must be a strong; case to induce the
Court to interpose, as the parties ought to agree to buy and sell.

* Cited from the decree.

874 PARTITION,

certain other rights, of a very peculiar nature ; and partition was
decreed in very minute fractions, according to the rights in the
cattle-gates.

If there were other rights existing over this moor, that would
not be an obstacle to partition among those persons having, by
conveyance to the trustees, rights in the soil or freehold. It is
not, however, made out, and cannot be presumed, that there are
rights of common, as stated by the bill ; they cannot be sup-
ported at law. There is no proof, as suggested, that they were in
the habit of taking greensward or sods, earth and soil, from the
waste of the manor ; and no such right of common exists at law.
As to furze and whins, &c., none of these are stated as rights of
common ; they merely say, they have been in the habit of taking
them. A covenant not to divide is not legal. There is no de-
fect of parties ; and the decree is right in form, following the
precedent of Duncan v. Howell, referring it to the Master to in-
quire what undivided shares the several parties were entitled to
in the estate in question, and of what estates ; and directing par-
tition to be made among the parties who, by the report, shall ap-
pear entitled to any share of the estate, according to the shares ;
and that a commission should issue for that purpose, with the
usual directions.

Sir Samuel Romilly and Mr. Hall, for <the defendants. — There
is no instance of such a bill as this ; and the consequences it will
r*4fi01 ^^^^ *° must be very important. The cases *referred to
L -'in the Registrar's book have no application. They are
cases of complicated interests, in which it was very difficult to
ascertain in what proportions the parties were interested. There
is no authority for the general principle, upon which it is at-
tempted to maintain the bill. This is the case, not of all the
owners except one agreeing, but of one, against the consent of all
the rest, claiming a partition and conveyance, contrary to the ex-
press covenant, entered into on account of the difficulty, that
there should be no partition unless they should all agree. If
such a bill can be maintained upon cattle-gates and common
rights, why is application made to the legislature to divide com-
mon rights? The difficulty, from the number of parties may be
overcome by the expedient of making some represent the rest,
where it would be inconvenient to bring all before the Court.

All the authorities state, that a bill for partition is exactly the
same as the writ at common law, with this single distinction,
that, under the writ, those only are bound who are entitled to a
subsisting estate of freehold, not those entitled in remainder,
whom a Court of equity will bind as well as those who have par-
ticular estates. On that ground, Sir T. Clark, in the case of
Parker v. Gerard,^ held, that this bill is matter of right, and
therefore no costs shall be given, as there are none upon the writ.
Upon those principles, the Court has granted partition where it
must be ruinous to all the parties, as in the case of the house,

»Amb. 336.

AGAR V. FAIRFAX. 875

Turner v. Morgan.^ Upon the same principle in Parker v.
Gerard, the interest of one party being so inconsiderable that he
would have preferred giving it up, he was compelled to make
partition, and to pay an equal share of the expense. A stronger
instance cannot be produced, that the Court in these cases acts
ministerially, rather than judicially. In many instances, where
from the complication of the interests, the writ would not lie,
this Court would decree partition, which will not be prevented
by the difficulty of the division ; nor, if it is to be in very small
fractions, where they are clearly tenants in common, of ascer-
tained shares, *can it depend on the amount of interest, r* . pi -■
In Parker v. Gerard, the Master of the Rolls states the ' J

injustice which the Court is frequently compelled to do, having
no discretion upon the subject. The objection of difficulty is
very strong in the case of an advowson.

How can such a decree be executed ? A considerable time may
elapse between the report and the partition, and the value at the
latter period, upon which the shares must depend, may be mate-
rially varied. The consequences of this jurisdiction may be easily
imagined. Some of these estates, having fallen to femes covert,
infants, or persons in remote situations, may have been suffered
to deteriorate ; and that moment would be seized, by a person
who had improved this, taking advantage of the consequence of
superior wealth or the neglect of the others, to claim partition.
For the very purpose of guarding against that, from a foresight
of the difficulty, confusion, and injustice to which it would lead,
was this covenant against inclosure, except by general consent,
introduced. It is said, the covenant is void, as inconsistent with
the nature of the estate, and it would be so ; but this is the case,
not of tenants in common, standing upon the common-law right,
but of persons agreeing to hold, and looking to partition, in a
mode not according to the law, protecting themselves against the
improvidence of such an agreement in an unlimited way ; and
one of the parties to that special contract desires now to have a
part performance, striking out that express provision for the con-
sent of all. A court of equity does not administer that peculiar
and extraordinary relief, a specific performance of a contract,
where the effect will be injustice, but leaves the parties to the
law ; and this is a case most proper for the exercise of that dis-
cretion. Another difficulty arises from the rights of common of
estovers and turbary, the bill stating the manner in which those
rights have been always enjoyed.

The constant course of these decrees, is first to ascertain the
shares, and then to come for a partition ; and it may be doubted,
whether one of the cases referred to from the *Registrar's ^^ . .„-,
book, in which that course appears not to have been fol- ^ -'
lowed, was an adverse decree. The reference, therefore, in the
first instance, ought to be to ascertain, not the interests, but the
value computing the outgoings, &c., so as to ascertain the value

1 8 Yes. 143.

876

PARTITION,

at the time of division ; but if the course is not to come to the
Court again, the commissioners must both ascertain the value,
and make the division in the first instance, which vs^ould be very
inconvenient ; and there is no instance of such a discretion in
commissioners, the Court only giving them the rule. This has
not the character of a tenancy m common, in certain shares and
proportions ; and besides uncertainty, another objection is, that
nothing passed immediately by this deed. The objection of un-
certainty here is much stronger than in the case put by Walmesley
in Corhett's case,^ where the whole estate went to each on dif-
ferent days ; but this consists of a great number of minute shares,
constantly varying. They may have unequal shares, as Lord Hard-
wicke observes f but they cannot be uncertain. The statute of
Hen. 8,^ gives partition between joint tenants and tenants in
common, in the same manner as it previously could have been
had between parceners. It was necessary, therefore, to obtain
judgment in the same way upon the title in joint tenancy. And
as tenant in common, the defendant was obliged to state his title
and share and the shares of the others, though he could not know
their titles, and a mistake in stating the shares was fatal. Upon
what ascertained share could any of these proprietors have de-
clared ? They calculate upon the value, which cannot remain
the same for two days ; and that objection of uncertainty applies
equally to the whole and all the component parts ; the number
of shai-es always varying, and consequently the amount of each
share. ISTo instance can be produced of partition under this diffi-
culty, arising from the number of shares constantly varying, and
an express provision that they should remain unascertained and
indefinite.

Lord Chancellor Eldon. — The plaintiff in this cause is entitled
r*4. Qi to a partition ; but the decree, though in terms *as near
•- ■'as possible to the case of Duncan v. Howell, I think is not
in form the exact decree authorised, under the circumstances of
this case, by that precedent. The variation, however, will be in
form merely, not in substance. The ground upon which the case
of Calmady V. Galniady (2 Ves. jun. 568) proceeded was, that the
plaintiff, showing, title to a pait of the estate, was entitled to
have a partition ; and though the titles of the defendants were
not proved, a reference to the Master was directed for the pur-
pose of ascertaining them ; and the report finding that the plain-
tiff' and the defendants were entitled to the whole subject, upon
further directions the decree was made for a partition according
to the shares so ascertained. I cannot find any other instance of
such directions given as to the costs. How can I make infants
pay costs ?

This Court issues the commission, not under the authority of
any Act of Parliament, but on account of 'the extreme difficulty attend-

' Co. 76. See 78, a. ' 3 Ves. 81. ^ gtat. 31 Hen. 8, c. 1.

AGAR V. FAIRFAX. 877

ing the process of -partition at law ; where the plaintiff must prove
his title, as he declares, and also the titles of the defendants ; and
judgment is given for partition according to the respective titles
so proved. That is attended with so much difficulty, that by
analogy to the jurisdiction of a Court of eqwty in the case of doiver, a
partition may be obtained by bill. The plaintifi' must, however,
state upon the record his own title and the titles of the defend-
ants ; and, with the view to enable the plaintiff to obtain a judg-
ment for partition, the Court will direct inquiries, to ascertain,
who are, together with him, entitled to the whole subject. If,
therefore, the state of the record, as originally framed, is not such
as to authorise the Court to say, that the plaintiff and the defend-
ants are respectively entitled in distinct shares, comprehending
the whole subject, the proper course is to direct a reference to the
Master, to ascertain what are the estates and interests of the
plaintiff and defendants respectively ; and, if it appears that they,
or some of them, are entitled to the whole, then to order a parti-
tion, according to the rights of all, or such of them *as r^AnA-i
appear entitled ; dismissing the bill as against those who '- ^
do not appear to have any right.

The decree in Calmady v. Galmady is perfectly regular ; direct-
ing the inquiry, and afterwards a commission to issue, to divide
the estate among the st'veral parties, who appear upon the
Master's report entitled to it. The omission in this decree to re-
serve further directions, is a mere informality, in not reserving a
mode of dismissing from the record those who may have no title.
Considerable difficulty arises in this case, from the covenant not
to inclose.

The order afterwards pronounced by the Lord Chancellor,
directed the decree to. be affirmed, with the alteration after men-
tioned ; viz. : instead of the words, " after the direction for the
partition to be allotted, according to the present value of the
several farms and lands in Bilbrough, purchased, &c.," inserting
the following words : " in shares according to the present respect-
ive values of the several farms and lands in Bilbrough respectively
purchased ; " and adding a declaration, that the plaintiff", being
entitled to an undivided part of the said piece of land, called
Bilbrough Moor, has a right to call for a partition of the said
piece of land, as between him and the several persons entitled to
the rest of the said .piece of land : such partition to be made
according to the declaration before mentioned ; and directing a
reference to the Master, to inquire and state, whether the plaintiff"
and the defendants respectively, or any and which of them, are
entitled to the freehold and inheritance of Bilbrough Moor ; and
how, and if it shall appear that all or any of them are so entitled
to the said moor, then to ascertain the respective values of the
farms and lands respectively purchased as aforesaid ; and, having
so ascertained the respective values of the said farms and lands,
the Master is to ascertain, as among the plaintiff' and the defend-

878 PARTITION.

ants, whom he shall find to be entitled to Bilbrough Mooi', in
what undivided shares they are respectively entitled, according
r*4fi'^1 *° ^^^ declaration *before mentioned ; and in that case, a
'- -^ commission to issue to divide the said moor among the
plaintift" and defendants, who, by the report, shall appear entitled
to any shares of the freehold and inheritance of Bilbrough Moor,
under the deed of 1716, according to such undivided shares
thereof ; with the usual directions for the production of deeds,
&c., and liberty to examine witnesses ; the shares allotted to the
several parties to be held and enjoyed by them in severalty ; and,
if any parties appearing entitled to shares in Bilbrough Moor, are
under &,ny disability, and not capable of making the conveyance,
they, when capable, and all other proper rarties, to join in all
proper conveyances, &c., respectively, aLCording to their several
rights and interests of and in the several undivided shares of the
said moor ; and if the Master shall not find the plaintift" and de-
fendants, or any of them, entitled to the freehold and inheritance
of the said moor, to state that to the Court, before any further
proceedings ; and the consideration of costs and further directions
was reserved, with liberty to apply.

The cause was heard (Dec. 11, 1810), for further directions, and.
upon the costs.

Mr. Richards and Mr. Bell, for the plaintift". — The rule laid
down in the ease of Calmady v. Galmady^ is, that in these cases
the costs are given in proportion to the interests of the parties.
The decree, distinctly directing the costs of the plaintift" to be
raised out of the estate, certainly has no such direction as to the
costs of the infant defendant, whose costs, however, ought, upon
the same principle, to be a charge upon the estate of the infant.
The old rule that prevailed previously to that case, certainly
operated as a great hardship, where one part-owner might have a
single acre, and another ten thousand.

Sir Samuel Romilly and Mr. Hall, for the defendants.
* — The Court is now called upon to lay down a new rule

[*466]

as to the costs in a suit for partition. Formerly, in most

' The decree in that cause declared, that, the cause coming on for further
directions, the report of the commissioners was confirmed, and it was ordered,
that, when the defendant, Hamlyn, an infant, shall attain the age of twenty-one,
the plaintiffs and the said defendant shall execute mutual conveyances to each
other of the several parts of the estate allotted to them ; and in the meantime
the plaintiifs and the defendant to hold and enjoy the several parts of the i state
so allotted, &c. ; and tl at the costs of issuing and executing the said commis-
sion of partition, and also the costs of making out the title to the several parts
of the said estate, be paid and borne by the plaintiffs and the said defendant,
the infant, in the shares and proportions in which they are respectively entitled
to the said estate under the said commission ; and it was ordered, that such
costs of the plaintiffs be raised by the plaintiffs, the trustees, in the settlement
made vipon the marriage of the plaintiff Calmady, by sale or mortgage of the
estate in the settlement, according to the trusts of the settlement.

AGAR V. FAIRFAX. 879

cases costs were not given, and the rule never could have been as
represented in Parker v. Gerard (Amb. 236), that they shall be
paid in equal moieties. The case of partition has been considered as
analogous to that of dower, in which there are no costs. In Cal-
mady v. Calrtiady, both at the bar and by the Court, the previous
cases were distinguished into two classes: where costs had been
and where they had not been given ; and the costs of the commis-
sion were distinguished from costs of the cause. A new rule
upon this subject should not be laid down without consideration,
as the effect njay be mischievous: for instance, where there is an
interest extremely minute, two or three acres only, and in rever-
sion, the old rule, giving no costs, may have the salutary efJfect of
preventing a suit by one against the inclination of all the other
parties. In many cases, the onlj' way of providing for a portion
of the costs may be by selling the interest : perhaps the interest
of an infant in settlement ; and if in reversion, the whole might
be exl^austed. The apportionment of costs ought also to extend
to the interests of persons not in esse. These, and many other
instances, show the wisdom of the old rule, and its justice, con-
sidering that a suit for partition is admitted only as being more
convenient than the common-law writ. By the decree in Calmady
V. Calmady ^UBiiCQ was done most imperfectly, as no reason can
be assigned for not apportioning the costs, previous to the hear-
ing, as well as the subsequent costs. The effect in this case will
be, that persons brought by the plaintiff before the Court are to
pay costs to the hearing, because they have set up a claim which
has not succeeded. The plaintiff in this suit is bound to state
who are jointly interested with him ; and there is no instance of
making a defendant so brought before the Court, pay the costs of
a claim set up by him though mistaken. He does not appear
voluntarily before the Court. This application is new in another
respect : the plaintiff desiring the costs of those *who, as rs^f^y-i
the defendants insisted, set up a claim, but who have dis- ^ J
claimed. The defendants, having only given notice that such a
claim was set up, ought not to pay those costs. The plaintiff"
ought also to state how the costs of those defendants who are not
Bui juris are to be paid : whether by a sale of their interest, or in
what other manner.

Lord Chancellor Eldon. — This is really the great question,
how costs are to be paid on partition. Several cases'have occurred
since Calmady v. Calmady ; and I wish to know whether the'
practice has been uniform. It is, I apprehend, universally true,
that no costs are given, up to the hearing ; of which I do not
know an instance. As to the costs of making out the title being
borne in proportion to the respective interests, that does not seem
very just; as the expense may be greater of making out the title
of a share worth 50^., than of one of the value of 5000^. On the
other hand, the decrees are short, in not providing that the costs
of infants and married women shall be borne by the share in re-

880

PARTITION.

spect of which they were incurred. My impression is, that all
the subsequent decrees have followed Calmady v. Calmady.

The Lord Chancellor gave judgment upon the question of
costs ; declaring ' that, as the party came into equity, instead of
going to law, for his own convenience, the rule of law should be
adopted, and therefore, no costs should be given until the com-
mission ; that the costs of issuing, executing, and confirming the
commission, should be borne by the parties, in proportion to the
value of their respective interests; and there should be no costs of
the subsequent proceedings.

Although Mr. Hargrave, in his note to Co. Litt. 169, b., has treated
the jurisdiction of equity to compel partition between joint owners of
r*4fi8l ■'^^^^ estate, as of modern origin, and as trenching upon th« *writ
of partition, and wresting from the Courts of common law
their ancient exclusive jurisdiction over the subject, he cites a case in
Tothill, so far hack as the 40 Elizabeth (see tit. " Partition,") which
one might suppose would almost give the jurisdiction the sanction of
antiquity. It is, indeed, by no means clear that Courts of common
law exercised exclusive jurisdiction over the subject, as Mr. Hargrave
has assumed ; but be that as it may. Courts of equity most probably
assumed concurrent jurisdiction, not only, as is laid down in the prin-
cipal case, from the extreme difficulty attending the process of parti-
tion at law, but also from the inadequacy of Courts of law, by the writ
of partition to deal properly with those cases in which partition was
often desired. Many instances might be mentioned, in which the defi-
ciency of Courts of law, in proceedings on the writ of partition was
supplied in equity, which appears, in an enlarged and liberal manner,
to have acted upon the well-known rule of the civil law : " In com-
munione vel societate nemo compellitur invitus detineri." — Cod. Lib. 3,
tit. 3'7, 1, 5. But as the writ of partition has been abolished (see 3 &
4 Will. 4, c. 2T, s. 36), so that equity has now exclusive jurisdiction, it
seems immaterial further to investigate this subject.

Previous to 4 & 5 Vict. c. 35 (amended by 21 & 22 Yict. c. 94), the
Court of equity had no power to direct the partition of copyholds nor
•of customary freeholds: it is given, however, by the 85th section of
that Act (Horncastle v. Charlesworth , 11 Sim. 315 : Jo2Je v. llorshead,
6 Beav. 213 ; Clarke v. Clayton, 2 Giflf. 333 ; Boivles v. Bump, 9 W. R.
(V. C. S.) 370) ; nevertheless, before the passing of that Act, the Court
might decree specific performance of an agreement to divide copyholds
{Bolton V. Ward, 4 Hare, 530) ; or where there were both freeholds and
copyholds to be divided, the Court might direct such a partition

■ Ex relatione.

AGAR V. FAIRFAX. 881

as to give the entire copyhold to one party, and the freehold, or a part
of the freehold, to the other (Dillon v. Coppin, 6 Beav. 217, n. ; Jojje
V. Iforshead, 6 Beav. 21T, n.).

A decree of partition is a matter of right : Baring v. Nash, 1 V. &
B. 554 ; Parker v. Gerard, Am. 236. And it is no objection to a bill
for partition, that the interests of all parties will not be finally bound
by it. Consequently a decree may be obtained either by or against a
person having only a limited interest as tenant for life (Gas/cell v. Gat;-
kell, 6 Sim. 643) ; or tenant for life determinable upon marriage (Hob-
son V. Sherwood, 4 Beav. 184 ; or a tenant for a term (Baring v. Nash,
1 V. & B. 551 ; Heaton v. Dearden, 16 Beav. 141) ; or where there are
remaindermen who may come into esse and be entitled, for they will be
bound by a decree made against *the tenant for life ( Wills v. r^jf-n-i
Slade, 6 Ves. 498). And in Gaskell v. Gaskell, 6 Sim. 643, ^
Sir L. Shadwell held, that a decree for partition would be binding on
the unborn sons of the tenant for life of an undivided moiety of an
estate, who, when they came into esse, would be tenants in tail ; but as
an agreement for a partition had been entered into between the tenant
for life and the owners of the fee, of the other moietj-, an inquiry was
directed, whether it would be for the benefit of the future issue of
the plaintiff, that the agreement, either with or without variations,
should be carried into effect. And his Honor said, that, in Martyn v.
Ferryman (1 Ch. Rep. 235), the Court decreed a partition, notvvith-
standing femes covert, infants, and incumbrancers were concerned.

A person when entitled in possession only can file a bill for partition.
It has been held, therefore, that a bill for a partition cannot be main-
tained by a joint-tenant or tenant in common in reversion or remainder
(Evans v. Bagshaw, 8 L. R. Eq. 469 ; 5 L. R. Ch. App. 340) ; nor can
he after he has filed a bill, by acquiring a title in possession and amend-
ing his bill, put himself in a better position. lb.

A mortgagee of an undivided share may file a bill for foreclosure and
partition, and may move for a receiver of the rents of the undivided
share of the mortgagor: Fall v. Elkins, 9 W. R. (M. R.) 861.

A partition, however, appears not to be properly- incident to a fore-
closure or redemption suit in such a way, that the owners of the equity
of redemption can be allowed to insist on it against the will of the
mortgagee, who has no interest in the question : Watkins v. Williamis,
3 Mac. & G. 622.

The title of the plaintiff to an interest in the property of which he
seeks partition must be shown, and if he can show none, his bill will be
dismissed : Parker v. Gerard, Amb. 236 ; Jape v. Morshead, 6 Beav.
213.

Where, however, there is only a small failure in the proof of title, or
the interests of the parties in the property are uncertain, they may be
ascertained by a reference, but this must be done previous to a com-
VOL. II 56

PARTITION.

mission issuing ; for, as is laid down in the principal case it is not the
duty of the commissioners to ascertain the proportions and rights of
the parties : their duty commences when they are ascertained, and they
will then have to make a division between the parties in those ascer-
tained proportions : Galmady v. Galmady, 2 Ves. jun. 568 ; Cole v.
Sewell, 15 Sim. 284 ; Jope v. Morshead, 6 Eeav. 213. The uncertainty,
therefore, of what are the shares of the diflferent parties, is an objec-
tion, not to partition altogether, but to partition until such shares have
been ascertained.

r*i.'7ril *-^ ^^^^ ^'^^ ^ partition cannot be made the means for trying a
disputed title. Thus in Slade v. Barlow, 1 L. R. Eq., 296, a plain-
tiff claiming to be legally entitled to an undivided share in a freehold
estate, filed a bill for partition, raising the question, whether upon the con-
struction of the settlor's will, the estate passed under a specific or under a
residuary devise, it was held by Sir W. M. James, V. C, that the Court
had no jurisdiction to try such a question in a partition suit, and the
bill was ordered. to be retained for a year with liberty to the plaintiff to
bring such action as he might be advised. See also Potter v. Waller, 2
De G. & Sm. 410 ; Giffard v. Williams, 5 L. R. Ch. 546, reversing.
S. C, 8 L. R. Eq. 494 ; Bolton v. Bolton, 1 L. R. Eq. 298, n.

With the consent, however, of the parties the Court has, it seems,
decided a disputed question in a partition suit : Burt v. Hellyar, 14 L.
R. Eq. 160 ; 41 L. J. Ch. (N. S.) 430.

On the death, after decree, of a person entitled to a share, the Court
will direct, in case he has devised it, that it should be allotted to his
devisee : Valentine v. Middleton, 2 Ir. Ch. Rep. 93.

The inconvenience or difficulty in making a partition will be no ob-
jection to a decree. See Warner v. Baynes, Amb. 589 ; Parker v.
Gerard, Amb. 236. So in Turner v. Morgan, 8 Ves. 143, there was
a decree in a partition of a single house, and Sir Samuel Romilly, in
his argument, mentions the case of one Benson, an attorney at Cocker-
mouth, where the partition was actually carried into effect by building
up a wall in the middle of the house ; and it appears from a note in the
principal case (ante, p. 458), that after the commission in Turner v.
Jforgra?! had been executed, an exception was taken by the defendant,
on the ground that the commissioners allotted to the plaintiff the
whole stack of chimneys, all the fire-places, the only stair-case, and
all the conveniences in the yard ; but Lord Eldon overruled the excep-
tion, saj'ing, he did not know how to make a better partition for them ;
that he had granted the commission with great reluctance, but was
bound by authority, and it must be a strong case to induce the Court
to interpose, as the parties ought to agree to buy and sell.

It is not, however, necessary that every house on an estate should be
divided, if a sufficient part of the whole can be allotted to each ; and
in making a division the Court may direct the convenience of the par-

AGAR V. FAIRFAX. 883

ties to be taken into consideration. Thus, in Earl of Clarendon v.
Hornby, 1 P. Wms. 446, a partition was decreed of the estate lately Sir
Joseph Williamson's, two-thirds wliereof belonged to Lady Theodosia
Bligh, and one-third tothe *defendant Hornby ; the estate con- r^JYil
sisted (amongst other things) of a great house, called Cobham
House, and Cobham Park, in Kent, and of farms and lands about it of
lOOOL a year ; the defendant Hornby insisted to have a third part of
the house, and also a third part ot the park assigned to him b}' the
commissioners who were to make the partition. But Lord Macclesfield
recommended, that, since the plaintiff Bligh and his wife were to have
two-thirds, that the seat and park should be allowed to them, and that a
liberal allowance out of the rest of the estate should be made to the
defendant, in lieu of his share of the house and park. " Care," said
his Lordship, " must be taken that the defendant Hornby shall have a
third part in value of this estate ; but there is no colour of reason that
any part of the estate should be lessened in value, in order that the
defendant Hornby should have one-third of it ; now, if Mr. Hornby
should have one-third of the house and of the park, this would very
much lessen the value of both.

" If there were three houses of different value to be divided amongst
three, it would not be right to divide every house, for that would
he to .spoil every house ; but some recompense is to be made, either by
a sum of money, or rent for owelty of partition to those that have the
houses of less value.

" It is true, if there were but one house, or mill, or advowson to be
divided, then this entire thing must be divided in manner as the other
side contended ; secus when there are other lands, which may make up
the defendant's share.

" By the same reason every farroi-house upon the estate must be divi-
ded, which would depreciate the estate, and occasion perpetual conten-
tion ; and it may be the intent of the defendant, when this partition is
made, to compel the plaintiff to give the defendant forty years' pur-
chase for his third of the house and park." And see Watson v. Duke
of Northumberland, 11 Ves. 162; Lister v. Lister, 3 Y. & C. Exch.
Ca. 540.

In a case, where a partition had been directed between two co-heir
esses. Sir R. T. Kindersley, T. C, said " It appears to me what the
commissioners ought to do in this case is, that having divided the prop-
erty into two equal parts, they should consider all the circumstances
of the parties and the propertj^ Suppose, for example (which some-
times happens), that one of the parties has property in a particular
county or parish, and that one of the allotments is contiguous to the prop-
erty already belonging to one party, and there is another allotment not
contiguous, that would be a good ground,»cafter-is^art&Ms,for allotting

884 PAETITION.

that particular portion to the individual to *whom it is much
L -' more convenient to have it than the other. They may also take
into consideration the circumstances that one of these is the eldest
daughter, and therefore, although she has no right of priority of choice,
still her being the elder is a circumstance which the commissioners may
consider to be a ground, ceteris paribus, of coming to a decision on the
allotment. So, again, j'ou have the circumstance that she is a married
lady, and that her husband has taken the family name, and has no man-
sion, and it is proposed that they should keep up the family mansion ;
and when the commissioners are looking into the matter, they must ex-
ercise their discretion, and give the lots with reference to that state of
circumstances ; although the fact of the plaintiff being the eldest daugh-
ter constitues, as I conceive, no right or claim under the commission to
priority of choice." Per Sir R. T. Kindersley, V. C, in Canning v.
Canning, 2 Drew. 436.

"If the commissioners can find nothing to guide their discretion, as
a last resort they may draw lots." lb. 431. '' If they cannot agree as
to what they ought to do, they ought to make separate I'cturns, so that
the Court may deal with the separate returns as it may think advisable,
and not a joint return, saying they cannot agree." lb. 437, 438. " The
Court has no authority where the commissioners cannot agree to ap-
point a person to draw lots." lb. 438.

Moreover, for the sake of convenience, in equity a recompense may
be made, either by a sum of monej', or rent for equality, or owelty of
partition ; The Earl of Clarendon v. Hornby, 1 P. Wms. 446 ; Warner
V. Baynes, Amb. 589 ; Siory v. Johnson, 1 Y. & C. Exch, Ca. 538 ; S.
C, 2 y. & C. Exch. Ca. 586, 610, 611. This could not have been done
under the writ of partition at law : Co. Litt. 176, a., b., 168, a. Little-
ton has indeed spoken of a rent-charge for owelty, or equality of parti-
tion: Litt. 251. But, as observed by Mr. Justice Story, this is not in
a case of compulsory partition by writ, but a voluntaiy partition by
deed or parol: 1 Story Eq. Jur. 534, n. 4.

But the commissioners themselves unless directed by a decree (Bri-
ant V. Mann, 1 Seton on Decrees, 580, 3rd Ed.) have, it seems, no
power to award sums to be paid for owelty of partition : such power
rests with the Court; and in BLAe v. Mansfield, 15 Sim. 41, where the
commissioners had awarded certain sums to be paid for such purpose.
Sir L. Shadwell, V. C, said, XXiej had no power to do so ; and, one of
the parties being an infant, he directed the Master to inquire and state
whether it was fit and proper that the sums awarded should be accep-
ted. See Peers v. Needham, 19 Beav. 316.

Although, in point of law, a defendant *to a bill for partition
L ' -I may not have a lien on the premises for money expended in
buildings and improvements, the plaintiff will not be allowed to take
advantage of that expenditure without making an allowance ; the* Court,

AGAR V. FAIRFAX. 885

therefore, will not interfere but on such terms, and will order a refer-
ence to take an account of what has been expended necessarily, or with
the concurrence of the plaintiff: Swan v. Swan, 8 Price, 518. And
where one joint owner appears to have received more than his share of
the rents and profits of the estate, the Court will direct an account, and
will not, in analogy to proceedings at law for a partition, confine its re-
lief merely to partition (Lorimer v. Lorivier, 5 Madd. 363 ; Hill v.
Fulbrook, Jac. 574 : Story v. Johnson, 1 Y. & C. Exch. Ca. 598 ; S. C,
2 Y. & C. Exch. Ca. 586) ; or if he has been in possession, he will be
charged an occupation rent (Turner v. Morgan, 8 Ves. 145).

A tenant in common, however, occupying the premises, but admit-
ting some co-tenants, and not excluding any, is not so chargeable {M^-
Mahon v. Burchell, 5 Hare, 322), though he is chargeable if he excludes
the others (Pascoe v. Swan, 2'r Beav. 508). Unless however a tenant
in common in possession be charged with an occupation rent, he is not en-
titled to any account of substantial repairs and lasting improvements
on any part of the property : Teasdale v. Sanderson, 33 Beav. 534. See
Swan V. Swan, 8 Price, 518.

A mill may be divided by giving to the parties every otlier toll-dish,
as would have been done at law in case of the writ de partitione faci-
enda ; and in this case eeqiiitas sequitur legem : Earl of Clarendon v.
Hornby, 1 P. Wms. 447, per Lord Macclesfield.

It was also said by Lord Macclesfield, that an advowson might be di-
vided by giving every other presentation to the church. Ih. In the
case, however, oi Johnstone v. Baber, 6 De G. Mac. & G. 439, the right
to present to an advowson being vested in tenants in common, it was
held by the Court of Appeal in Chancery overruling the decision of Sir
John Romilly, M. R. (22 Beav. 562), that the right to nominate wa^ not
to be exercised according to seniority, but was to be determined by
lot.

In such cases, the Court would, it seems, direct the partition at once,
by decree, without resorting to a commission : Bodicote v. Steer, 1
Dick. 69 ; Seton on Decrees, 586, 587, 3rd Ed.

But under the Partition Act, 1868, the Court might order the advow-
son to be sold, and the proceeds to be divided amongst the parties ac-
cording to their interests: Young v. Young, 13 L. R. Eq. 174, cited.

Partition of a manor may be decreed : Sparrow v. Fiend, Dick.
*348 ; Hanbury v. Hussey, 14 Beav. 152 ; Ley v. Cox, lb. 157 ! ,-* tr n
Gattley v. Arnold, 4 K. & J. 595. '^ ^ ' *J

A partition never aflfects the rights of third parties ; for instance, in
the principal case, it was held, that the rights of common of others over
the soil and freehold, which the parties to the bill had in common
amongst them, would not be affected by the partition.

For this reason, as a mortgagee of the premises is entitled to the

PARTITION.

whole, and not affected by a partition, he will not be a necessary party
to the suit : Swan v. Swan, 8 Price, 518. ~

Where, in a suit for partition, the defendants are desirous that there
shall he no partition of their several shares, the partition maj' be con-
fined to the aliquot share of the plaintiff': Hohson v. Sherwood, 4 Beav.
184.

Where the shares have been allotted to each of the parties by the
Commissioners, the partition is perfected by reciprocal conveyances :
and one party cannot impose upon another as a condition of his execu-
ting a conveyance, that all the other parties must join in the convey-
ance to him : Orger v. Spark, 9 W. R. (V. C. W.) 180. And see Bowra
V. Wright, 4 De G. & Sm. 265.

Where the shares of the parties were very minute and complicated,
the Court, in order to save expense, instead of directing a conveyance
of the several shares, has declared each of the parties trustees as to the
shares allotted to the others of them, and then vested the whole trust es-
tate in a single new trustee under the Trustee Acts, with directions to
convey to the several parties their allotted shares : Shepherd v. Ghurch-
hill, 25 Beav. 21.

If infants are parties, the conveyances will be respited until they come
of age, and a day will be given them to show cause against the decree.
See Brook v. Hertford, 2 P. Wms. 518, 519; Tuckfield v. Buller, 1
Dick. 240, Amb. 197 ; Thomas v. Gyles, 2 Vern. 232 ; Wills v. Slade,
6 Ves. 498 ; Attorney- General v. Hamilton, 1 Madd. 214. Where, how-
ever the legal estate of the share in which an infant is beneficially inter-
ested, is vested in trustees, the order need not contain a direction for
the infant to execute a conveyance when of age, as the decree of the
Court will bind the equitable interest of the infant, and the trustee may
make an immediate convej-ance of the legal estate : Cole v. Sewell, 17
Sim. 40.

It seems now that under the Trustee Act, 1850, ss. T and 30, the
Court, in a partition suit, instead of giving an infant a day to show
cause, may declare him a trustee of such parts of the property as are
allotted to other parties : Bowra v. Wright, 4 De Gex & Sm. 265. So
where in a suit for the partition of lands in which a lunatic was enti-
tled to an * undivided share, a partition had been made, and the
L -' lunatic declared a trustee within the Trustee Act, 1850, and on
a partition by the lunatic to have the partition carried into effect, the
Lords Justices have, under the Trustee Act, 1850, and the Lunacy Reg-
ulation Act, 1850, directed the committee. to convey according to the
partition : Be Bloomar, 2 De G. & Jo. 88 ;- see also, Moorehead v. Moore-
head, 2 I. R. Eq. 492 ; 1 Seton Dec. 581.

Partition at law, in this respect, differed from partition in equity, for
in the former no conveyances were requisite, as it operated b}' the judg-
ment of the Court of law, in pursuance of which, possession was at

AGAR V. FAIRFAX. 887

once delivered up, and the rights of all parties were thereupon con-
cluded. See Whaley v. Dawson, 2 S. & L. 371, 3Y2.

The rule laid down by the Lord Chancellor in the principal case, as
to costs, was this, that as a party comes into equity, instead of going
to law, for his own convenience, the rule of law ought to be adopted,
and therefore no costs would be given until the commission ; but that
the costs of issuing, executing, and confirming the commission, should
be borne by the parties in proportion to the value of their respective
interests, without any costs of the subsequent proceeding : see Baring
V. Nash, 1 V. & B. 554 ; Whaley v. Dawson, 2 S. & L. 3T1 ; Balfe v.
Redington, 2 Ir. Ch. Rep. 324, and the costs of mutual deeds of parti-
tion and of having the same settled by the Master, being subsequent
costs, must be borne by the parties respectively : Balfe v. Reddington,
2 Ir. Ch. Rep. 324 ; Beames on Costs, 50.

In Landell v. Baker, 6 L. R. Eq. 268, Lord Romilly, M. R., decided
that the lOtli section of the Partition Act, 1868, has not altered the
practice of the Court with respect to the costs of a partition suit. In
a subsequent case, however, his Lordship held that the costs of a par-
tition suit up to the hearing, as well as subsequent costs, should in the
absence of special circumstances, be borne by the several parties in
proportion to their interests as declared by the decree. Cannon v.
Johnson, 11 L. R. Eq. 90, and in the cases of Oshorn v. Osborn, 6 L.
R. Eq. 338; Millar v. Marriott, T L. R. Eq.'l, where sales were
directed, the costs of all parties were ordered to come out of the
estate.

But if a defendant sets up a bar to partition, as for instance an
agreement, and it turns out tliat he is not entitled to the benefit of the
agreement he has relied on, he will be obliged to pay such proportion
of the costs as have been occasioned by his setting it up : Morris v.
Timmins, 1 Beav. 411, 418.

In Lyne v. Lyne, 8 De G.Mac. & G. 553, a bill filed for *par-
tition of a freehold estate stated the death of one tenant in ^ -'
common in fee having devised her moiety to the defendant's husband,
and the death of the other tenant in common intestate, leaving the
plaintiff her heir-at-law ; but that the defendant's husband, who was
an illegitimate son of a deceased brother of the intestate, and claimed
to be his heir-at-law, concealing his illegitimacy, had entered upon and
enjo3'ed the entirety, and had settled it by an antenuptial settlement,
under which the defendant claimed. The bill sought an account of
rents and profits received by the defendant. The defendant, by her
answer, submitted that the settlor was the intestate's heir-at-law, but
did not claim as a purchaser for value without notice. By the decree
a reference was directed to ascertain who was the intestate's heir-at-
law, and the result of it was in favor of the plaintiff. It was held by
the Lords Justices, reversing the decision of Sir John Romilly, M. R.

PAKTITION,

(21 Beav. 318), that a further inquiry, whether the defendant was a
purchaser without notice, could not be directed on further considera-
tion. And see Thackeray v. Parker^ 1 N. R. (V. C. W.) 5fiT.

The costs of infants {Gox v. Gox^ 3 K. & J. 544), or of a lunatic
(Singleton v. Eo2okins, 4 W. R. lOT), may, it seems, be charged upon
and ordered to be raised out of the shares allotted to them.

Where a bill is filed for a partition, and a purchaser of an undivided
share of a defendant is made a party by amendment, he is entitled to
have his costs paid by the plaintiff: Williams v. Williams, 10 W. R.
(Y. C. K.) 609.

Where parties to a partition suit are equally interested, the practice
is to give the custody of the deed of partition and other deeds to the
plaintiff; but if they are not, then they are usually given to the person
who has the largest interest in the property : per Sir John Romillj^, M.
R., in Elton v. Elton, 21 Beav. 633 ; and see Jo7ies v. Robinson, 3 De
G. Mac. & G. 911.

In a recent case, where a great many persons were interested in a
partition deed, it was directed to be enrolled, with liberty to any part}^
to have a duplicate at his own expense : Elton v. Elton, 21 Beav. 632.
But if any of the deeds relate solelj' to any distinct part of the prop-
erty allotted to any party, they will be delivered to him : Jones v. Sob-
inson, 3 De G. Mac. & G. 910, 913 ; 1 Seton on Decrees, 511, 3rd Ed.

As to proceedings under a decree for a partition, and exceptions to
the return of the commissioners, see Daniel's Ch. Prac. 863, 3rd Ed.

A partition will not be set aside on light grounds, or for light
matters, or for mere inequality of value in the allotments, if in
*making them the commissioners have honestly exercised their
t*^"^"^^ own judgment: per Sir J. Romilly, M. R., 19 Beav. 320.

Where two different returns are made by different commissioners,
both will be suppressed : Watson v. Duke of Northumberland, 11 Yes.
153 ; Corbet v. Davenant, 2 Bro. C. C. 252; 11 Yes. 163. So where
there has been gross error of judgment on the part of the commis-
sioners without proof of partiality: Story v. Johnstone, 1 Y. & C.
Exch. Ca. 538.

A return will be set aside if it be not made by the commissioners in
the exercise of their discretion, but according to an understanding be-
tween some of the parties. Thus, in Peers v. Needham, 19 Beav. 316,
where under a decree for partition among three tenants in common,
which did not empower the commissioners to order owelty of partition,
the commissioners, upon some previous understanding that two of the
tenants in common were willing to take one of the two houses com-
prising the propert}^, without severance, allotted that house to them,
and the other to the third tenant in common, the return was sup-
pressed.

Sometimes the Court will approve of a partition without a commis-

AGAR V. FAIRFAX. 889

sion, even when infants are interested, upon satisfactory evidence of
value: Brassey v. Ghafnbers, 4 De G. Mac. & G. 528; Stanley v. Wrig-
ley, 3 S. & Gift". 18 ; Clark v. Clayton, 2 Giff. 333 ; Bowles v. Rump, 9
W. R. (V. C. S.) 370 ; Greenwood v. Percy, 26 Beav. 5T2.

Tlie Court, before the Partition Act, 1868 (31 & 32 Vict. c. 40) had
jurisdiction in a partition suit even where infants were interested, if it
appeared to be for their benefit, to direct a sale, instead of a partition;
at any rate, if the parties sui juris desired a sale ( Trackeray v. Parker,
1 N. R. (V. C. W.) 567 ; Davis v. Turvey, 32 Beav. 554 ; Hubbard v.
Hubbard, 2 Hem. & Mill. 38) ; but it was decided in a partition suit,
that if one of several tenants in common refused to sell, he could, how-
ever ruinous to all parties might be the result, insist upon a partition :
Oriffies v. Oriffies, 11 W. R. (V. C. K.) 943. As to form of order
when one of the defendants is an infant and another is out of the juris-
diction : Hubbard v. Hubbard, 2 Hem. & Mill. 38.

The Partition Act 1868 (31 & 32 Vict. c. 40) has very usefully in-
creased the jurisdiction of Courts of equity to direct sales instead of
partitions. By this Act it is enacted that " In a suit for partition,
where, if this Act had not been passed, a decree for a partition might
have been made, then if it appears to the Court (by which is meant,
the Courts of Chancery in England, Ireland, and the county palatine
of Lancaster, and the *Landed Estates Court in Ireland, sect.
2), that, by reason of the nature of the property to whicli the ^ -'
suit relates, or of the number of parties interested, or presumptively
interested therein, or of the absence or disability of some of those
parties, or of any other circumstance, a sale of the property and a dis-
tribution of the proceeds would be more beneficial for the parties inter-
ested than a division of the property between or among them, the
Court may, if it thinks fit, on the request of any of the parties inter-
ested, and notwithstanding the dissent or disability of any others of
tliem, direct a sale of the property accordingly, and maj' give all
necessary or proper consequential directions " (sect. 3).

" In a suit for Partition, where, if this Act had not been passed, a
decree for partition might have been made, then if the party or parties
interested, individually or collectively, to the extent of one moiety oi
upwards in the property to which the suit relates, request the Court to
direct a sale of the property and a distribution of the proceeds, instead
of a division of the property between or among the parties interested,
the Court shall, unless it sees good reason to the contrary, direct a
sale of the property accordingly, and give all necessary directions "
(sect. 4).

" In a suit for partition, where, if this Act had not been passed, a
decree for partition might have been made, then, if any party inter-
ested in the property to which the suit relates, requests the Court to
direct a sale of the property and a distribution of the proceeds instead

890 PAETITION.

of a division of the property between or among the parties interested,
the Court may, if it thinks fit, unless the other parties interested in
the property, or some of them, undertake to purchase the share of the
party requesting a sale, direct a sale of the property, and give all neces-
sary or proper consequential directions ; and in case of such undertaking
heing given, the Court may order a valuation of the share of the party
requesting a sale, in such manner as the Court thinks fit, and may give
all necessary or proper consequential directions " (sect. 5).

" On any sale under this Act, the Court may, if it thinks fit, allow
any of the parties interested in the property to hid at the sale, on such
terms as to non-payment of deposit, or as to setting-off or accounting
for the purchase-money, or any part thereof, instead of paying the
same, or as to any other matters, as to the Court seem reasonable "
(sect. 6).

" Section 30 of the Trustee Act 1850, shall extend and apply to
cases, where in suits for partition the Court directs a sale instead of a
division of the property " (sect. Y).

" *Sections 23 to 25 (both inclusive of the Act of the session
[*4'79] Qf (.jjg J9(.j^ j^,^^ 20th years of her Majesty's reign (ch. 120), 'to
facilitate the leases, and sales of settled estates,' shall extend and apply
to money to be received on any sale effected under the authority of
this Act " (sect. 8).

" Any person who, if this Act had not been passed, might have
maintained a suit for partition, may maintain such suit against any
one or more of the parties interested, without serving the other or
others (if anj;^) of those parties ; and it shall not be competent to any
defendant in the suit to object for want of parties; and at the hearing
of the cause, the Court may direct such inquiries as to the nature of
the property, and the persons interested therein, and other matters as
it thinks necessary or proper, with a view to an order for partition or
sale being made on further consideration ; but all persons who, if this
Act had not been passed, would have been necessary parties to the suit,
shall be served with notice of the decree or order on the hearing, and
after such notice shall be bound by the proceedings, as if they had
been originally parties to the suit, and shall be deemed parties to the
suit ; and all such persons may have liberty to attend the proceedings ;
and any such person may, within a time limited bj' general orders,
apply to the Court to add to the decree or order " (sect. 9).

" In a suit for partition, the Court may make such order as it thinks
just respecting costs up to the time of the hearing " (sect. 10).

" In England, the County Courts shall have and exercise the like
power and authority as the Court of Chancery in suits of partition
(including the power and authority conferred by this Act), in any case
where the property to which the suit relates does not exceed in value
the sum of 500L, and the same shall be had and exercised in like man-

AGAK V. FAIRFAX. 891

ner, and subject to the like provisions as the power and authority con-
ferred by section 1 of the County Courts' Act 1865 " (sect. 12).

It has been held, under this Act, that a decree will not be made for
sale of an estate, if the bill contains no prayer for partition, which
may, however, be added by amendment : Teall v. Watts, 11 L. R. Eq,
213; Holland v. Holland, 1.3 L. R. Eq. 406, overruling Aston v. Mere-
dith, 11 L. R. Eq. 601. Under the Act a partition may be made of
part of an estate, and a sale of the rest : Roebuck v. Ghadebet, 8 L. R.
Eq. 121.

The 4th section of the Partition Act, 1868, is retrospective. Ac-
cordingly, in a partition suit instituted before the passing of the
Act, by the owners of two undivided fourths of the propertj', a
sale was ordered, although opposed by the owners of the remaining
*fourths : Lys v. Lys, 1 L. R. Eq. 126.

As the onus of showing that a sale ought not to be directed, L J
is, by the Act, thrown upon the parties opposing a sale, it will be di-
rected if no sufficient reason against a sale be adduced by them. lb.

It seems that where the owners of a moiety or upwards of an estate
ask for a sale, it must be ordered by the Court, inasmuch as sect. 4 is
imperative, unless the parties objecting to the sale -will purchase under
sect. 5 the shares of the parties asking for the sale, or the Court sees
some good reason why a sale should not be ordered : Pemberton v.
Barnes, 6 L. R. Ch. App. 685 ; Underwood v. Stewardson, 20 W. R.
(V. C. W.) 668. The dissent of one of six joint owners, though an
important matter for consideration, is not per se, " good reason "
against a sale within the meaning of sect. 4 of the Partition Act,
1868 : In re Langdale's Estate, 5 I. R. Eq. 572.

It has been laid down in one case that the Court has jurisdiction to
direct an immediate sale in a partition suit in the absence of parties inter-
ested in the property, but shown to be out of the jurisdiction : Silver
V. Udall, 9 L. R. Eq. 227. But in the subsequent case of Hurry v.
Hurry, 10 L. R. Eq. 346, where one of the parties entitled to a small
fraction of the estate, was out of the jurisdiction, and had not been
served, and it did not appear that any attempt had been made to serve
him, it was held by Sir W. M. James, V. C, that the decree for sale
could not be made in his absence.

Where, in a partition suit, it was uncertain whether absent parties
Were or were not within the jurisdiction, an inquiry was directed as to
the persons interested in the property and their shares therein, and
whether such persons were out of the jurisdiction : Silver v. Udall, 9
L. R. Eq. 227.

Where a decree had been made for sale under 31 & 32 Vict. c. 40, in
the absence of parties who were out of the jurisdiction, the Court re-
fused to allow the decree to be acted on in their absence, but directed
notice to be given to them of the decree by advertisement, with liberty

892 PARTITION.

for the plaintiffs to apply as to proceeding with the sale after the adver-
tisements had appeared : Peters v. Bacon, 8 L. R. Eq. 125. In a more
recent case, however, it has been doubted whether an advertisement is
sufficient notice of the decree, unless it could be shown that the adver-
tisement had been brought to the notice of the party to be affected by
it, and in that case the plaintiff had liberty to apply at Chambers as to
the service of the decree on the party out of the j urisdiction : Teall v.
Watts, 11 L. R. Eq. 213.
A sale will be made under the Act where infants and married women

are interested. Thus in *Oiiborn v. Osborn, 6 L. R. Eq. 338, in
r*48l1
'- -'a partition suit, where the defendants were infants, the Court,

in making a decree for sale under 31 & 32 Yict. c. 40, declared that the

costs of all parties to the suit were to be lien on the proceeds of the

sale. See also France v. France, 13 L. R. Eq. 113 ; Young v. Young,

lb. 114, cited. So in Fleming v. Armstrong, 34 Beav. 105, a sale was

by consent directed in a partition suit of a freehold estate in which a

married woman was interested for her separate use, without power of

anticipation, the Court having first made her costs a charge on her

share, and directed them to be raised by a sale thereof. See also Biggs

V. Dorkis, 13 L. R. Eq. 280.

As to when a sale should take place in Chambers before the chief
clerk, and when by auction : see Pemberton v. Barnes, 13 L. R. Eq.
349.

After a decree has been made in a partition suit, che Court has juris-
diction to grant an injunction to restrain the defendant from destroy-
ing or wasting, the property : Bailey v. Hobson, 5 L. R. Ch. App. 180.

But where, after a decree for sale in the partition suit, a defendant
who was in the occupation of the property, but bound by no contract
of tenancy, proposed to sell the hay and turnips from off the land, con-
trary to the custom of the country as between landlord and tenant, it
was held by Lord Justice Giffard, reversing the decision of Sir J.
Stuart, V. C, that this was not such a destruction of the property as
the Court would restrain, and a motion for an injunction was refused :
Bailey v. Hobson, 5 L. R. Ch. App. 180.

With regard to the jurisdiction of the Inclosure Commissioners as to
partition, see 8 & 9 Vict. c. 118, ss. 90, 91 ; 9 & 10 Yict. c. TO; ss. 9,
10, 11 ; 10 & 11 Vict. c. Ill, ss. 4, 6 ; 11 & 12 Vict. c. 99, ss. 13, 14 ;
12 & 13 Vict. c. 83, ss. 7, 11 ; 15 & 16 Vict. c. 19, ss. 31, 32 ; 17 & 18
Vict. c. 97, s. 5 ; 20 & 21 Vict. c. 31, ss. 7, 11 : 22 & 28 Vict. c. 43, ss.
10, 11.

By the Incumbered Estates Act, power was given to the commis-
sioners to make partition. See In re Wilkins, 4 Ir. Ch. Rep. 575.

A partition by parol and separate possession cannot be questioned
after having been acted on for more than twenty years : Paine v. Ryder,
24 Beav. 151.

AGAR V. FAIRFAX. 893

As to Bower.]— UTpon the same principle, as in cases of partition,
although dower was originally a mere legal demand, a widow being a
joint owner is entitled in equity to an assignment of one-third of the
lands of which her husband was seised in fee or in tail, which her issue
might by possibility have inherited as her dower. She has still a
remedy at law by writ of dower, or writ of dower *under nihil
habet ; see 3 & 4 Will. 4, c. 21, s. 36. The difficulty, however, ^ -^
of proceeding at law together, probably with the necessity of obtain-
ing a discovery from the heir, devisees, or trustees, has given equity a
concurrent jurisdiction with Courts of law, which, it seems, will be ex-
ercised without its being shown whether such difficulty actually exists
or not.

For an able exposition of the law of dower, see the judgment of
Lord Alvanley, M. R., in the leading case of Curtis v. Curtis, 2 Bro.
C. C. 620; and see Mundy v. Mundy, 2 Ves. jun. 122; Pulteney v.
Warren, 6 Ves. 89 ; Strickland v. Strickland, 6 Beav. 7Y, 81.

Widows, previous to 3 & 4 Will. 4, c. 105, were only dowable out of
legal estates ; but by that Act every woman married after the 1st
January, 1884, is dowable out of her husband's equitable estates of in-
heritance. The Act, however, has put her right to dower entirely in
the hands of her husband, who may defeat it by conveyance or devise
or by a simple declaration that his estate shall be exempt from it.

The dower, however, of a woman married after 3 & 4 Will. 4, c. 105
came into operation, out of an estate made subject to dower by that
Act, will not be excluded by a declaration against dower contained in
a conveyance prior to that Act {Fry v. Noble, 20 Beav. 598 ; S. C, on
appeal, 7 De G. Mac. & G. 687 ; Clarke v. Franklin, 4 K. & J. 266)
and a widow's dower and freebench is not by Sir John Romilly's Act
(3 & 4 Will. 4, c. 104), nor by the Dower Act (3 & 4 Will. 4, c. 105),
rendered liable to the mere debts of her husband: see Spyer v. Hyait
20 Beav. 621, 623, where Sir John Romilly, M. R., observes, that
" what is claimed by or comes to the widow is no part of what the in-
testate is seised of at his death. He dies seised of lands subject to the
widowh right to dower, and it is only that which becomes subject to
the payment of his debts."

As to a widow's being put to her election between dower and a benefit
conferred upon her, see note to Streatfield v. Streatfield, Vol. i, p. 333.

The Dower Act does not apply to freebench, see Smith v. Adams, 5
De G. Mac. & G. 712. There the purchaser of a copyhold, held of a
manor the custom of which entitled widows of the copyholders to free-
bench in one moiety of the land of which their husbands died seised,
took a surrender, but died before admittance. It was held by the
Lords Justices, reversing the decision of Sir John Romilly, M. R. (re-
ported 18 Beav. 499), that the widow was not entitled to freebench at
law or in equity.

894 PARTITION.

If the widow's right to dower be disputed, an issue may be directed
r*4Sm {Mundy v. Mundy, 2 Ves. jun. 122); or the bill retained for *a
certain time, with liberty to the widow to bring a writ of dower,
as she may be advised ( Curtis v. Curtis, 2 Bro. C. C. 620 : D'Arcy v.
Blake, 2 S. & L. 390) ; and if necessary, an inquiry may be directed as
to the lands of which she is dowable {Meggot v. Meggot, Seton on De-
crees, en, 672, 3rd Ed.).

The right being established, and the property out of which the widow
is dowable being ascertained, the next step is to ascertain the dower ;
and this may be done either by a reference {OoodenoughY. Ooodenough,
2 Dick. "795) ; or by directing a commission to issue, which is made out,
executed, and returned in the same manner as a commission of parti-
tion ( Wild V. Wells, 1 Dick. 3 ; Huddlestone v. Huddlestone, 1 Ch. Rep.
88; Lucas v. Galcraft, 1 Bro. C. C. 133; 2 Dick. 594; Mundy v.
Mundy, 2 Yes. jun. 125 ; 4 Bro. C. C. 294 ; Tudor's L. C. Real Prop.
67, 2nd Ed.).

As a general rule, on a bill to assign dower, no costs are given on
either side : Beames on Costs, 35, 36. But if the defendant adds an-
other case, as by disputing the title of the widow, denying the marriage,
or the seisin of the husband, or sets up any other ground of defence
on which he fails, he may be liable to pay the costs of the suit occa-
sioned by that unsuccessful defence : (per Wigram, V. C, in Bamford
V. Bamford, 5 Hare, 205 ;) although the question as to the right be
one of considerable nicety {Fry v. Noble, 20 Beav. 598, 606), and it is
immaterial that the defendant admits the right to dower in his answer
(Harris v. Harris, 11 W. R. (M. R.) 62); however, in Bamford v.
Bamford, 5 Hare, 203, where the defendant had resisted the claim of
the widow to dower, under peculiar circumstances, no costs were given.
In that case it appeared that the husband had been transported, and
the only means the defendant had of procuring information as to the
time of his death was from the office of the Secretary of State of the
Home Department, and the information which he there received was
such as to mislead, and might have misled any one making a similar
inquiry.

Although partition is a well es- sprung, agreeably to Lord Eldon,
tablished head of equitable juris- " in the extreme difficulty attend-
diction ; see Crowell v. Woodbury, ing the process of partition at law,
52 New Hamp. 113 ; Wright v. where the plaintiff must prove his
Marsh, 2 Iowa, 94 ; Witten v. Wit- title as he declares, and also the
ten, 36 Id. 26 ; Wilsonv. Duncan, titles of the defendants, and judg-
44 Mississippi, 642, there is some ment is given according to the re-
doubt as to the source from whence spective titles so proved. " This
the authority was derived. It may be a sufficient explanation as

AGAR V. FAIRT AX.

895

it regards joint tenants and co-
parceners, whose title must be de-
duced in the declaration, but it
does not apply to tenants in com-
mon, who need only allege that
they hold together, without setting
forth how they came by their re-
spective shares. A more satisfac-
tory reason may perhaps be found
in the flexible procedure of the
Court of Chancery, which can be
so shaped as to avoid many of the
inconveniences incident to the rigid
methods of the common law ; Hall
V. Fiddock, 6 C. E. Green, 314;
Wilson V. Duncan, 44 Mississippi,
642.

Title and possession are not less
requisite to a partition in equity
than when the suit is at law ;
Haines v. Haines, 4 Maryland Ch.
133. Possession is essential be-
cause the decree was, and in Eng-
land still is, executed by mutual
deeds ; and as the transfer of title
without possession is not favored
by the law, so it will not be en-
joined by a court of equity ; see
Burhans v. Burhans, 2 Barb. Ch.
398 ; Flower v. Hopkins, 46 New
York, 182 ; Law v. Patterson, 1
W. & S. 184 ; Byers v. Donley, 21
Arkansas, 11 ; Chaplin v. Holmes,
lb. 414. If this consideration
has less weight now than at a for-
mer period, there is a more sub-
stantial reason in the folly of in-
curring expense and trouble, to
divide that which the parties to
suit do not hold, and may never
enjoy. Such a proceeding is ne-
cessarily without effect at the time,
■and can have none ultimately, un-
less the possession is regained by
entry, or a judgment in ejectment;

see Cartwright v. Pultney, 3 At-
kyns' Rep. 380.

" Where," said Lord Hardwicke,
in Cartwright v. Pultney, " a bill
is brought in this court to have a
partition between joint tenants,
or tenants in common, the plaintiff
must show a title in himself to a
moiety, and not allege generally
that he is in possession of a moiety,
and this is stricter than a partition
at law, where seisin is sufficient ;
tlie statute of 8 & 9 W. 3 C. 31,
was made for that reason. * *
* * Here, the reason is, because
conveyances are directed, and not
a partition only."

The iDossession need not be ac-
tual, but will be presumed to co-
exist with the legal title, if no ad-
verse possession is shown ; Brow-
nell V. Brownell, 19 Wend. 365,
369 ; Haines v. Haines, 4 Mary-
land Ch. 133. Vacant land, or
land which is helcj by one whose
right is not inconsistent with the
complainant's, may consequently
be parted. Thus, the possession of
one tenant in common, or copar-
cener, is the possession of all for the
purposes of a partition, although
they have not entered, and he is
in the exclusive receipt of the
profits ; Liscomb v. Bue, 8 Pick.
3Y6 ; Miller v. Dennet, 6 New
Hamp. 109, 114 ; Barnard v. Pope,
14 Mass. 434. In Barnard r. Pop)e,
Parker, C. J., said, " an actual cor-
poreal seisin is not requisite to
enable a tenant in common to
maintain this process. If it were
so, this beneficial remedy woulA
be much restricted in its opera-
tion, and it would always be in
the power of one tenant, by oust-

896

PARTITION.

ing his co-tenant to drive him to a
writ of entry ; which it certainly
was not the intention of the legis-
lature, or of the court to do. It is
true that by the common law, and
the English statutes, the writ of
partitiou cannot be maintained by
one tenant in common, who is dis-
seised,although the disseisin be b3' a
co-tenant. But every dispossession
does not amount to a disseisin, es-
pecially as between tenants in com-
mon. For the possession of one
is the possession of all, unless by
an actual ouster, or an exclusive
pernancy of the profits against the
will of the others, one shall mani-
fest an intention to hold the land
by wrong, rather than by the com-
mon title. But without such overt
acts, or a sole and exclusive pos-
session for more than twenty
years, so that the right of entry
shall be gone, a disseisin is not to
be presumed."

It was said, in like manner, in
Miller v. D^nnet, that it is only
where there is an actual ouster, or
an exclusive pernancy of the pro-
fits by a co-tenant against the will
of the others, that partition does
not lie, and that even where the
complainant has been actually dis-
possessed, he may still re-enter
within the term prescribed by law,
and will then be in a position to
maintain a suit for partition.

Hence a purchaser of an un-
divided share, at a sheriff's sale,
may maintain partition without
entering, and although the land is
in possession of a third person who
is not his tenant ; House v. Moor-
man, 2 Carter, (Ind.) 17 ; Eawley
V. Sojjer, 18 Vermont, 320. In

Hawley v. Soper, the court said)
" actual possession is not essential,
provided the party be not legally
disseised ; Monroe v. Walbridge, 2
Aik. 410. And for this purpose a
distinction is recognized between
a mere possession of the plaintiff's
share by a third person, or by the
defendant, and a legal disseisin.
Such possession may often be
treated as a disseisin at the plain-
tiff's election (as for the purpose
of bringing an ^ejectment) when it
is not conclusively so in contem-
plation of law. It would seem
that even adverse possession short
of the period required to confer a
title by the statute of limitations,
does not always work such a dis-
seisin as will oust the right to ap-
ply for partition. * * * * As be-
tween parceners, joint tenants, or
tenants in common, although one
of the parties claims to hold abso-
lutely, the other party may coq-
sider himself still seised for the
purposes of a partition. If, how-
ever, the complainant is effectually
disseised even by a co-tenant, he is
barred as to his remedy, because
they no longer hold the estate
together ; Co. Litt. 167." The same
view was taken in House v. Moor-
man, 2 Carter, 17.

The better opinion seems to be,
that the mere circumstance that a
tenant in common is in possession
of the whole premises, claiming
adversely to his co-tenants, will
not preclude the latter from ob-
taining a decree in partition, un-
less the adverse possession has
continued long enough to consti- '
tute a bar, or is held under an alle-
gation of right which is made in

AGAR V. FAIRFAX,

897

good faith and not merely to pre-
vent the equitable jurisdiction
from attaching ; Obert v. Obert, 2
Stockton Ch. 98, 106 ; Overton v.
Woolfolk^ 6 Dana, 3T4 ; Howey v.
Goings, 13 111. 108. See Marshall
V. Crehore, 13 Metcalf, 462. To
oust the jurisdiction of chancery,
the title inust be doubtful and con-
troverted, or there must be some
disputable question of fact, which
cannot be alleged where the only
plea of the defendant is that he hag
taken exclusive possession of that
to which the complainant confes-
sedly has an equal right. See
Overton v. Woolfolk, 6 Dana, 315.
In tliis case the court said, " we
know of no adjudged case in which
the principle has been settled that
the bare fact of an adverse holding
of a part of the land, by one joint
tenant or tenant jji common, would
be a good ground to defeat the ju-
risdiction of a court of equity in a
bill for partition, until the right of
possession has been vindicated at
law ; nor do we believe that policy
or principle require the adoption
of such a rule." The weight of
reason if not of authority would
accordingly seem to be in accord-
ance with this view " that no pos-
session of one tenant in common
can bar the writ of partition of the
other, unless it be an adverse pos-
session continued for such a length
of time as to toll the right of
entry ; " Woolfolk v. Woolfolk ;
Howey v. Goings, 13 Illinois, 95 ;
Lloyd V. Gordon, 2 Harris & Mc-
Henry, 254.

In Bromagham v. Glapp, 5
Cowen, 295, 9 Idem, 530, the
chancellor nevertheless inclined to
VOL. II. — 57

the idea, that as the complainant
or petitioner in a proceeding for
partition, must allege that he is
seised, and show a present posses-
sion, a mere right of entrjr will not
satisfy the averment, and therefore
that if a subsisting adverse posses-
sion of a co-tenant though short of
twenty years, does not require the
bill to be dismissed, it will pre-
clude a decree for the complainant
until he has regained the premises
through an action at law. The
point was not actually before the
court in this instance, but the
chancellor's doctrine has recently
been adopted and ai^plied by
the Court of Appeals ; Burhans v.
Burhans, 2 Barb. Ch. 398 ; Flor-
ence V. Hopkins, 46 New York, 182.

" Possession usually follows the
legal title when no adverse pos-
session is shown, and consequently
when the^lands are unoccupied, the
possession will be deemed to be in
those having the title (Brownell
V. Brownell, 19 Wend. 369 ; Bee-
bee V. Griffing, 14 N. Y. 235) ; and
when one of several tenants in
common is in possession, his pos-
session will in the absence of any
act of ouster on his part inure to
the benefit of all."

" But even the possession of one
of the tenants in common may be-
come adverse by acts on his part,
amounting to an exclusion of his
co-tenants, and if he convey the
whole of the premises to a third
party, and the purchaser takes
actual possession, claiming the
whole, it is certain that the pos-
session of such a purchaser is
adverse, and is not the possession
of the former co-tenants of his

89S

PARTITION,

grantor (9 Cow. 562). The mo-
ment such adverse possession com-
mences, the holding in common is
terminated, and until the excluded
parties regain their possession by
the appropriate acti n, I do not see
how they can bring themselves
within the provision of the statute,
or the rule of the common law. It
would be utterly incongruous to
bold that where ejectment would
lie, the plaintiff has possession
which would entitle him to bring
partition. The duration of an ad-
verse possession is material, upon
the trial of the question of title to
recover possession, but it cannot
be material in determining where
the possession whs at the time of
the commencement of the action.
These views are maintained in the
cases of Jmkins v. Van Schaack, 3
Paige, 242 ; Burhans v. Burhans,
2 Barb. Ch. 398 ; and Matthewson
V. Johnson, Hoff. 560, as well as
by the reasoning of the chancellor
in the case of Glapp v. Broma-
ghan, before referred to." Flor-
ence V. Hopkins, 46 New York,
182,184. The same view prevails
in Pennsylvania, where it is a
good defence to a suit for parti-
tion against a co-tenant, that he
Holds adverselj-, although the ous-
ter is recent, and without color of
right. See Laiv v. Patterson, 1
W. & S. 184 ; M' Masters v. Garo-
thers, 1 Barr. 324 ; Longwell v.
Bentley, 11 Harris, 99.

However this may be, it is clear
that if the adverse occupancj' of a
co-tenant continues long enougli to
preclude the right of entry, the
question ceases to be one of pos-
session, and a new title comes into

being wliich is a sufficient answer
to a demand for partition whether
the proceeding is in equity or at
law ; Glapp v. Bromagham ; Rick-
ard V. Rickard, 13 Pick. 251 ;
Adams v. The Ames Go., 24 Conn.
230.

The necessity for title is still
more apparent, because there can
be no eflt'Ctual division without
ownership. See Currin v. Spraull,

1 0 Grattan, 1 45 ; Oarnett v. White,
3 Iredell Eq. 31 ; Lucas v. King,

2 Stockton Ch. 27T. A decree that
the defendant shall convey is futile
if he have no right, and unjust un-
less the right is in the complainant.
Moreover, the parties must hold
by virtue of a common title ; Gor-
hitt V. Gorhitt, 1 Jones Eq. 114,
for where the right is not joint, a
decree of severance is superfluous ;
or as the rule was stated in Jack-
son V. Myers, 14 Johnson, 354, all
the parties must be tenants in com-
mon of all the lands embraced in
the bill. See Lockhart v. Power, 2
Watts, 371. Non tenent insimul,
has therefore alwaj's been a good
plea at law, and it is also a suf-
ficient answer to a bill in equitj'.

The respondent in a suit for par-
tition may consequently show that
he is the sole owner of the whole,
or of any part of the premises, or
that the complainant cannot de-
duce a title to the undivided share
claimed by him. If for instance a
bill were filed alleging that the
premises were devised to A. and B.
as tenants in common, that A. died,
and that his title came by descent
to his son and heir, who conveyed
the same to the complainant ; and
then asked that B. should be de-

AGAR V. FAIRFAX.

899

creed to convey a moiety of the
land in severalty ; tbe defendant
might reply that the title conferred
by the devise was a joint tenancy,
and accrued to him by survivor-
ship on the death of A. ; That
^ A.'s son was illegitimate, and could
take nothing by inheritance ; or
that he did not execute and de-
liver the deed under which the
complainant claimed. Or the de-
fendant might admit the joint ten-
ancy and the transfer of the title
as set forth in the bill, and yet al-
lege a new and distinct title in
himself growing out of a disseisin
or adverse possession for more
than twenty years ; see Wilkins v.
Wilkins, 1 Johnson Ch. 111. Inlike
manner it is a good answer to a
prayer for partition, that the de-
fendant has acquired the undivided
share claimed in the bill, by a deed
from the complainant, or that the
complainant has entered into a
contract with the defendant to
convej' such share to him.

It would nevertheless appear
that a defendant in partition can-
not impeach the right of the
grantor or ancestor who is tlie
common source of title. If the
plaintiff's title is the same as the
defendant's and therefore equally
good, it is good enough for all the
purposes of the suit, although a
paramount title is outstanding
which might be successfully as-
serted against both parties. Such
a defence is not valid even in eject-
ment as between tenants in com-
mon or co-parceners, and therefore
cannot be sustained in a proceed,
ing which like partition is institu-
ted for distribution and not to es-

tablish a right. See 2 Smith's
Lead. Cases, 679, 'T Am. ed.

It is well settled, that a tenant
in common cannot acquire a para-
mount title, and rely on it as a
justification for witliholding the
possession of the premises from
his co-tenants, and may on the
contrary be required to hold it
for their benefit, as well as his
own, vol. 1, 69. See 2 Sviith's
Leading Cases, 679, t Am. ed.
But this is entirely consistent with
a right on his part to strengthen
his title to the undivided inter-
est which he alreadj' holds, and if
he adopts this course, a court of
equity will not deprive him of any
part of an advantage which is
legitimately bis, by decreeing a
partition at the Instance of a co-
tenant, who has been less diligent
or fortunate. See Boss v. Cobb,
48 Illinois, 112.

In Ross V, Cobb, 48 Illinois, 112,
the parties derived their title from
Samuel Andrews, through various
mesne conveyances, by which two-
thirds of the premises were as-
sured to the defendants, and
one-third to the plaintiff. Her
title would therefore have been
indisputable, but for a paramount
judgment recovered against An-
drews, under which the premi-
ses had been sold to one Gould,
who received a sheriff's deed.
Gould subsequently conveyed an
,undivided two-thirds of the lot to
the defendants, but there was no
evidence as to what had become
of his title to the remaining third.
The complainant relied on her
paper title as deduced from An.
drews, and on an adverse posses-

900

PARTITION.

sion under it, which as she alleged,
had barred the outstanding right
of Gould. The court held, that
her right was not sufficiently estab-
lished to entitle her to a partition
as against the defendants, because
if it became requisite to proceed
to a sale, there would be a cloud
upon the title that might depress
the price in a way to be injurious
to herself, as well as to them.
Had Gould's heirs or assigns been
made parties to the bill, and a
decree obtained against them, the
way would have been clear, but
as the case stood, it was not ripe
for a partition, unless the com-
plainant could show affirmatively
that they were not under a dis-
ability, and that their right was
barred by the statute.

The distinctive feature in this
instance seems to have been, that
the defendants had limited them-
selves to covering their undivided
share, and consequently did not
come within the rule that a tenant
in common shall not purchase an
outstanding title and then set it
up against his co-tenants.

It is always open to one against
whom a bill is filed for partition,
to show that he has an equitable
right to the share which the com-
plainant asks to have set off to
him, and if this is established, the
court will not order the defendant
to convey that to the comijlainant,
which the complainant may subse-
quently on a bill alleging fraud, or
for a specific performance, be di-
rected to re-convey to the defend-
ant ; Kurtz v. Eibner, 55 111. 514 ;
Cox V. Smith, 4 Johnson Ch. 4T1 ;

Barker v. Barker, 14 Wisconsin,
131 ; Hannan v. Oxley, 23 Id.
519; German v. Mackin, 6 Paige,
288 ; Donnell v. Mateer, 1 Iredell
Eq. 94. It was indeed held in the
case last cited, that the proper
mode of taking advantage of such
a defence, is hy filing a cross-bill,
when both suits will be heard
together, and a decree made in ac-
cordance with the equity as it
then appears. The rule, neverthe-
less is, that an equitj^ growing out
of tort or contract, and appearing
in the answer, is a good ground
for dismissing the bill, although
the defendant must institute a
separate proceeding if he desires
relief, and not merelj' to prevent a
decree of partition. See German
v. Machin ; Cox v. Smith.

Notwithstanding the scope of
this head of equitable jurisdiction,
it does not reach far enough to
embrace any question which is ex-
clusivelj"^ cognizable at law. Hence
when the legal right of the com-
plainant is disputed, and admits of
a reasonable doubt, a partition will
not be decreed until the contro-
versy is settled by some of the
various methods known to the
common law ; Wilkins v. Wilkins,
1 Johnson's Ch. 118;. Phelps v.
Green, 3 Id. 302 ; Manners v. Man-
ners, 1 Green's Ch. 384 ; Hardy v.
Mills, 35 Wisconsin, 141 ; Lucas v.
5'ingr, 2 Stockton Ch. 217; Currin
Y.Spraul, 10 Grattan, 145. " Equity
is not the proper forum nor is a
bill for partition the proper action
for trying the legal title to lands ;"
Manners v. Manners ; Dewitt
V. Ackerman, 2 C. E. Green,

AGAR V. FAIRFAX.

901

215 ; Hassam v. Day, 39 Missis-
sippi, 392. The priociple is iden-
tical with that which precludes a
chancellor from making a bill to
settle boundaries, a substitute
for an action of trespass or eject-
ment, and should be sedulously-
observed in order to prevent the
jurisdiction of equity from becom-
ing universal, to the exclusion of
the right of trial by jury, which is
the cherished heritage of the com-
mon law. Deery v. M'Clintock,
31 Wisconsin, 195 ; ante, 816. The
bill may nevertheless be retained
in the exercise of a sound discre-
tion, until the legal controversy
has been settled in the appro-
priate forum, and a partition de-
creed if the complainant is success-
ful in obtaining judgment there ;
see Man ners v. Manners; Wilkins,
V. Wilkins.

In Wilkins v. Wilkins, Chan-
cellor Kent said, " The questions
CD the title of the plaintiffs are
strictly legal questions, as whether
the estate created by the will, and
by the deed, was an estate in joint
tenancy or in common, and whether
the plaintiffs are heirs of the per-
son last seized. It may, also, be
made a question at law, as has
been . suggested, whether the de-
fendant be not protected from the
claim by the statute of limitations ;
this last consideration renders it
still more proper, that the plain-
tiffs should first be required to es-
tablish their title at law before
they come here for a partition. A
similar course was pursued in a
case mentioned in note 1 to Good-
wright v. Wells, Doug. 'I'lS, where
the Masters of the Rolls would

not decide the legal question, but
retained the bill for a twelve month
to enable the plaintiff in the mean-
time to assert his right at law."

In like manner where the answer
avers that the defendants have been
in possession of the whole of the
premises, claiming adversely for
more than twenty-one years, it is
a sufficient answer to a prayer for
partition, although they may have
entered originally as joint tenants
or coparceners with the complain-
ant, because such possession gives
birth to a new title involving a
mixed question of fact and law, and
which should consequently be de-
termined in trespass or ejectment ;
Adams v. The Ames Iron Co., 24
Conn. 230.

It was declared in like manner
in Groves v. Groves, 3 Sneed, IST,
to be the established rule in Ten-
nessee," that a bill for partition will
not lie, unless the title is clear of
dispute; Bruton v. Rutland, 3
Humphrey, 435, 436. It is not a
proceeding in which controverted
titles can be settled ; its sole object
and scope are to divide that which
is joint, among the tenants in sev-
eralty. If the title is disputed,
partition will not be made until
the dispute is settled in an appro-
priate form of action ; Nicely v.
Boyles, 4 Hump. lYT. So soon
then as it is made to appear that
there is ground for a contest
about the title, a court of equity
will withhold its hand, until that
controversy is settled in the proper
forum, whether that may be at law
or in chancery. This must pre-
cede a decree of partition. The
defendants claim title to the whole

902

PARTITION.

as devisees of the common ances-
tor, and by virtue of long adverse
possession. How far their posses-
sion will avail them under the stat-
ute of limitations, or to raise a
presumption of deeds, are ques-
tions that would properly arise in
a court of law, in an action of eject-
ment. The complainants must es-
tablish thfiir rights as tenants in
common before they can asli for par-
tition. This proceeding is not in-
tended to try titles, and, dispose of
questions proper for an action of
ejectment, and thus usurp the juris-
diction of a court of law.''

It results from the same princi-
ple, that where it appears from the
complainants' own showing, that
there is a doubtful or disputed ques-
tion of fact or law, which must be
disposed of before the case will be
ripe for a partition, the bill is de-
murrable, and must be dismissed ;
Ramsay v. Bell, 3 Iredell Eq. 209 ;
Hoffman v. Bond, 22 Michigan,
59.

In Ramsay v. Bell, the defend-
ant was in possession of the land
holding adversely, but the com-
plainants alleged that he had no
title, or that if he had, it was only
to one-half under a purchase made
at sheriff's sale, and asked that if
such should prove to be the true
state of the case, their shares
might be set off to them in sev-
eralty. The court said, that the
bill did not give the defendant a
joint title or a joint possession, but
presented a case where the title was
with the plaintiff, and the posses-
sion with the defendant, and called
on a court of equity to try an ac-
tion of ejectment. They must first

establish a title at law, and equity
would then aid them in obtaining
partition according to their several
interests. It was held in like man-
ner in Garrett v. White, 3 Iredell
Eq. 130, that where the answer
alleges a sole and adverse posses-
sion, and sets up a legal title in the
defendant, he need not go into the
proof of his title which would be
requisite in an action of ejectment,
but may simply adduce such evi-
dence as will satisfj- the court that
the case admits of a reasonable
doubt.

In Hoffmann. Beard, 22 Mich. 59,
the complainant alleged that an un-
divided fourth of the premises was
his, and that the remaining three-
fourths appertained to the defend-
ants, but also alleged that the one-
fourth wliich he claimed had been
purchased by the defendants at a
sale for unpaid taxes. The bill
went on to aver that the tax sale
was invalid for non-compliance
with the provisions of the statute,
and then concluded with a prayer
for partition, according to the le-
gal rights of the parties. The
court held that inasmuch as the
defendants were in possession of
the whole of the estate under a
claim of title, involving, agreeably
to the complainant's own showing,
various questions which were
purely legal, and should properly
be determined by a court of com-
mon law, there was no ground for
giving the relief prayed for, or
even for retaining tlie bill, which
was therefore dismissed with costs.

The bill must not only show
that the complainant has an undi-
vided interest, but that the defend-

ASAR V. FAIRFAX,

903

ants is a co-tenant ; and hence
where the allegation was that the
complainants had a good right to the
whole of the premises under the will
of their ancestor, but that the de-
fendant claimed a right to one-half
under the same will, and prayed that
the rights of all the parties might be
ascertained and declared, a sale of
the premises decreed, and the pro-
ceeds distributed among those to
whom they appertained, the court
held that the bill was in effect a de-
vice for bringing a question which
ought to be determined in an action
for ejectment, before a court of
chancery. There might, as the
complainants averred, be no doubt
as to the true construction of the
will, and that the defendant was
laboring under an entire miscon-
ception, but if so, he had no title
to the property, -and was not a
proper party to a bill for partition.

The courts of California have
been clothed by statute, for the
purpose of partition, with all the
powers incident to jurisdiction at
common law and in equity, and
may consequently consider and de-
termine the validity of the plain-
tiffs title, whether the objection
is made on equitable or legal
grounds ;, Bollo v. Navarro, 33
California, 459.

The defendant will not be al-
lowed to oust the jurisdiction of a
chancellor by raising objections
to the complainant's title which
are obviously futile, and intended
for delay ; see Hoffman v. Ross, 25
Michigan, lt5 ; Hay v. Estell, 3
C. E. Green Ch. 252 ; and tlie lan-
guage held in these instances indi-

cates that although it is the well
settled rule where the title is dis-
puted, not to settle it upon the
hearing, but to compel the com-
plainant to establish his right at
law; Manners v. Manners, 1
Green's Ch. 384 ; Dewitt v. Ack-
erman, 2 C. E. Green, 215 ; yet
the court will not interrupt the
proceedings, unless it appears from
the pleadings or evidence that the
case involves some question which
admits of a reasonable doubt.

It has been seen that where the
complainant's title is disputed on
legal grounds which are sufficient
to occasion a reasonable doubt, a
chancellor will not take the deter-
mination of the question on him-
self, and will either dismiss the
bill, or retain it until the point
has been determined by some ap-
propriate tribunal. Under these cir-
cumstances, the plea is to the juris-
diction, and there can be no hear-
ing until the objection is removed.

Where, however, the defendant
alleges an equitable title in him-
self, or impeaches the plaintiff's
right on equitable grounds, the
question is already before the ap-
propriate forum, and may be con-
sidered and resolved as a necessary
though incidental step to the final
determination of the cause ; Fount
V. Moorman, 2 Carter, 20 ; Goxe v.
Smith, i Johnson Ch. 2T4. In the
case last cited, the chancellor said :
" When the legal title is disputed,
the course has been to send the
plaintiff to law to have that title
established, before he comes here
for partition. But when the ques-
tion arises upon an equitable title

904

PARTITION.

set up on the part of the defend-
ants, this court must decide the
title, for equitable titles belong
peculiarly to this court, and the
parties cannot be sent to law."

Where the plaintiff's title is in-
disputable, and that of one or more
of the defendants is in doubt, the
court may allot his share, and re-
tain the bill until the rights of the
other parties have been determined
by a suit at law ; see Phelps v.
Green, 3 Johnson Ch. 302.

It is not essential to a decree
for partition that the complainant
should have a legal title, and it
will, on the contrarj^, generally be
suflScient to show a clear equitable
right to the relief pra3fed for. See
Ohert V. Olert, 2 Stockton Ch. 98 ;
Gartwright v. Pultney, 2 Atkyns,
880 ; Coxe v. Smith, 4 Johnson's
Ch. 2U, 216 ; Leuerton v. Waters,
1 Coldwell, 20 ; Garter v. Taylor,
3 Head, 35 ; Almovy v. Hides, lb.
39. W.lling v. Brown, Y S. & R.
467; Long-well v. Bentley, 11
Harris, 99. Hence a complain-
ant who has entered into an
agreement for the purchase of
an undivided interest in real es-
tate, may file a bill against the
other party to the contract and
those claiming under him, for
specific performance, and that his
share shall be conveyed to him in
severalty. Longwelly. Bentley, 11
Harris, 99. In like manner, where
a deed has been fraudulently ob-
tained from an ancestor, or under
an order of sale after liis death,
the court may set aside the con-
veji-ance and divide the estate
among the heirs by one and the

same decree. See Ohert v. Obert,
2 Stockton Ch. 98. 1 Beaseley,
423. Such a bill is not multi-
farious, because the partition is
decreed incidentally to complete
the measure of relief, and avoid
a multiplicity of suits. See
Garter v. Taylor, 3 Head, 35 ;
Amory v. Hicks, 3 Id. 39 ; Wil-
liams v. Wiegand, 53 Illinois, 233.
Under these circumstances, how-
ever, the bill should be so framed
as to disclose its real object, and
if it simply asks for a partition, it
will be dismissed on the coming
in of the answer, or when the truth
becomes apparent from the testi-
mony ; Williams v. Wiggand.

In Obert v. Obert, the hill was
filed by the complainant to have
six-twentieths of the premises set
off to him as one of the heirs of
George Obert, from whom the
other parties also derived title. The
other lieirs, and Peter Obert, who
had administered the estate, and
William Simpson, were made de-
fendants. It appeared from the
bill, answer and proofs, that Peter
Obert had acquired the legal title
hj selling the premises as admin-
istrator under an order of the
court, and buying them in through
a third person who acted a§ his agent.
The purchaser soon afterwards
conveyed the land to him, and
he then conveyed it to the de-
fendant Simpson. It also ap-
peared that the complainant had
brought an ejectment against
Peter Obert and Simpson for
an undivided twentieth of the
premises, and obtained a verdict
and judgment on the ground that

AGAR V. FAIRFAX.

905

the purchase by Peter Obert was
constructively fraudulent, and that
Simpson was not a purchaser for
value. The Chancellor said that
the defendants could not contest
the complainant's right to so much
as he had recovered in the suit at
law. The parties who had been
worsted in that proceeding might
bring another ejectment, but the
complainant was actually in pos-
session of one-twentieth under the
judgment of a competent tribunal,
and this was enough to entitle him
to a partition. As it regarded the
remaining five-twentieths, the case
was still open, but it depended on
a question of constructive fraud,
which, if it might be considered
by a legal tribunal, was an appro-
priate subject of equitable juris-
diction. In Coxe V. Smith, 4
Johnson's Ch. 2fl, it had been
declared by Chancellor Kent, that
when a bill for partition turns on
an equity set up by the de-
fendants, the controversy must
be determined by the chancel-
lor, because equitable titles be-
long peculiarly to chancery, and
there is no ground for sending the
parties to a court of law. It fol-
lowed that as it appeared from the
pleadings and evidence that the pur-
chase by Peter Obert was invalid,
and that Simpson had not given
value for the conveyance subse-
quently made to him, the complain-
ant was entitled, to have the share
which he demanded set off to him,
subject to the repayment of $500;
which had been advanced by Simp-
son to Obert on a mortgage of
the premises, and afterwards ap-
plied to the payment of the intes-

tate's debts. Such relief could
not be afforded to the other heirs,
who had not come forward to im-
peach the transaction by which the
title had been diverted from them-
The sale was voidable, not void,
and would stand good against
every one who did not take proper
measures to set it aside. The
complainant might avoid it so far
as it affected him, but not as it
concerned the other parties. It
followed that six-twentieths of
the premises must be conveyed in
severalty to the complainant, and
the bill dismissed as to the residue.

In Leverton v. Waters, Y Cald-
well, 26,theproceedingwas institu-
ted by a co-tenant of an equitable
estate for a partition, and to hajve
a reconveyance of the legal title,
which was outstanding subject to
a resulting trust, in the hands of
one who was made a party to the
suit. The answer relied on the
imperfection of the complainant's
title as a reason for dismissing the
bill. The court held, that under
the law of Tennessee, as regulated
by statute, the defendants had
waived the objection by answer-
ing instead of excepting to the
jurisdiction. Aside from this, a
court of chancery might on gen-
eral principles, take cognizance of
such a state of facts, for the pur-
pose of removing the cloud on the
title, and having thus obtained
jurisdiction against the holder of
the legal title, exercise it for that
of dividing the premises among
the equitable owners.

As the right of a joint tenant,
or tenant in common, to have his
share of the property assigned to

906

PARTITION.

him in severalty, is recognized by
the law and consonant with natu-
ral justice, it will be enforced by a
chancellor without regard to the
wishes of the other co-tenants,
and although it would seemingly
be more for the interests of all
concerned, that the estate should
not be divided ; Holmes v. Holmes^
2 Jones Eq. 334; Stedmany. Weeks,
SStrobhart'sEq. 145; Thurstony.
Ifm/ce, 32 Maryland, STS ; Oldham
V. Jones, 5 B. Monroe, 458 ; Bailey
V. Sisson, 1 Rhode Island, 233 ;
Wood V. Little, 35 Maine, lOT ;
Castleman v. Veitch, 3 Ran-
dolph, 361. The case is one
■where the aid of equity is asked,
not on equitable grounds, but
to enforce an admitted legal
right by means which are more ad-
vantageous for all parties, than
those which can be used at law, and
there is consequently little room
for the discretion which ordinarily
distinguishes the exercise of equi-
table jurisdiction ; Wesley -v. Fin-
ley, 3 Randolph, 261. It has ac-
cordingly been laid down without
qualification that " such a bill is
matter of right ; and there is no in-
stance of not succeeding in it, but
where there is no proof of title in
the plaintiff ; " Parker y. Girard,
Ambler, 256 ; Eowey v. Goings,
13 Illinois, 107.

In Wesley v. Finley, the com-
plainant filed a bill against the
widow and children of James Pin-
ley, alleging that he had obtained a
conveyance of all the right, title and
interest of four of the defendants
and asking that four-fifths of the
land should be set off to him in
severalty. The defendants alleged

in their answer that the complain-
ant had obtained the conveyance
by artfully taking advantage of
the misapprehension under which
they labored that their mother
had a life estate. Carr, J., said,
that having an unfavorable im-
pression of the plaintiff's conduct,
he had examined the case with
every disposition to find some
ground on which he could feel au-
thorized to dismiss the bill, and at
first thought that he might find it
in the discretion ordinarily vested
in a chancellor. It was however
clear under the authorities, that in
exercising this jurisdiction, the
courts of equity considered them-
selves bound by the principles
which prevailed where the proceed-
ing was by writ, and accordingly
wherever the complainant showed
a legal title, they considered him
entitled as of right to a partition.
In Baring v. Nash, 1 Yesey,
Beam, 550, the vice-chancellor
said, that courts of equity had a
concurrent jurisdiction with courts
of law to make partition, and must
consequently be governed by the
same rule. It followed that the
complainant having a clear legal
title was entitled to have his share
conveyed to him according to the
prayer of the bill, and if the de-
fendants had any case it must be
asserted through a bill impeaching
the conveyance under which he
claimed, on the ground of fraud.

There is another reason which
conduces to the same result. A
distinguishing characteristic of a
suit for partition is that it is not
brought to assert an adverse right,
but to secure the full enjo3'ment of

AGAR V. FAIRFAX,

907

a right confessed, which is not com-
patible with a divided occupancy.
Conceding that the prayer of the
bill involves a sacrifice, it is better
that the defendant should submit
to a pecuniary loss, than undergo
the evils that may result from
holding his estate in common with
one who is actuated by a hostile
or unkindly feeling, or who can-
not agree as to the manner in
which the property should be en-
joyed. In this aspect of the case,
the harsh or oppressive conduct of
the complainant, and the disfavor
with which he is regarded by the
chancellor, are grounds for sever-
ing the tie between him and his
co-tenants rather than for dismiss-
ing the bill.

A court of equity will not, there-
fore, any more than a court of law,
refuse to divide the estate, because
it will be worth less after it has
been parted, or even when the effect
will be to spoil the whole ; see
Turner v. Morgan, 8 Vesey, 143,
ante, 882 ; although the court will
out of many ways select that which
will be least injurious ; Scouil v.
Kennedy, 14 Conn. 349, or may
under the larger powers that have
been conferred by statute, distrib-
ute the purchase-money accruing
from a sale, instead of parting the
land.

In Holmes v. Holmes, 2 Jones
Eq. 834, a bill for the partition of
a mill was dismissed by the court
below, because it appeared from
the report of the commissioners
that the property could not be di-
vided without injury, nor sold ex-
cept at a great sacrifice ; but the de-
cree was reversed on appeal. The

Supreme Court said the question
was not whether the sale would re-
sult in a loss, but whether it would
not be less disadvantageous than a
decree that the parties should run
the mill on alternate days or weeks,
or have every other toll dish,
which were the methods known
to the common law and formerly
pursued in chancery, ante, 885.
The complainant was entitled to a
partition in the way least harmful
to himself and to the respondent,
and the mill must consequently be
sold under the authority which had
been conferred to that end by stat-
ute.

It was declared in like manner
in Smith v. Smith, 10 Paige, 4'?0,
that partition is as much a matter
of right in equity as it is at com-
mon law, and will be decreed
wherever both of the parties can-
not, or either of them will not con-
sent to hold and use the premises
in common.

It has been held for like reasons
in Maine not to be a valid objec-
tion to a partition, that the prop-
erty in question is a mill or other
edifice which cannot be divided
without rendering it useless for
the purpose for which it was con-
structed oris employed, because it
may be presumed that the parts
can be put to some other use,
although perchance of a less
profitable kind ; Wood v. Little, 35
Maine, 107 ; Hanson v. Willard,
12 Id. 142. A manufactory was
accordingly parted in Wood v.
Little, although the motive power
was derived exclusively from a
single water wheel. A chancellor
will nevertheless adopt that mode

908

PARTITION.

which will be least injurious in
Tiew of all the circumstances, and
majr set off the greater part of the
premises to one of the parties,
charged with the payment of a
rent or sum in gross ; or the
court may, agreeably to the view
taken in Hanson v. Willard, divide
the profits by allotting the premi-
ses to the parties for alternate
weeks or months instead of making
a division by metes and bounds.
See Coleman v. Coleman, 1
Harris, 100, pos^, 909. Itwas never-
theless held in Growell v. Wood-
bury, 52 New Hamp. 613, that
if such an allotment may have
been adopted from necessity at
an earlier j)eriod, when the choice
lay between it and a division that
would render the property value-
less, it became obsolete when the
courts were empowered to obviate
the difficulty, by a sale, and the
same opinion was expressed in
Holmes v. Holmes, 2 Jones Eq.
334.

A covenant not to part an estate
which the parties hold in common
may, it seems, be specifically en-
forced, where it is reasonable in
itselfand has no injurious tendency,
and will consequently be a defence
to a suit for partition so long as
the circumstances under which the
contract was made are unchanged.
See Golem,an v. Coleman, 1 Har-
ris, 100; Coleman v. Grub, 11 Id.
393. Or as the rule was stated in
Coleman v. Coleman, although the
right of partition is an ordinary
and beneficial incident of tenancies
in common, it may be waived by
agreement of the parties in interest.
In this case, land containing iron

ore, was held in common by two
persons, and the heirs of another
former owner ; and an agreement in
writing and under seal was entered
into by the two owners, and the
guardians of the minor heirs of the
other, that certain persons who
were therein designated, should
" make partition of the furnace and
forges aforesaid, and other real
estate according to quantity and
quality, and assign the same ac-
cording to the real interest and
convenience of the several parties ;
but prpviding that the ore banks
" shall remain together and undi-
vided as a tenancy in common,"
and declaring it to be the intent
of the agreement that " none of
the parties, their agents or work-
men, shall interfere with or inter-
rupt the other parties at any mine-
hole by them opened and occu-
pied for the purpose of raising
iron ore."

The entry of amicable actions of
partition to carry out the agree-
ment, was also provided for, and
they were entered ; and the per-
sons appointed made report, allot-
ting the furnace and forges, and
reporting that the " Bingham
place," with a small tract of forty
acres adjoining, and also the ore
banks and hills at Cornwall Fur-
nace do still remain undivided, to
be held by the parties as tenants
in common, according to their re-
spective shares, and to the cove-
nants and articles in the said
agreement." This report was con-
firmed by the Court in HST, and
the parties entered on the purparts
respectively assigned to them, and
they, and those claiming under

AGAR V. FAIRFAX.

909

them continued to hold the same
down to the year 1851 ; when
suit was brought for a partition of
the tracts of land which contained
the ore beds. It was held that
the agreement was a defence, not
only because of the judgment by
which it had been ratified, but
because the covenant ran with the
land, if not for the purpose of en-
abling an heir or assignee to sue,
at least for that of rebutting a suit
brought in derogation of the re-
straint which it imposed. Wood-
ward, J., said that the arrangement
made in ItST, was in effect a parti-
tion of the profits of the mine hills.
The soil was valueless. The ore
was the object to be secured, and
this was indivisible into equal parts.
The law did not enable one tenant to
compel a sale, and there was the
outstanding easement which was
not subject to partition. What
could be done in such circumstan-
ces except that which was done —
make the hills an appurtenance of
each several property, and secure
to each tenant participation in the
products, in the manner their con-
venience and experience had sug-
gested. * * * lu spealiing of
indivisible inheritances, Lord
Coke, asks, what shall become of
them ? He first answers that the
eldest shall have them, and others
shall have an allowance in value
in some other of the inheritance.

But what if the common ances-
tor left no other inheritance to
give anything in allowance ? It
is answered that one co-parcener
shall have the inheritance for a
time, and the other for a lifetime.
Or, in case of a piscary, one may

have one fish, and the other the
second one, or the one may have
the first draught, and the second
the second draught. If it be a
park, one may have the first beast,
and the second the second. If a
mill, one to have it for a time, and
the other for a lifetime, or the one,
one toll dish, and the other the
second. And this, he adds, ap-
pears to be the ancient law ;
Thomas' Coke, Litt. vol. 1, p. 537.
And says Littleton : It is to be
understood that partition may be
made in divers manners. Modus
et conventio vincunt legem. Facto
aliquid licitum est, quod sine pacta
non admittitur.

In AUnath on Partition, 3-5
Law Library, it is laid down that
there may be partition in effect,
and so as to give to each parcener
a species of enjoyment in severalty
without any division of the land.

In Salisbury v. Phillips, 1 Sal-
keld, 43, Lord Holt said : When
the thing and its profits are the
same ; partition of the profits is
partition of the thing. See, also,
Warner v. Baynes, Ambler, 589 ;
6 Munroe, 179.

In the case of Conant & Sons
V. Smith & Buel, 1 Aiken, 67, in
which an ore bed similar to this
was attempted to be brought into
partition, the Supreme Court of
Vermont denied both partition
and a sale, on the ground that
neither could be had without in-
justice to the parties, and sug-
gested that a court of equity had
the power to regulate the eujoj'-
ment of the property between the
owners, by restricting them to the
proportion of their respective in-

910

PARTITION.

terests, by compL-lling accounts
between them, and by appointing
a common receiver for all parties.

The partition thus made in 1787,
by the agreement of the parties in
interest, with the sanction of the
court having jurisdiction, aiid in
accordance with law, is binding on
the successors in the title, not
only because of the judgment of
a court in partition, under which
they claim, but because the cove-
nants of 1787 were real, and ran
with the land, though the words,
heirs and assigns were not used.
See Packenham's Case, cited in
Spencer's Case, 3 Coke, 16 ; and
Mr. Hare's Note, 1 Smith's Lead-
ing Cases, 169, 174, 7 Am. ed.
Thomas' Coke, Litt. vol. 2, pp. 247-
49. Even if the covenant did not
so run with the land as to give a
right of action to an heir or
alienee, it would serve to rebut
this action, for the law is, in re-
gard to the implied warranty
which annexes itself to exchange
and partition, that though it does
not extend to assignees, j'et the
assignee shall rebut ; see note to
Coke Litt. p. 249. Much more
may an express covenant be set
up by a privy in estate against the
very action which it was the object
of the covenant to exclude, though
no words of perpetuity were used.

We have thus demonstrated, sat-
isfactorily, at least, to our own
minds, that the agreement of 30th
August, 1787, and , the judicial
proceedings had pursuant to it,
constitute an insujjerable bar to
this action. It follows that the
court below were in error in ren-
dering judgment for the plaintifis.

Against these conclusions it is
urged that the partition of 1787
left the mine-hills a tenancy in
common, and that partition is an
inseparable incident of the estate
of tenants in common, and there-
fore these plaintifis should not be
estopped.

But it must be apparent that
this action is nothing more than
an attempt to have a second parti-
tion of that which has already
been the subject of partition."

It was held, on like grounds, in
Brown v. The Lutheran Church,
11 Harris, 495, that a church and
burial ground, which were held in
trust for the use of two distinct
religious corporations, under arti-
cles of association looking to a
permanent union, were not divisi-
ble without the consent of the
parties in interest, or fit subjects
for a writ of partition. These de-
cisions indicate that althougn the
law will not tolerate an arbitrary or
perpetual restraint on the right of
partition,, the parties may, never-
theless, agree that property which
cannot be divided without injury,
shall be held in common, so long
as the exigency of the case re-
quires it.

If a chancellor must follow the
law in determining whether to
grant or retuse a partition, he has
a large and liberal discretion as to
the choice of means ; and if the
jurisdiction does not rest on this
ground, there is none on which it
can so well be vindicated. See
Hall V. Piddock, 6 C. E. Green',
314 ; Burrell v. Burrell, 10 Id.
173.

" The peculiarities of an equit-

AGAR V. FAIRFAX.

911

able partition are, that sucli part of
the land as may be more advan-
tageous to any party on account
of its proximity to his other land,
or for any other reason, will be di-
rected to be set off to him, if it
can be done without injury to the
others ; that when the lands are in
several parcels, each joint owner
is not entitled to a share of each
parcel, but only to his equal share
in the whole ; that where a partition
exactlj' equal cannot be made with-
out injury, a gross sum or yearly
rent may be directed to be paid for
owelty or equality of partition, by
one whose share is too large, to
others whose shares are too small,
Brock field v. Williams, 1 Green's
Ch. 341, 345 ; and that where one
joint owner has put improvements
on the property, he shall receive
compensation for his improvements
either by having the part upon
which the improvements are as-
signed to him at the value of the
land, without the improvements,
or bj' compensation directed to be
made for them ;" Hall v. Piddock.
It may be added to this enumer-
ation, that whereone of several ten-
ants in common, or copareeners,has
been in the exclusive pernancy or
enjoj'ment of the rents and profits,
or has committed waste, the others
may in filing their bill for a parti-
tion ask for an account, or that the
defendant shall be enjoined from
doing further harm. See Howey
v. Goings, 13 III. 101 ; Obert v.
Obert, 2 Stockton's Ch. 98; Oliver
v. Jerreigan, 36 Alabama, 41. So
where the chief value of the prop-
erty consists in its adaptation to a

particular use, as in the case of a
reservoir or pool constructed to
afford a supply of water to mills
which the parties hold, or which
are assigned to them in severalty,
the court may apportion the stream
without dividing the land, or may
divide the land and direct that the
pool shall remain as a servitude
and easement for the good of all
concerned.

In ScovilleY. Kennedy, 14 Conn.
339, the bill was filed for the
partition of a stream of water,
issuing from an artificial pond,
and two methods were suggested,
one to divide the pond into
equal reservoirs by means of a
longitudinal dyke or wall, the
other to distribute the water by
means of equal orifices at the same
level. The former plan was better
calculated to insure entire equality,
but attended with too much outlay
and inconvenience to be practica-
ble, and the commissioners reported
that although the latter would cost
less, it would still be inconvenient
and expensive. They therefore,
declined to recommend either, and
propo^d a third whiqh the court
rejected on mature consideration.
The judges were, nevertheless,
closely of opinion, that the diffi-
cult}' of making a partition, and
the inconveniences which might
result to the co-tenants, were not
a sufficient reason for refusing the
prayer of the bill. That method
should consequently be adopted,
which though disadvantangeous,
was attended with less injury than
any other that could be devised.
Distributing the stream through

912

PARTITION,

two equal appertures came nearest
to this definition, and the decree
was made accordingly.

In Morrill v. Morrill, 5 New
Hamp. 134, where the subject mat-
ter was land overflowed by an arti-
ficial pool, which had been formed
for supplying the mills of the com-
plainant and respondent respec-
tively, with water, partition was
effected without dividing the land,
by giving each party his due share
of the stream, to be drawn through
gates or apertures of a size pro-
portioned to their respective in-
terests in the pool. The court said,
that in general, real estate should
be divided by assigning to each
owner a distinct part in severalty.
There might, however, be a parti-
tion without pursuing this method,
by assigning the use of the premi-
ses to one party for one week, and
to the other for the succeeding
week, and so on alternately ;
Cook Litt. 164, b; Bishop of
Salisbury v. Phillips, 8 Vesej^,
148. There was consequently no
legal objection to the mode of
division reported by the commis-
sioners, and it appeared t^II cal-
culated to attain the end in view.

In Smith v. Smith, 10 Paige,
470, the court took a different way,
while recognizing tiie propriety of
that adopted in Morrill v. Morrill.
The land covered by the waters of
a mill-pond, was set oflf in equal
shares to the parties, subject to
the right and duty of maintaining
the dam for the common benefit}
and with a further provision that
each party should be entitled to
draw an equal amount of the
water, or if this could not be

done conveniently, that the party
who took the larger portion of
the stream, should make a pecu-
niary compensation to the other.

It results from these decisions
that the court may, in assigning
the several shares, charge one or
more of them with a servitude or
easement, or may direct that a
watercourse or mill-dam shall be
maintained by all the owners for
their common use. In cases of
this description the partition is
obviously left incomplete, with a
view to the good of all concerned.
See Coleman v. Coleman, *l Harris,
100, ante, 909 ; Smith v. Smith, 10
Paige, 410.

In the case last cited the chan-
cellor held the following language
in making the decree : " Nor
does there appear from the tes-
timonj' to be any difficulty in
making an actual and equitable
partition of the water power in
controversy, so as to be mutually
beneficial to each. For it is not
necessary to divide the waters of
the pond by horizontal lines. The
land under the water and the dam
may be thus divided, hy metes and
bounds ; and one part thereof may
be assigned to each party, subject
to the servitude and charge of
keeping up and repairing the dam
on that part, by the one to whom
it is assigned, for the use of the
other, as well as for his own bene-
fit ; and the right to the use of the
half, or of any other portion, of
the waters of the pond, which are
thus preserved, may be assigned
to the parties respectively, to be
used in such a manner as the com-
missioners, in their report of the

AGrA-R V. FAIEFAX.

913

partition, may direct.- And if the
present situations of the flumes,
and of the gates, cannot be altered
without injurj' to the mills, so as
to prevent one party from obtain-
ing or using more than his equal
half of the water, the statute has
wisely provided that a sum may
be decreed to the other party for
owelty of partition. (2 R. S. 330,
§ 83.) So an equitable partition of
the water may be made, by allow-
ing the complainant at all times
to have sufBcient water, to be
drawn through his present gate-
way, or through such other gate-
way as may be hereafter construc-
ted in lieu of it of the same
capacitj' and depth, to work his
present machinery for so long a time
as may be necessary whenever he
may have any grinding to do, and
by requiring the defendant to shut
down his gates whenever the water
gets down to a particular mark, to
be designated in the report for
that purpose, and keeping them
shut until it rises to a certain
other point ; and awarding to the
defendant a compensation in
money, as an equivalent for such
a special privilege in the use of
the water. Or the commissioners
may give a similar privilege to the
defendant, as to both or either of
his mills, and may award a com-
pensation to be paid by him to the
complainant, as an equivalent, to
equalize the partition. So they
may direct tlie water to be used
in the way suggested by the wit-
nesses, by fixing a monument or
mark in the pond, in a permanent
situation, and allowing both par-
ties to draw the water from the
YOL. II. — 58

pond, for the use of their mills,
through the present gateways, or
through others of the same depth
and construction, until the water
is drawn down to a sj)ecifled mark
or point upon the monument ; and
directing that both parties shall
then shut down their gates until
the water has risen in the pond to
another specified point or mark
upon such monument. And if one
party will, in the ordinary use of
his mills and his present gateways,
in the manner suggested, get more
than his fair proportion of the
water, either in quantity or in
value, taking one portion of the
year with another, the commis-
sioners may, in their report, direct
such alteration to be made in the
depth or capacities of such gate-
ways as will render the use of the
water of the pond, in that manner,
equal between the parties. Or if
such alterations cannot be made
without diminishing the head and
quantity of water required for the
propelling of the machinery of the
mill or mills of either party, they
maj' award a sum of monej' to be
paid by one party to the other for
owelty of partition. In short, the
commissioners who are to make
the partition, may divide the dam
and the lands under the water, and
may make such provisions for
keeping the different portions of
the dam, and the waste gates and
flumes in the same in repair, and
such regulations for the use of the
water power which is not capable
of actual partition without a de-
struction of its value, as the parties
might make by a partion deed
between themselves, and by agree-

914

PARTITION.

ing for a compensation to be paid
by one pavtj' to the other, if neces-
sary, so as to make that partition
perfectly equal ; so far as human
judgment is capable of producing
equality in such a case.

"■ That such is the law, in con-
nection with the provision of the
revised statutes, authorizing this
court, where an equal partition of
the property cannot be made with-
out prejudice to the rights and
interests of some of the parties, to
decree compensation to be made
by the one to the other to produce
such equality, it is only necessary
to refer to a few of the leading
cases on this subject.

" In the case of Hill v. Dey (14
Wend. Rep. 204), it apjaeared that
the commissioners in partition had
set oflfto one of the parties one part
of the premises, by metes and
bounds, and another part of the
premises to the other in the same
way ; the whole embracing two
mills upon the same stream, the
one below the other. But in their
report, in addition to the land
itself, on which the lower mill was
situated, they had given to the
party to whom that part of tiie
land was set off, the easement or
right to flow back the water upon
the land assigned to the other, in
the same manner and to the same
extent that such water had been
flowed back previous to the parti-
tion. It is true, the question there
arose upon the construction of the
report itself. But the decision of
the court recognized the principle
that the commissioners in parti-
tion might assign one part of the
premises to a party, charged with

a servitude or easement for the
benefit of another party, to whom
a distinct portion of the land was
assigned by metes and bounds.
And in the case of Morrill v.
Morrill (5 New Hamp. Rep. 134),
the committee appointed by the
court to make partition of a mill
site and mill privileges, assigned
to some of the parties distinct
portions of the premises by metes
and bounds, with the right of
taking from the river within the
limits of the lands assigned to
them respectively, so much water
as would flow through a gateway
of certain prescribed dimensions,
together with a passage way or
water course through the portions
of the premises not assigned to
them. And the court sustained
the report of the committee ; dis-
tinctly placing their decision upon
the principles of the common law
upon the subject.

" Warren v. Baynes (2 Blunt's ,
Ambler, 589), decided by Lord
Hardwicke, in 1Y50, is another
case, in which such a mode of
making partition of propertj', the
principal value of which consisted
in the use of water, was adopted. Au
easement in the land leased to the
New River Company, at an annual
rent for the quantity conveyed in _^
each pipe laid down bj' the com-
pany, with the privilege of laying
down other pipes at the same rent.
And there were also two water ,^
conduits belonging to the parties
in the partition suit, one of which
was used for a cold bath establish-
ment, and the water in the other ">
conduit was running to waste. |
And in decreeing a partition of

AGAR V. FAIRFAX.

915

the property between the owners
of the water conduits and of the
lands through which the pipes of
the New River Company were laid,
&c., and directing the mode of
enjoyment of the parts set off to
the owners of the premises in
severalty, Lord Hardwicke di-
rected that the rents payable in
respect to the water-pipes then
laid by the companj^, should be
put into one lot, and the other
part of the estate of equal value
he put into another lot, and that
in case the company should lay
any new pipes which should run
partly through the land which
should be allotted to the plaintiff,
and partly through that allotted
to defendant, the rent for such
new pipes should be apportioned
between the parties according to
their respective quantities of the
land through which the same
should run. And that the conduit
in which the water run to waste
should be allotted to one party,
and the other conduit with the
cold bath to the other ; and that
the party to whom the first con-
duit was allotted should not con-
vert that conduit into a cold bath,
so as to come in competition with
the cold bath allotted to the other
party. (See also Clarendon v.
Hornby, 1 Peere Wms. Rep. 446 ;
Lister v. Lister, 3 Younge & Coll.
Exc. Rep. 540.)"

It has also been held that the
court may, in effecting a partition,
adopt a course which will be ad-
vantageous to one of the parties,
without impairing the equality
which is the right of all, and may
consequently award him that part

of the land which he has improved?
or which lies nearest to other land
which he owns ; Oaithers v. Brown,
7 B. Monroe, 90 ; Graham v. Gra-
ham, 8 Bush. 334.

The Court of Chancery had no
original jurisdiction to decree a
sale in partition without the con-
sent of the parties, nor could it
allot the whole of the premises to
one party, and give the other a pe-
cuniary compensation for his share
of the land ; Codman v. Pinkman,
15 Pick. 364 ; Wood v. Little, 35
Maine, lOT. See Thompson v.
Tolmie, 2 Peters, 15Y ; Williamson
V. Berry, 8 Howard, 595 ; Nor-
nient v. Wilson, 5 Humphreys, 310 ;
Pell V. Ball, 1 Richardson's Eq.
361 ; Delaney v. Walker, 9 Porter,
497; Oliver v. Jernigan, 46 Ala-
bama, 41. These powers have
since been conferred in many of
the states by statute, and may be
exercised whenever it appears that
a sale, or what comes to the same
thing, an allotment of the entire
premises to tiiat one of the parties
whowillgivethemost for it, will be
less injurious than an actual divis-
ion ; Thompson v. Hardman, 6
Johnson's Ch. 436 ; Higginbolham
V. Short, 3 Cushman, 160 ; Li the
matter of Skinner's Heirs, 2 Dev.
& Batt. Eq. 63 ; Eoyston v. Roy-
ston, 13 Georgia, 425; Stedman v.
Weeks, 2 Strobhart Eq. 1 45 ; Welsh
V. Freeman, 21 Ohio, N. S. 402 ;
Graham, v. Graham, 8 Bush, 334 ;
M' Gall's Appeal, 6 P. F. Smith,
363 ; Thruslon v. Minke, 32 Mary-
land, 5*11 ; Wilson v. Duncan, 44
Mississippi, 642. Codman v.
Tinkham, 15 Pick. 364 ; Wood v.
Little, 35 Maine, 107; Higgin-

916

PARTITION.

hotham v. Short, 3 Cusliman,
160.

In determining between a sale
and an actual partition, the court
inclines to the latter alternative, as
not precluding the enjoyment of
the inheritance in its existing form,
and will not adopt the latter, un-
less the balance of convenience
preponderates on that side ; Gra-
ham V. Oraham, 8 Bush, 334 ;
Thruston v. Minke, 32 Maryland,
5Y2 ; Davidson v. Thompson, Y 0.
E. Green, 83. It is not enough
that a division cannot be made
without loss, it must appear that
the loss arising from that course
will be greater, as measured by a
pecuniary standard, than that oc-
casioned by parting with the prop-
erty to the highest bidder ; Clason
V. Clason, 6 Paige, 547 ; Smith v.
Smith, 10 Id. 476; Arsdale v.
Drake, 2 Barb. 591.

The burden of proof is conse-
quently on him who asks for a
sale, to show that the land will be
worth less after it has been di-
vided than as a whole, Clason v.
Clason ; and in this case the
chancellor said that " the true
question is whether the aggregate
value of the several parts after
partition, will be materially less
than the value of the whole as
one parcel, and not whether would
it be better for the infants who
are parties to the bill, to have
their property in a form to yield
an income, instead of being locked
up in unproductive real estate ; "
Clason V. Clason, 6 Paige, 541.

It has been held repeatedly in
accordance with the opinion ex-
pressed in Story's Equity, sec. 655,

that where a tenant in common has
laid out money in erecting build-
ings, or making other substantial
improvements, the court may
in entering a decree in parti-
tion, direct that the portion of the
premises, which has thus been en-
hanced in value, shall be assigned
to him, or if this cannot be done
conveniently, and it becomes requi-
site to proceed to a sale, that the
purchase-money shall be so appor-
tioned as to reimburse him for his
outlay. Oreen v. Putnam, 1 Bar-
bour, 500 ; Conklin v. Conklin, 3
Sandford Ch. 64; St. Felix v.
Bankin, 3 Edward's Ch. 323 ;
Wilson. V. Duncan, 44 Mississippi,
642 ; Dean v. 0'3Ieara, 47 Illinois.
120; Courts Y. Eibner, 55 Id. bli;
Louvalle v. Meanagh, 1 Gilman,
39 ; Boragh v. Archer, 7 Dana,
176 ; Hall v. Piddock, 6 C. E.
Green, 311 ; Chert v. Chert, 1 Hal-
sted's Ch. 397 ; Doughady v.
Crowell, 3 Stockton, 201 ; Kurtz
V. mime, 53 Illinois, 514 ; Martin-
dale -y. Alexander, 2i Indiana, 104;
See Swany. Swan, 8 Price, 518.

In Hall V. Piddock (6 C. B.
Green, 311), the owner of the land
in question died, and the title de-
scended to bis four sons. Three
of them conveyed to the complain-
ant, who erected valuable build-
ings on the premises. The assignee
of the fourth son brought eject-
ment, and having obtained judg-
ment brought an action of partition.
The complainant thereupon filed a
bill asking that the proceedings at
law should be enjoined, and that an
equitable partition should be made
between him and the plaintiff in
the action of ejectment, with a due

AGAR V. FAIRFAX.

917

allowance for the improvements.
It was in doubt under the evidence
and debated by counsel, whether
the complainant knew that his
title was defective when he erected
the buildings. The chancellor
held that this was immaterial. The
only good faith required on the
part of a tenant in common, in
making improvements, is that
he should honestly believe that
they would enhance the value of
the property to all concerned. If
this appears, he is entitled to re-
muneration for the increase of
value resulting from his act. It
followed that the case must be
referred to a master, to inquire
and report what would have been
the value of the land, if no im-
provements had been made upon
it, and whether some part of the
land which would be eq\ual to one-
fourth of the unimproved value of
the whole could not be set off to
the respondent, or whether the end
would be better attained by allow-
ing or charging a reasonable sum
for owelty.

A different view was taken in
Scott V. Guernsey, 48 New York,
106 ; where it was held that there
is no equitable or legal ground for
allowing a tenant in common, com-
pensation for improvements which
he makes with a full knowledge
of the title of his co-tenants, and
without their consent. Where, as
in Gonklin v. Gonkiin, the com-
plainant is under the erroneous
idea that he is the sole owner, or
where he has obtained the assent
of the owners, or where they stand
by and do not object, the case is a
different one, and a chancellor may

properly take the increased value of
the land into view, in making the
partition. See Green v. Putnam,
1 Barbour, 500.

In giving judgment in this
instance, the court cited the case
of Putnam v. Bichards, 6 Paige,
390. There one who had taken
an assignment of a lease in fee
from a mother as guardian of her
infant children, uflder the belief
that she was authorized to convey,
and erected valuable buildings on
the premises, filed a bill to enjoin
an ejectment which had been
brought by the wards, and that
they should be restrained from
obtaining judgment, without com-
pensating him for the increased
value of the premises. Chancellor
Walworth said, " agreeably to the
civil law, one who built houses
or made other improvements on
land, under the sincere though
erroneous belief, that it belonged
to him, was entitled to remunera-
tion for what he had done, after dcr
ducting a fair compensation for
any benefit that he had derived
from the property, while it was in
his possession. This principle was
constantly acted upon where the
legal title was in the person who
made the improvements, and the
equitable owner was obliged to
come into chancery for relief, and
the court might then require him
to do equity, as the price of its
assistance. But there was no in.
stance in this country or in Eng-
land, where a court of chancery
had assumed jurisdiction to give
relief to a complainant, who had
made improvements upon land
belonging legally as well as equi-

918

PARTITION,

tably to the defendant, and where
the latter was not chargeable with
fraud or laches. The only relief
therefore to which the complain-
ant was entitled, was to restrain
the defendants from taking pos-
session of the lot under their
recovery in ejectment, until they
paid or tendered the complainant
the ground rent, which he had dis-
charged since he took the assign
ment of the lease."

The principle is well established
in accordance with this decision ;
but it does not necessaril_y apply
to the case of a co-tenant, who
is unable to use the property
in its existing condition, and may
be compelled to put up fences or
erect buildings, in order to render
it availalile to himself and the
other owners. His position is
therefore different from that of one
who, though it b ^ unocently, holds
and improves property to which
he has no right.

Agreeably to the case of Teas-
dale V. Sanderson, 33 Bevau, 534 ;
a co-tenant is not entitled in
England, to an allowance for sub-
stantial repairs, or lasting improve-
ments, except as an offset to a
charge for use and occupation,
during the time he has been in
possession of the premises.

It seems that as the law formerly
stood in Massachusetts, a tenant
in common had no remedy for the
improvements, which he had made
on tlie estate. But this defect is
now supplied by the act of 1850,
c. 2'78. See Marshall v. Crehore,
13 Metcalf, 462.

The jurisdiction of equity is pe-
culiarly applicable where the sub-

ject matter is an incorporeal he-
reditament, and may be exercised
for the purpose of parting a right
of turbarj', or common, or to enter
on a beach and collect and remove
the sea-weed ; Bailey v. Sisson, 1
Rhode Island, 233.

A partition may be decreed in
equity, although it is not legally
compellable, as where a tenant for
life of the whole estate is also a joint
tenant or tenant in common of the
fee. Here a writ of partition will
not lie, because, as in the case of
other real actions, it must be
brought against the tenant of the
freehold, who cannot sue himself;
although he may file a bill in equity
and make the co-tenants of the re-
version parties ; Olleyv. McAlpin's
Eeirs, 2 Grattan, 340. In Otley v.
McAlpiri's Heirs, a tenant by the
curtesy, purchased the reyersion-
ary interest of one of the three
children of his wife, and the .court
held that he was entitled to a de-
cree for a partition, although the
defendants were under age. It
would, nevertheless, appear that
the complainant must have an es-
tate in possession ; and partition
will not be made at the instance
of a tenant in common of an estate
in remainder or reversion, ante.

In general, a mortgagee or judg-
ment creditor is not a proper party
to a proceeding in partition. The
lien is not divested by the division
of the premises, but stands after
the execution of the partition deeds
as it did before; Wooteny. .Gope-
land, 7 Johnson's Ch. 140 ; Thrus-
ton V. Minkie, 82 Md. 5f2, 5H;
Earwood v. Eirby, 1 Paige, 469;
although, where the holder of an

AGAR V. FAIRFAX.

919

undivided interest gives a mort-
gage, and his share is then set ofT
to him in severalty, the holders of
the other shares ma}'' require that
it shall be taken to satisfy the in-
cumbrance ; Harwood v. Kirhy ;
Sebring v. Monroe^ Hopkins, 501.
See Bamngton v. Clark, 2 Penna.
R. 124 ; Jackson v. Fierce, 10
Johnson, 414 ; Longwell v. Bentley,
11 Harris, 103. In Longwell v.
Bentley, Lewis, C. J. said, " The
existence of a judgment or amort-
gage against an undivided interest,
presents no obstacle to a partition,
because the encumbrance attaches
upon the part set out for the one
against whom it was entered ; "
Bavington v. Clark, 2 Penn. Rep.
124; Jackson v. Pierce, 10 John-
son, 414, 41T.

It is, nevertheless, held in some
of the States, that the court may,
in the exercise of a sound discre-
tion, direct that the property shall
be sold free of incumbrance, and
remit the lien creditors to the pur-
chase money ; Kilgore v. Craw-
ford, 21 111. 249. Cradlebaugh v.
Cradlebaugh, 8 Ohio, N. S. 646 ;
. See Thruston v. Minke ; and such
is the invariable course in Penn-
sylvania, where incumbrances are,
with rare exceptions, discharged
\>Y a judicial sale ; Girard Ins.
Go V. The Farmers' & Mechanics''
Bank, 1 P. F. Smith, 388.

In this aspect of the rule it
would seem to follow that as a
mortagee may be affected by the

decree, he should be made a party
to the bill, and the law was so
held in Milligan v. Poole, 35 In-
dianna, 64.

" After some conflicting deci-
sions, it was settled iai equitjr, that
the cost of issuing and executing
the commission in partition, and
of making out the title to the sev-
eral parts of the estate, should be
borne by the parties in the pro-
portions in which they were re-
spectively entitled to the estate ;
Calmady v. Calmady, IT Yes.
555, note 1 ; Agar v. Fairfax, 17
Yes. 533. But no costs were given
up to the hearing of the bill ; Ba-
ring v. Nash, 1 Yes. & Bea. 554.
For it was thought that one party
ought not to bear any portion of
the charges incurred in respect to
previous collateral questions raised
by the other ; Whaley v. Daivson,
2 Sch. Lefr. 3T1. In accordance
with this rule, it would seem to be
clear, that where the bill was dis-
missed on the ground that the
plaintiff had no interest in the
estate, or no right to partition, he
could have no claim upon the de-
fendant for any portion of the
cost. But whatever may be the
rule in equity, it was settled in
Stewart v. Baldwin, 1 Penn. Rep.
461, that where a defendant ob-
tains a verdict in a writ of parti-
tion at law, on the plea of non
tenant insimul, he cannot recover
costs from the plaintiff;" Shaw v.
Irwin, 1 Casey, 348.

920 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

[*484] *W0OLLAM v. IIEARN.

MAY 34, 25 ; JUNE 3, 1802.

EEl'OETKD 7 VES. 211.

Distinction between seeking and resisting Specific Perform-
ance, AS TO THE admission OF EVIDENCE.] — Though a defendant
resisting a specific performance, may go into parol evidence to show
thai, by fraud, the written agreement does not express the real terms,
a plaintiff cannot do so, for the purpose of obtaining a specific
performance with a variation,

William Hearn, being possessed of a house in Ely place,
under an agreement for a lease of seven, fourteen, or twenty-one
years, from the 25th of December, 1794, agreed to let the house
to Penelope Woollam, for seventeen years; and a memorandum,
dated the 11th of December, 1798, was executed by them, stating
an' agreement for a lease to the plaintiff' from the defendant for
seventeen years to commence at Christmas next, at the yearly
rent of 73Z. 10s., the tenant paying all taxes except the laud-tax,
which Hearn agreed to pay : the lease to contain all usual
covenants, and also covenants that no public trade should be
carried on in the premises: and that no alterations should be
made in the front: that the lessee should leave the premises in
tenantable repair, with other covenants relative to the situation
of Ely Place, as being extra-parochial.

The bill was filed by Mrs. Woollam against Hearn, stating,
that the rent of l6l. 10s. was inserted by mistake, or with some
unfair view ; the real agreement being, that the plaintiff was to
have the lease upon the same rent as the defendant paid to his
r^.ar-. lessor, and that *he did not pay more than 601. ; and in
L -' confidence that a lease would be executed to her, she
paid 60L to the defendant at the time of executing the agree-
ment, being the moiety of the sum which the defendant alleged
he had laid out in repairs. She also paid '6?>l. lbs. 6ii. for
fixtures.

The bill prayed a specific performance, and that the defendant
may be decreed to execute a lease according to the agreement,
at the rent of 60^., or such other rent as the defendant paid his
lessor.

The defendant by his answer denied that 73Z. IDs. was inserted
by mistake, or with any unfair view ; or that the agreement was,
that the plaintiff should pay the same rent as the defendant paid,
which he admitted to be 63/. He stated that he believed he
might say, in the course of the treaty, that she would have
the premises upon the same terms as the defendant had ; not
meaning that she was to have them at the same rent, but that

WOOLLAM V. HEARN. 921

she would, on the whole, have them upon terms of equal ad-
vantage with the defendant, considering the money he had
expendel upon them. He admitted that the payment of 60^.
stating, that it was not a moiety of the money laid out by him,
though at the time of payment it might have been so called.

On the part of the plaintiff, her son stated by his depositions,
that when he treated with the defendant for a lease of the
house, he said he got a lease of it, but could not at that moment
lay his hands upon it : that he did not exactly know what the
rent was, but it was somewhere about 101. a year, that he did not
want to get anything by her, and she should have the house upon
the same terms he had it himself, which he repeated several times
afterwards. The plaintiff's solicitor stated, that the defendant
repeatedly said, upon being pressed to execute a lease, that the
plaintiff held the house upon the same terms upon which he held ;
but, when the deponents proposed to execute an assignment of
the original lease, he objected, that it was always his maxim not
to part with the original *lease, but to hold it in his own r* lo^'-]
possession for his security. ^ -"

Mr. Romilly and Mr. Wetherell, for the plaintiff'. — To the
objection, that the plaintiff cannot vary the written agreement,
the answer is, that this is a case of fraud, upon which you must
have recourse to parol evidence, otherwise it cannot be made
out; and that takes it out of the statute;' Shirley v. Stratton^
Young v. Qlerk^ BuxLon v. Lister} These are cases of de-
fendants resisting the performance on the ground of fraud, but
the same principle must apply to the case of a plaintiff complain-
ing of fraud. The rule caveat emptor does not apply in this
instance. A person buying an estate has no right to ask the
vendor what he gave for it. But this is very different, amounting
to a warranty. Though there is no case pecisely similar, the
result of all, which are collected by Mr. Fonblanque,^ is, that
upon fraud or mistake, parol evidence is admissible. There are
several cases before Lord Thurlow, in which it is laid down that
a party may alter a term in the agreement, in the case of fraud :
Lord Irnham v. GhiLl,^ where it was taken as clear, that, if the
clause had been omitted by fraud, a redemption would have been
permitted: so in Lord Portmore v. MorrisJ before Lord Kenyon.
In Joynes v. Statham^ and Walker v. Walker^ Lord Hardwicke
intimates an opinion that the plaintiff might have done so,
if the parties had been reversed. Rich y. Jaekson^'^ was de-
termined upon the ground that it was not a case of fraud. If
the bill had been tiled against this plaintiff', upon all the author-

1 Stat. 29 Uar. 2, c 3. ' 1 Bro. C. C. 440.

^ Preo Ch. 538. See the references in the notes by Mr. Finch.
* 3 Atk 383. * 1 Fonb. 122.

6 1 Bro. C. C. 93. ' 2 Bro. C. C. 219.

8 3 Atk 388. 9 2 Atk. 98.

I" 4 Bro. C. C. 514 ; 6 Ves. 334, in a note to The Marquia of Townshend v.
Stangroom, 6 Ves. 338 ; where all these cases are fully discussed.

922 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

ities she might have insisted upon this variation, for the Court
would not assist a plaintiff coming to enforce an agreement by
his own fraud, not according to the true contract. There can be
no principle why a man may set up a fraud defensively, which he
cannot offensively. The defendant must go the length of saying,
that no proof of fraud, however clearly it may be made out that
the written agreement was not the actual agreement, will be
adequate. Certainly a plaintiff must make out a stronger case.
r*4871 ^^^ consequence *of refusing this relief would be, that the
'- -' person who contrived the fraud, and who, if he filed a bill,
would not be permitted to set it up, may secure the advantage
by refusing to perform the agreement, driving the other to be the
actor, and to file a bill. In many of these cases the fraud has not
been clear. This is, be3'0nd a doubt, misrepresentation from first
to last ; not only suppressio veri, but also suggestio falsi. How is
it to be distinguished from a purchase of an estate, represented by
the vendor at a certain number of acres, and turning out to be_
less? There is a similar reference here to the rent. The de-
fendant's construction of his words is impossible.

Mr. Leach, for the defendant. — The cases cited proceed upon a
principle wide of the Statute of Frauds. The plaintiff signed
this agreement tinder the notion that the rent specified was paid
by the plaintiff to his landlord. Assume that fact. She under-
took'^it with full knowledge. This is not within the principle
upon which the Court permits a written agreement to be varied
by parol. The meaning of that rule is, that the writing must
differ from the intention of the partj' when signing it. This
plaintiff intended, and knowing it, bound herself to pay, 73^, lO.s.
per annum. She does not insist that she signed the agreement
by mistake, hut she contends, upon the suppression of the fact,
not merely that she is to be discharged from the written agree-
ment, which might be done if the case was made out, but beyond
that, to set up another agreement, existing only in parol. That
is the distinction. If she meant only to pay a rent of 63^., and
the other by fraud inserted 73?., the Court would correct it; but
this is an attempt to repeal the Statute of Frauds. The danger of
admitting such evidence must be attended to; persons supporting
their own case: and affecting to state the very words, that passed.
By^the alteration of a word the witness alters the whole conver-
sation. But, admitting the evidence, it. by no means supports
their own case. If the understanding was, that the plaiiitift' was to
r*4.88l sf*^"*^ i" the same relation to the *originai landlord as the
'- ^ defendant, how was is, that she was to pay 60/. in con-
sideration for the lease? He meant nothing more than what he
states in his answer, that she shoukl have it upon terms of equal
advantage. The supposed fraud consists in this, that, having
expend'ed money, he must, therefore, have an increased rent.

Mr. Momilly, in reply. — With respect to the statute, I cannot
state any case exactly like this ; but where a party by a fraudulent
representation of the facts has obtained a contract, it has beeu

•WOOLLAM V. HEARN. 923

decided in many instances, that a case of fraud is always an
exception out of the statute.^ If the party undertakes to show,
that liy fraud he was induced to sign an agreement different
from the actual agreement, he may read evidence to that. This
extends to cases of every description, deeds executed with the
most solemn form. ' In Filmer v. Golt^^ evidence was admitted to
prove a consideration in the deed different from that stated —
a pecuniary consideration : the deed expressing natural love •and
affection. This was followed by The King v. The Inhabitants of
Scammandon ,^ and various other cases. Lord Irnham v. Child and
Fortmore v. Morris,'^ are as strong cases as can be produced, being
not only to vary the written agreement, but to have a specific
performance of the agreement so varied. There can be no
difference whether the party producing the evidence is plaiiititf
or defendant: the question being as to the rule of evidence, and
a povsitive rule of evidence being equally applicable to both cases.
In Doe V. Allen^ a very strong case, upon a will, evidence was
admitted, upon this ground, that if you so rigidly adhere to the
statute, it would be, not a statute for the prevention, but for the
protection and futherance of fraud.

In this case the rent of 12>l. 10s. was agreed on, only because
the defendant said he paid that rent to his landlord. The
defendant, the only person who knew the rent, refused to produce
his lease. The sum inserted in the agreement has reference to
something, which is substantially *the agreement. This r*4^Qai
is not, as represented, a party with knowledge consenting '- -^
to pay this rent. She never agreed to pay more than he paid.
Suppose a person, owner of the fee, and likewise occupier, con-
tracts to sell the estate at so many years' purchase, telling the
party with whom he contracts, that it is 100/. a year. Attending-
to the language of the defendants, " terms " can mean nothing
else than the rent. The defendant's interpretation is totally
impossible.

Sir W. Grant, M. E. — The doubt I have felt during the
argument of this case, where there is any instance of executing
a written agreement with a variation introduced by parol, still
remains ; and, as it is au important question, I wish to consider it.

Sir W. Grant, M. R. — This bill calls upon this Court for a
specific execution of an agreement for a lease, at a rent of 60/. a
year. There is no agreement in writing for a lease at that rent ;
the agreement expressing a rent of T6l. 10s. The plaintiff eon-
tends, however, that she signed that agreement under a belief
that such was the rent payable by the defendant : the real agree-

1 See the references in the note, 3 Yes. 38, 39, to Pym v. Blackburn.
« 4 Bio. P. 0. 280, loml. edit. ^ 3 t. R., B. R. 474.

* 2 uro. 0. C. 219. « 8 T. R., B. R, 1 47.

924 SPECIFIC PERFOEMANCE. — PAEOL EVIDENCE.

ment being for a lease at the same rent he paid to his landlord.
The defendant in his answer admits he might have said, she
shonld have it upon the same terms ; not meaning the same rent,
but upon terms upon the whole equally advantageous ; insisting
that, as he had laid out a great deal of money, she would upon
the whole have as good a bargain. She offers parol evidence to
prove an express agreement, that she was to have it upon the
same terms as he had it, and to show that nothing could be
meant by that expression, but the same rent, nothing being in
discussion between them but the amount of the rent. He alleges
a particular reason for not stating it — that he had not his own lease
at hand. The question is, whether the evidence is admissible ;
for, though read, it has been read without prejudice. The de-
fendant controverts the effect of the evidence, supposing it can
r*4Qm *^® received : but I own, my opinion is, that, if received,
■- -'it will make out the plaintiff's case ; for taking the whole
together, there is hardly a doubt that the impression meant to be
conveyed was, that the rent should be the same ; and, whatever
he meant, that is the impression any person would have received
from his language.

By the rule of law, independent of the statute, parol evidence
cannot be received to contradict a written agreement. To admit
it for the purpose of proving that the written instrument does
not contain the real agreement, would be the same as receiving it
for every purpose. It was for the purpose of shutting out that
inquiry, that the rule of law was adopted. Though the written
instrument does not contain the terms, it must in contemplation
of law be taken to contain the agreement, as furnishing better
evidence than any parol can supply.

Thus stands the rule of law. But when equity is called upon
to exercise its peculiar jurisdiction by decreeing a specific per-
formance, the party to be charged is let in to show, that, uuder
the circumstances, the plaintiff is not entitled to have the agree-
ment specifically performed ; and there are many cases in which
parol evidence of such circumstances has been admitted, as in
Buiton V. Lister^ which is very like this case. There, upon the
face of the instrument, a specific sum was to be given for the
timber: but it was shown by parol that the defendants were
induced to give that upon the representation that is was valued
by two timber merchants, which was not true. So here by the
agi'eement upon the face of it she is to pay this rent ; but by the
evidence she was induced to do so, because she thought, from his
representation, that it was the rent he paid. If this had been a
bill brought by this defendant for a specific performance, I should
have been bound by the decisions to admit the parol evidence,
and to refuse a specific performance. But this evidence is offered,
not for the purpose of resisting, but of obtaining a decree, first
r*-iQn *''° *^'^'*y f^i^ written agreement, and then to substitute
'- •' in its place a parol agreement, to be executed by the Court.

'3 Atli. 38 J.

WOOLLAM V. HEARN. 925

Thinking, as I do, that the statute has been already too much bro-
ken in upon by supposed equitable exceptions, I shall not go farther
in receiving and giving efi'ect to parol evidence than I am forced by
precedent. There is no case in which the Court has gone the
length now desired. But two cases are produced, in which it is
said there is an intimation from Lord Hardwicke to that efi'ect.
Upon that it might be sufficient to say, it was not decided. But
it is evident, trom the manner in which the great Judge qualifies
his own doubts that he thought it impossible to maintain such a
proposition as the plaintiff is driven to maintain. In Walker v.
Walker, '^ it is to be observed, first that the parol evidence was not
ottered for the purpose of contradicting anything in the written
agreement. It was admitted, that, as far as it went, it stated the
true meaning. But it was contended by the defendant, that there
was another collateral agreement, which the plaintiff ought to
execute before he could have the benefit of the written agree-
ment. It was evidence, too, offered in defence, to resist a
decree. Lord Hardwicke, after stating the ground, express him-
self thus: —

" The plaintiff, for these reasons, is not entitled to relief in this
Court, for supplying the defect of a legal conveyance, but it is
rebutted by the equity set up by the defendant. I am not at all
clear, whether, it the defendant had brought his cross-bill to have
this agreement established, the Court would not have done it,
upon considering it in the light of those cases, where one part of
the agreement being performed by one side, it is but common
justice it be carried into execution on the other; and the
defendant would have had the benefit of it as an agreement."

So he states the special reason ; not being at all clear that the
defendant would have been so entitled. There is nothing of ad-
mitting parol evidence to contradict a written agreement, and
next to set up a parol agreement, to be executed by the Court.

*The other case referred to is Joynes v. (Statham^ referred r*4Qo-|
to for the opinion expressed by Lord Hardwicke: — L J

" Suppose the defendant had been the plaintiff", and had brought
the bill for a specific performance of the agreement, I do not see
but he might have been allowed the benefit of disclosing this to
the Court."

But the reason is assigned : —

"Because it was au agreement executory only ; and as in leases
there are always covenants relating to taxes, the Master will in-
quire what the agreement was as to taxes ; and, therefore, the
proof ottered here is not a variation of the agreement, but is ex-
planatory only of what those taxes were. I am of opinion to
allow the evidence of the omission in the lease to be read."

The parol evidence was received for the purpose of resisting
performance of the agreement, and received likewise, not to
contradict it, but to show, that, as it stood, it did not fully
express the meaning and intention of the parties, there being '
1 3 Atk. 98. 2 3 Atk. 388.

926 SPECIFIC PEEFOKMAKCE. — PAROL EVIDENCE.

another stipulation agreed upon, but not introduced into the
written instrument. And even if that had been a bill by the de-
fendant, to carry into execution the agreement, he would not have
lound it necessary to offer parol evidence to contradict anything
in it; for be allowed it to contain the intention, as far as it went;
but the provision, that the rent was to be clear of taxes, was
omitted. And Lord Ilardwicke, from the particular nature of
that stipulation, expresses a doubt whether, it the defendant bad
been plaintiff, he might not have been permitted to give evidence,
it being usual to leave that open ; intimating that it would be
merely explanatory as to the taxes.

But this is evidence to vary an agreement in a material part ; and
having varied it, to procure it to be executed in another lorm.
There is nothing to show that ought to be done; and my opinion
being, that it ought not, I must dismiss the bill, but without
costs.

The plaintiff then ajiplied for a decree according to the
r-^AOQi *written agreenjent, with a covenant for quiet enjoyment,
L -' as he had not }iower to grant such a lease.

The Master of the Rolls said, the bill was not for that
purpose ; expressly objecting to a lease at the rent of 73/. 10s.

The bill was dismissed without costs, and without prejudice to
another bill for a lease at the rent of T6L 10s.

The important .distinction, now so well established, between a plain-
tiff seeking, and a defendant resisting specific performance, is well laid
down by. Sir William Grant in the principal case. The plaintiff, it
will be observed, filed the bill for the specific performance of a written
agreement, with a variation supported only by parol evidence, alleging
that by mistake or fraud the written agreement without the variation
did not contain the real agreement ; the parol evidence, however, was
very properly rejected ; but his Honor observes, that had the bill been
brought by the defendant for a specific performance, he would have
been bound by the decisions to have admitted the parol evidence, and
to have refused a specific performance.

Lord Hardwicke, in Joynes v. Statham, 3 Atk. 388, which is referred
to and commented on in the principal case, seems to have thought, that
by possibility, a plaintiff might be permitted to show, by parol evidence,
an omission, either by mistake or fraud, in the written agreement. It
is, however, by no means improbable that his Lordship has been mis-
reported. Lord Redesdale, in commenting upon this case, observes
that it is true that Mr. Atkyns makes Lord Hardwicke say, " Suppose
the defendant had been the plaintiff, and had brought the bill for a
specific performance of the agreement, I do not see but he might have

WOOLLAM V. HEARN. 927

been allowed the benefit of disclosing this to the Court." That passage
■was cited for the purpose of showing that Lord Hardwicke thought
there might be an addition to the agreement by parol. He had found
a reference to a note of the same case by Mr. Brown, who was King's
counsel in Lord Hardwiclje's time, and in great business ; and the
manner in which he had put the case is thus : — " But query, if on a bill
for performance of an agreement, and an attempt to add to the agree-
ment by parol, whether plaintiff can do it in that case ? " Therefore,
Mr. BrOwn certainly did not understand Lord Hardwicke as saying

that it could *be done ; and, lookina; attentively at the words

r*4941
used by Atkyns, he did not think they imported anything posi- ^ -'

tive : Glinan v. Cooke, 1 S. & L. 38.

By the rule of law, as observed by the Master of the Rolls in the
principal case, independent of the Statute of Frauds, parol evidence
could not be received to contradict a written agreement, for to admit
it for the purpose of proving that the written agreement does not con-
tain the real agreement would be the same as receiving it for every
purpose ; and it was for the purpose of shutting out that inquiry
that the rule of law was adopted. Though, therefore, the written
instrument does not contain the terms, it must in contemplation of
law be taken to contain the agreement, as furnishing better evidence
than any parol can supply. This rule, even before the Statute of
Frauds, was equally binding in equity upon a plaintiff seeking specific
performance : Parteriche v. Powlet, 2 Atk. 384 ; Tinvey v. Tinney, 3
Atk. 8 ; Binsted v. Coleman, Bunb. 65 ; Hogg v. Snaith, 1 Taunt. 341 ;
Martin v. Pycr.oft, 2 De G. Mac. & G. Y95.

At law, however, the operation of a written agreement may be sus-
pended by a contemporaneous oral agreement. See Wallis v. Litiell,
11 C. B. (N. S.) 369 ; there, by a written agreement, the defendant
agreed to assign to the plaintiff a farm with immediate possession, upon
the same terms as he held of his landlord, but at the time of making
such agreement an oral agreement was entered into between the plain-
tiff and the defendant that the written agreement should be void if the
landlord refused to assign. It was held by the Court of Common
Pleas, in an action for not assigning, that the oral agreement was ad-
missible, as it was in analogy with the delivery of a deed as an escrow,
and neither varied nor contradicted the writing, but suspended the com-
mencement of the obligation.

" The foundation of the rule," observes Lord Chief Baron 'Eyre, " in
which parol evidence has been holden to be admissible, is in the general
rules of evidence, in which writing stands higher in the scale than mere
parol testimony ; and when treaties are reduced into writing, such writ-
ing is taken to express the ultimate sense of the parties, and is to speak
for itself. Indeed, nothing is so familiar as this idea. At Nisi Prius,
when an agreement is spoken of, the first question always asked is,

928 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

■whether the agreement is in writing: if so, there is an end of all parol
evidence ; for when parties express tlieir meaning with solemnity, this
is very proper to be taken as their final sense of the agreement. In the
case of a contract respecting land, this general idea receives weight
, from the circumstance, that you *cannot contract at all on that
'- -' subject but in writing ; and this, therefore, is a further reason
for rejecting parol evidence. In this -^ay only is the Statute of Frauds
material, for the foundation and bottom of the objection is in the gen-
eral rules of evidence. I take this rule to apply in every case where
the question is, what is the agreement ? " Davis v. Symons, 1 Cox.
402.

Accordingly, it will be found that parol evidence on the part of a
plaintiff seeking a specific performance of a written contract, with a
variation supported by such evidence, will, where tliere are no acts of
part performance, be invariably rejected, notwithstanding the difference
of the written, from the real, agreement, was, as in the principal case,
the result of fraud, accident, or surprise. Thus, a plaintiff cannot
adduce evidence to prove that lands comprised in a written agreement
were, by parol, agreed to be left out of a lease (Lawson v. Laude, 1
Dick. 346 ; Fell v. Chamberlain, 2 Dick. 484) ; nor to prove verbal
declarations at an auction, in opposition to printed conditions of sale.
Thus, in Jenkinson v. Fepys, cited 1 V. & B. 528, which was a very
hard case for the vendor (who clearly intended that a plantation in a
nursery should be valued distinctly from the timber which the defend-
ant was to take with the estate), it was given in evidence that, at the
auction, a distinct statement was made, that there was to be a separate
valuation of the nursery, and that the defendant, or his agent, was
present, and heard that declaration ; but the opinion of the Court was
clear, that evidence of that declaration for the vendor could not be re-
ceived, being offered to supply a defect, to alter in some respect the
written import of the contract : S. C, stated 15 Yes. 521. See also
Higginson v. Clowes, 15 Ves. 516 ; Humphries v. Home, 3 Hare, 276.

Nor is evidence admissible to prove that a written agreement to sell
to two jointly was in reality an agreement to sell to one of them, and
that the other was to have some interest in the premises by wnj^ of se-
curity for such part of the purchase-money as he might advance ; for
that would be to set up a perfectlj' distinct contract : Davis v. Symonds,
1 Cox, 402 ; and see Lord Townshend v. Stangroom, 6 Ves. 328 ; Clinan
V. Cooke, 1 S. & L. 30 ; Besant v. Richards, Toml. 509.

Where, however, a parol variation has been in part performed, a
specific performance of the written agreement with the variation will
be decreed : Anon., 5 Vin. Abr. 522, tit. 38 ; Legal v. Miller, 2 Ves.
299; Pitcairn v. Oghourne, 2 Ves. 3'J5 ; ante. Vol. i. p. 783.

The jurisdiction, however, of a Court of equity to decree a specific

WOOLLAM V. HBAKN. 929

performance is peculiar, and discretionary, *since the refusal to
exercise it will not preclude the plaintiff from seeking damages L ^
at law. Moreover, before the Statute of Frauds, parol evidence was
admissible as a defence to a bill for specific performance, and it has
not been rendered inadmissible by that statute. " It should be recol-
lected," says Lord Redesdale, " what are the words of the statute :
' No person shall be charged upon any contract, or sale of lands, &c.,
unless the agreement, 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.' No person shall
be charged with the execution of an agreement who has not, either hy
himself or his agent, signed a written agreement ; but the statute does
not say, that if a written agreement is signed, tlie same exception sliall
not hold to it that did before the statute. Now, before the statute, if a
bill had been brought for specific performance, and it had appeared that
the agreement had been prepared contrary to the intent of the defend-
ant, he might have said, ' That is not the agreement meant to have been
signed.' Such a case is left as it was by the statute : it does not say
that a loritten agreement shall bind, but that an unwritten agreement
shall not bind:" Clinan v. Cooke, 1 S. & L. 39. And see Rann v.
Hughes, 1 T. R. 350, n.

As a defence, however, to a bill for a specific performance, parol evi-
dence is admissible to show, not only that by fraud, but bj' mistake, or
even surprise, the written agreement does not contain the real terms.
In the leading case of Joynes v. Statham, 3 Atk. 388, a bill was filed
by a lessee for the specific performance of a written agreement for the
lease of a house at the rent of 9Z. a-year. The defendant, who was a
marksman, by his answer insisted that it ought to have been inserted
in the agreement, that the tenant should pay the rent clear of taxes ;
but the plaiutiif, having written the agreement himself, had omitted to
make it clear of taxes ; and that the defendant, unless this had been
the agreement, would not have sunk the rent from 14,1. to 91. ; and
offered to read evidence to show that this was part of the agreement.
It was insisted for the plaintifl', that the defendant ought not to be ad-
mitted to add by parol to the written agreement, which was expressly
guarded against by tlie Statute of Frauds. Lord Hardwicke, how-
ever, admitted the evidence. " I permitted," said his Lordship, " this
point to be debated at large, because it is decisive in the cause ; for I
am very clear the evidence ought to be read. This has been taken by
way of objection to the plaintiff's bill. The constant practice of the
Court is, that it is in their ^discretion, whether in such a bill
they will decree specific performance, or leave the plaintifl[' to L ^
his remedy at law. Now, had not the defendant a right to insist, either
on account of an omission, mistake, or fraud, that the plaintiff shall
not have a specific performance ? It is a very common defence in this
VOL. II 59

930 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

Court, and there is no doubt that it ought to be received, and quite
equally -whether it is insisted on as a mistake or a fraud."

In Clarke v. Grant, 14 Ves. 519, Sir W. Grant, M. R., admitted
parol evidence of the defendant, in opposition to a bill filed for specific
performance, showing that, at the time he entered into the 'written
agreement, he made a verbal stipulation for certain alterations in the
agreement, upon the faith of which, being consented to, he executed it.

In Winch v. Winchester, 1 V. & B. 315, the defendant purchased at
a sale an estate, described in the particulars as containing, by estima-
tion, forty-one acres, be the same more or less ; whereas, it turned out
on admeasurement to amount only to thirty-five or thirty-six acres.
On a bill being filed for specific performance, the defendant stated by
his answer, that, previous to the sale, the auctioneer publicly told him
that the farm was forty-one acres, and if it was less, an abatement
would be made ; but he submitted to perform the agreement with an
abatement. Sir W. Grant, Mr. R., admitted evidence to prove the de-
claration of the auctioneer, and dismissed the bill, unless the plaintiff
would make an abatement.

In Manser v. Back, 6 Hare, 443, premises were advertised to be sold
according to certain printed particulars and conditions of sale. Before
the sale took place, several of the printed copies were altered by the
vendor's solicitor, who introduced in writing a reservation of a right
of way to other premises belonging to the vendor. Several of the
altered copies of the particulars were laid on the table in the auction-
room, without any remark with regard to the alteration, and an altered
copy was delivered to the auctioneer, who read the same aloud before
the biddings commenced ; but the party who became the purchaser did
not hear or notice the alteration. The contract was signed by the auc-
tioneer inadvertently, and by the purchaser, on a copy of the particu-
lars of sale not containing the reservation. After the purchase-money
was paid and possession given, the purchaser filed his bill for a specific
performance of the contract, by a conveyance from the vendor, without
a reservation of the right of way. But Sir J. Wigram, V. C, con-
sidering that the evidence of the vendor clearlv shewed the mistake
made by the auctioneer, dismissed the bill ; but his Honor said, that if
the vendors *had been plaintifl"s asking a decree for specific per-
■- -I formance, with an addition to the paper signed by the purchaser,
such as they said ought to have been introduced, it was clear that no
such decree could have been made. The evidence to prove the addi-
tional term would have been inadmissible.

The important case of Lord Townshend v. Sfangroom, 6 Ves. 328,
affords a good illustration of the distinction here discussed. In that
case, the lessor filed a bill for a specific performance of a written agree-
ment for a lease, with a variation as to the quantity of land to be in-
cluded in the lease, supported by parol evidence. The lessee also filed

WOOLLAM V. HEARN. 931

a bill for specific performance of the written agreement simply. Lord
Eldon dismissed both bills ; the first, because the parol evidence was
not admissible on behalf of the lessor seeking specific performance ;
the second, because it was admissible when adduced by him as a de-
fendant, for the purpose of showing that, by mistake or surprise, the
written agreement did not contain the terms intended to be introduced
into it. See Hosier v. Read, 9 Mod. 86. Vouillon v. States, 2 Jur. N.
S. 845 ; Wood r. Scarth, 2 K. & J. 33 ; Barnard v. Cave, 26 Beav.
258 ; Webster v. Cecil, 30 Beav. 62 ; Price v. Ley, 4 Giff. 235, 8. C,
afiarmed on appeal, 32 L. J. N. S. Ch. 530.

Where the terms of a written agreement have been ambigous, so
that, adopting one construction, they may reasonably be supposed to
have an effect which the defendant did not contemplate, the Court has,
upon that ground only, refused to enforce the agreement : Calverley v.
Williams, 1 Ves. jun. 201, n. 48; Jenkinson v. Pepys, 15 Ves. 521, 1
V. & B. 528, 6 Yes. 330 ; Clowes v. Higginson, 1 V. & B. 524 ; Neap
V. Abbott, C. P. Coop. 333, and cases there collected. In the first three
cases, the plaintiflT was the author of the ambiguity ; but in the last the
vendor, the author of the ambiguity, had the benefit of the principle,
although it was certain the purchaser supposed he was buying all he
claimed: 6 Hare, 44'r. See also Callaghan v. Callaghan, 8 C. & F.
374; Baxendale v. Seale, 19 Beav. 601; Swaisland v. Dearsley, 29
Beav. 430. And see Watsoyi v. Marston, 4 De Gr. Mac. & G. 230 ; there
a mortgagee with power of sale, obtained a foreclosure decree, and then
entered into an agreement to sell the estate, with a clause providing
that as the vendor was mortgagee with power of sale, she would only
enter into the usual covenant that she had not incumbered. The pur-
chaser objected to the validity of the foreclosure decree, and insisted
upon having the conveyance under the power of sale ; and on the vendor
declining to convey in that form, instituted a suit for specific perform-
ance, in which the vendor adduced evidence showing *that the

r*499l
clause was inserted by inadvertence, and that the defendant ^ -i

never intended to incur the risk of opening the foreclosure by convey-
ing under the power. It was held by the Lord Justices that the mis-
apprehension on the part of the defendant was a sufficient defence to
the enforcement of a conveyance under the power. " The Court," said
Lord Justice Turner, " does not refuse specific performance on the
arbitrary discretion of the judge. It must be satisfied that the agree-
ment would not have been entered into if its true effect had been
understood."

Sir Thomas Plumer, in Clowes v. Higginson, 1 V. & B. 524, seems
to have been disposed to overrule the distinction which the authorities
liave clearly settled in favour of admitting evidence in defence against
specific performance, upon the grounds which have been before men-
tioned. He admits, indeed, that a defendant is permitted to show

932 SPECIFIC PERFORMANCE. — PAROL BVIDBNOE,

fraud, mistake, or surprise, collateral to and independent of the written
contract ; but he tliought that there was considerable difficulty in the
application of evidence under this head, calling for great caution, espe-
cially upon sales by auction, lest under the idea of introducing evidence
of mistake, the rule should be relaxed, by letting it in to explain, alter,
contradict, and, in effect, get rid of, a written agreement ; that, in sales
by auction, the real object of introducing declarations by the auctioneer,
or other person, was to explain, alter, or contradict the written con-
tract— in effect, to substitute another contract : and that, independent
of authority, he should be much disposed to reject such declarations,
as open to all the mischief against which the statute was directed, and
also violating the rule of law which prevailed previously, whether offered
by a plaintiff seeking a performance, or by a defendant, to get rid of
the contract : a distinction which it was, he thought, difficult to adopt,
where evidence was introduced to show, that the writing purporting to
be the contract was not the contract, and that there was no contract
between them, if that which was proved by parol did not make a part
of it. See also Fi-ice v. Ley, 4 Giff. 235 ; S. C, affirmed on appeal by
the Lords Justices, 32 L. J. (N. S.) Ch. 530.

It is, however, clear, that, as a defence, parol evidence upon the
ground of fraud, accident, surprise, or mistake, is admissible not only
as collateral to and independent of the written agreement, but in con-
tradiction to it. See Ramshottom v. Gosden, 1 Y. & B. 165; Winch v.
Winchester, 1 V. & B. 315. "

In a recent case a bill was filed for specific performance of a written
agreement to grant a lease, but the defendant having proved by evi-
dence in writing that by mistake the agreement did not *in-
L •'^"J elude a stipulation as to payment of a premium, the bill was
dismissed with costs by Sir W. Page Wood, Y. C, but without preju-
dice to an action for damages, and to the costs of the suit being in-
cluded in such action. "That a person," said his Honor, "shall not
be compelled bj- this Court specifically to perform an agreement which
he never intended to enter into, if he has satisfied the Court that it was
not his real agreement, is well established. Perhaps, no case better
illustrates the principle than The Marquis of Toivnshend v. Stangroom
(6 Yes. 328), which shews that an agreement will not be specifically
performed by this Court with a parol variation ; and on the other hand,
that this Court will not decree specific performance without such varia-
tion, if it be relied on as a defence :" Wood v. Scarth, 2 K. & J. 33.

Although it will be a good defence to a bill for specific performance
to show that a written agreement does not contain a provision verbally
agreed upon between the parties, nevertheless if the plaintiff submits to
perform the omitted provision, and there has been no fraud or mistake
with reference to it, the Court will make a decree in favour of the plain-
tiff. See Martin v. Pycroft, 2 De G. Mac. & G. 785, there the defend-

WOOLLAM V. HEARX. 933

ant agreed in writing to grant the plaintiff a lease at a specified rent,
and for a specified term, subject to the same covenants, clauses, and
agreements as were contained in an expiring lease under which he then
held the property, and the plaintiff filed a claim for specific perform-
ance, stating the written agreement, and also that it was further agreed
verbally that he should pay a premium of 200Z., which, by his claim,
he offered to do. It was lield by the Lords Justices, reversing the
decision of Sir James Parker, V. C, that the additional verbal agree-
ment did not render the Statute of Frauds a valid defence to the claim.
" Our opinion," said Lord Justice Knight Bruce, " is, that when persons
sign a written agreement, upon a subject obnoxious, or not obnoxious
to the statute that has been so particularly referred to, and there has
been no circumvention, no fraud, nor (in the sense in which the term
' mistake ' must be considered as used for the purpose) mistake, the
written agreement binds at law and in equity, according to its terms,
although verbally a provision was agreed to, which has not been in-
serted in the document: subject to this, that either of the parties, sued
in equity upon it, may perhaps be entitled, in general, to ask the Court
to be neutral, unless the plaintiff will consent to the performance of
the omitted term." See also Leslie v. Tompson, 9 Hare, 268 ; Bar-
nard V. Cave, 26 Beav. 253.

In Croome v. Lediard, 2 My. & *K. 251, by a written agree-
ment between the plaintiff and the defendant, the plaintiff L J
agreed to fell, and the defendant agreed to purchase, a certain property
called the Leigh estate; and by the same agreement the defendant
agreed to sell and the plaintiff agreed to purchase, another estate called
the Haresfield estate ; both estates were to be valued by the same per-
son, and both purchases were to be completed on the same day; but
it was not expressed that the two contracts were to be dependent on each
other. Sir John Leach held, that the plaintiff was entitled to a specific
performance of the contract as to the Leigh estate, although the defend-
ant was unable to make a good title to the Haresfield estate, and he
refused to admit evidence on the part of the defendant, to show that an
exchange was intended. " The intention of the parties," said his
Honor, '' must be collected from the expressions in the written instru-
ment ; and no evidence aliunde can be received to give a construction
to the agreement contrary to the plain import of those expressions."
This decree was affirmed by Lord Brougham, on appeal, without hear-
ing the respondent's counsel in reply. " It had been argued," said his
Lordship, " that although evidence of matter dehors was not admissi-
ble for the purpose of raising an equity, it might be given for the pur-
pose of rebutting an equity, and that, therefore, it was competent to
the defendant in a suit for specific performance to avail himself of such
evidence, though it was not competent to the plaintiff to do so. The
distinction was sound within certain limits, and within those limits the

934 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

rule might be safely adopted. Parol evidence of matter collateral to
the agreement might be received, but no evidence of matter dehors was
admissible to alter the terms and substance of the contract ;" and after
commenting on Clarke v. Grant, 14 Ves. 519, his Lordship added: —
" In the present case the purpose for which the parol evidence was ten-
dered on the part of the defendant was not to enforce a collateral stipu-
lation, but to show th;it the transaction was conducted on the basis of
an exchange ; a circumstance which, if true, was totally at variance
with the language and plain import of the instrument. Nothing could
be more dangerous than to admit such evidence; for if the agreement
between the parties was in part conducted upon the basis of an exchange,
why was the instrument so drawn as to suppress the real nature of the
transaction?"

Lord St. Leonards has remarked, that though the decision in this
case was probably well founded, it is not, perhaps, placed altogether
upon its true grounds ; that the evidence was inadmissible, not because
it was not to enforce a collateral stipulation, *but because it did
L ^ not prove that by fraud, -mistake, or surprise, the agreement
did not state the alleged real contract, viz., for an exchange between the
parties. The defendant was an attorney, and fraud was not alleged,
nor indeed was mistake or surprise, for he had himself prepared the
agreement ; and he preferred making it a mutual contract for sale and
purchase, instead of an exchange, and of course he could not be per-
mitted to alter its character by parol evidence of the mode in which the
negotiation was conducted, and of the views of the parties, in order to
avoid the consequences which attached to the nature of the contract
which the parties with their eyes open, having regard to other objects,
had thought it proper to adopt. Sugd. V. & P. 163, Uth edit. The
principle upon which, therefore, Croome v. Lediard may safely be put,
seems to be the same as that upon which Lord Thurlow decided Lord
Irnham v. Child, 1 Bro. C. C. 92. See Lord Townshend v. Stangroom,
6 Ves. 332.

The inadvertent omissions to propose an intended term to an agree-
ment is not a sufficient ground for the Court declining to grant specific
performance. Thus, in Parker v. Taswell, 2 De G. & Jo. 559, where
an occupant of land had, under an expiring tenancy, always paid the
tithe rent-charge, afterwards entered into a written agreement with the
landlord for a lease at the old rent, but without any stipulation being
introduced as to the tithe rent-charge. It was held by Lord Chelms-
ford, C, that the landlord could not insist on such a stipulation being
inserted, as a condition of speciiic performance being enforced against
hioi. " In all the cases," said his Lordship, " which have been cited on
this point, there was clear evidence of mistake. Here there is no evi-
dence that the parties intended anything except to leave the payment

WOOLLAM V. HEARK. 935

of the rent-charge to be made according to act of Parliament." See,
however, Broughton v. Hutt, 3 De Gr. & Jo. 501.

So a mistake as to the purpose for which the property is to be used :
Mildmay v. Hungerford (2 Vern. 242) ; or, as to the legal consequen-
ces of an act {Or eat Western Railway Go. v. Gripps, 5 Hare, 91) ; oi
the legal effect of the agreement : Powell v. Smith, 14 L. R. Eq. 85.
will not be a sufficient defence to a bill for specific performance : Dart
965, 4th ed.

A parol waiver of a written contract, amounting to a complete
abandonment, and clearly proved, will bar a specific performance :
Price V. Byer, It Ves. 356; Inge v. Lippingwell, 2 Dick. 469. And
see Jordan v. Sawkins, 1 Ves. jun. 404; Bich v. Jackson, 4 Bro. C. C.
519 ; Filmer v. Gott, 6 Ves. 38Y, n. ; Goles v. Trecothick, 9 Ves. 250 ;
Eobinson v. Page, 3 Russ. 119: and see Legal v. Miller, 2 Ves. 299.

Where a written agreement is *afterwards varied bv parol,
upon a bill being filed for specific performance with or without L "^""^J
the variation, the Court will, it seems, put the defendant to his election,
and, if he declines to elect, will decree specific performance of the writ-
ten agreement without the variation : Robinson v. Page, 3 Russ. 114.
And see Price v. Dyer, IT Ves. 356. But it seems that if an agreement
is correctly put into writing, and at the same time the parties add a
term by parol, evidence of it is not admissible even as a defence to spe-
cific performance : Ormerod v. Sardman, 5 Ves. 122 ; see Jenkins v
Eiles, 6 Ves. 654, 655.

Although, however, parol variations of a written agreement verbally
agreed upon, are not sufficient to prevent the execution of the written
agreement, they clearly will, if the parol variations are so acted upon,
that the original agreement could be no longer enforced without injury
to one party, who, as before observed, will be entitled to specific per-
formance, with the parol variations : Anon., 5 Vin. 522, pi. 38, 4 Geo.
1 ; Legal v. Miller, 2 Ves. 299 ; Pitcairn v. Oshourne, 2 Ves. 375. And
see Price v. Dyer, 17 Ves. 356 ; Van v. Gorpe, 3 My. & K. 277.

It will depend, however, upon the particular circumstances of each
case, whether the evidence, when admitted to prove a variation in the
contract, will entirely defeat the plaintifi''s title to specific performance,
or whether the Court w'ill perform the contract, taking care that the
subject-matter of the parol agreement is also carried into effect, so that
all the parties may have the benefit of what they contracted for. Thus,
in Ramsbottom v. Gosden, 1 V. & B. 165, where, by the mistake of the
solicitor, the written agreement only required the purchaser to bear the
expense of the conveyance, whereas the real agreement was, that he
should also bear the expense of making out the title. Sir W. Grant, M.
R., admitted parol evidence of the mistake, and held that the plaintiff
must either submit to have the agreement performed in the way con-
tended for by the defendant, or his bill, which was for the specific per-

036 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

formance of the written agreement, dismissed. And see The London
and Birmingham Railway Company v. Winter, 1 Cr. & Ph. 5*?, in
which suit a parol variation, not set up by answer, came out on the
cross-examination of the defendant's agent, who was one of the plain-
tiff's witnesses. Lord Cottenham seemed to think that it might have
been a proper subject for inquiry before the Court finally disposed of
the case, but as the plaintiff consented to adopt it as part of the con-
tract, a specific performance of the contract with the parol variation
was decreed, with costs. In Lord William Gordon v. Marquis of
Hertford, 2 Madd. 122, where parol evidence was admitted *as
L -la defence to specific performance, Sir T. Plumer, V. C, gave
the plaintiff the option, either to have specific performance of the
agreement, as proved by the parol evidence, or to have an issue, in
which the person giving the evidence might be examined, or to have
his bill dismissed. And see Gerrard v. Grindling, 2 Swanst. 244 ;
Flood V. Finlay, 2 Ball. & B. 9 ; Glarhe v. Grant, 14 Yes. 519.

Upon the principle that it is in the discretion of Courts of equity,
whether they will decree specific performance or leave the plaintiff to
his remedy at law, unless he comes with perfect propriety of conduct
{Harnett v. Yielding, 2 S. & L. 554; Gadman v. Horner, 18 Ves. 10;
Rohinson v. Wall, 10 Beav. 61 ; 2 Ph. 372), clear from all circumven-
tion and deceit (Davis v. Symonds, 1 Cox, 407 ; Reynell v. Spyre, 8
Hare, 222; 1 De G. Mac. & G. 660), and the agreement is certain
{Tillett V. The Charing Cross Bridge Hospital, 26 Beav. 419;
Darhey v. Whittaker, 4 Drew. 134), fair and just in all its parts ( Under-
wood V. Hitchcock, 1 Ves. 279 ; Buxton v. Lester, 8 Atk. 383, 386 ;
Ellard v. Lo7'd Llandaff, 1 Ball. & B. 241 ; Martin v. Mitchell, 2 J. &
W. 413 ; Stanley v. Robinson, 1 Buss. & My. 527 ; Warde v. Dickson,
10 W. K. (Y. C. K.) 148 ; 28 L. J N. S. (Ch.) 315), specific perform-
ance will not be decreed.

If a definite representation be made, affecting the value of the sub-
ject of the contract, and it turn out to be untrue, the person , deceived,
especially if he had no means of ascertaining the truth of the represen-
tation, will be entitled to resist the specific performance of the contract.
Thus, in Lord Brooke v. Rounthwaite, 5 Hare, 296, a vendor filed a bill
for the specific performance of a contract to phrchase a timber estate,
where the particulars of sale described it as comprising a certain wood
"with upwards of sixty-five acres of fine oak timber trees, the average
size of which approached fifty feet," and in the particulars of the lot,
described it onlj' as " sixty-five acres, two roods, and twelve perches of
growing timber." It appeared on the evidence for the plaintiff, that
the average size of the trees was about thirtj'-flve feet, but on that for
the defendant, that it was only about twenty-two feet, and thfe defend-
ant moreover alleged, that it was sold at a time when he had no means
of seeing the wood, and that he relied on the. particulai's of sale.

WOOLLAMV. HBARN. 937

It was held by Sir J. Wigram, V. C, that as the representation on the
particulars of sale had proved to be incorrect, and as it was not shown
that the defendant knew it to be incorrect at the time of making the
contract, the Court would not, at all events, enforce the specific per-
formance of the contract without compensation ; and that (inasmuch as
the particulars of sale did not express what *number of trees
or quantity of timber the wood contained), it was not a case in L -■
which the Court could measure the extent of the deficiency, or ascertain
the amount of compensation ; and that the bill must therefore be dis-
missed. And see Brealey v. Gollinn^ Younge, 317 ; Lowndes v. Lanet
2 Cox, 363 ; Stewart v. Alliston, 1 Mer. 26 ; Harris v. Kemble, 1 Sim.
11 ; 5 Bligh, N. S. 130 ; 2 D. & C. 463 ; Cox v. Middleton, 2 Drew. 209 ;
Price V. Macaulay, 2 De Gr. Mac. & G. 339 ; Rawlins v. Wickham, 1
Giff. 355 ; 3 De G. & Jo. 304 ; Biggins v. Samels, 2 J. & H. 460 ; Fare-
brother V. Gibson, 1 De G. & Jo. 602 ; Leyland v. lUingworth, 2 De G.
F. & Jo. 248. But see Johnson v. Smart, 2 Giff. 151 ; Cook v. Waugh,
2 Giff. 201.

A party obtaining an agreement by a partial misrepresentation, is not
entitled to a specific performance on waiving the part affected by the
misrepresentation, as the effect of partial misrepresentation is not to
alter or modify the agreement pro tanto, but to destroy it entirely, and
to operate as a personal bar to the person who has practised it : Lord
Clermont v. Tasburgh, 1 J. & W. 112. In Ca.dman v. Horner, 18 Ves.
10, where the purchaser was plaintiff, the specific performance was re-
sisted bj' the vendor, on the ground that the plaintiff, who was his
agent, had misrepresented the value of the estate, and also represented
to him that the houses had been injured by a flood, and would require
between 50L and 60Z. to repair them, whereas, in truth, the premises at
the time of the contract required no more than 40s. to put them in com-
plete repair. Sir W. Grant, M. R., although he thought the evidence
of the inadequacy of the price considerablj' shaken by the defendant's
admission of the clear rent of the premises, dismissed the bill, observ-
ing, that, upon the evidence, the plaintifi' had been guilty of a degree of
misrepresentation, operating to a certain, though a small extent; this
misrepresentation disqualified him from calling for the aid of a Court
of equity, where he must come, as it is said, with clean hands. He
must, to entitle himself to relief, be liable to no imputation in the
transaction ; that it was not a ease where the Court was called upon to
rescind an agreement, and to decree the conveyance executed in pursu-
ance of it to be delivered up to be cancelled, which would admit a differ-
ent consideration. See 1 J. & W. 120.

But a mere indefinite misrepresentation, such as ought to put a per-
son upon inquiry, will not be a sufficient ground for his resisting spe-
cific performance of a contract. Thus, a rex)resentation that only a
small fine was payable upon the renewal of leaseholds, and that they

938 SPECIFIC PERFOEMANOE. — PAROL EVIDENCE.

were of nearly equal value with freeholds, was held not to be a sufEcient
defence to a suit for specific *performance, as it ouglit to have
'- -^ put the purchaser upon inquiry, though connected with certain
circumstances, such representation might have been fraudulent, and
therefore a good ground for rescinding the contract : Fenton v. Browne,
14 Ves. 144 ; and see Lowndes v. Lane, 2 Cox, 363 ; Scott v. Hanson,
1 Sim. 13 ; 1 Russ. & My. 128 ; Trower v. Newcome, 3 Mer. 104 ; 5
Russ. 215; Abbott v. Sworder, 4 De G. & Sm. 448 ; Colby v. Gadsden,
34 Beav. 416,

And not only where there has been actual misrepresentations, but
also where there has been a suppression of the truth, specific perform-
ance will not be decreed. See Young v. Clerk, Prec. Ch. 538 ; Madde-
ford V. Austwick, 1 Sim. 89 ; Bonnett v. Sadler, 14 Ves. 526 ; Drysdale
V. Mace, 2 Sm. & G. 225 ; 5 De G. Mac. & G. 103, and Shirley v. Strat-
ton, 1 Bro. C. C. 440, in which case, a bill was filed for the specific per-
formance of an agreement for the purchase of an estate in marsh land
at Barking in Essex, and for payment of a sum of lOOOZ., the purchase-
money. The defence was, that the estate being represented to the de-
fendant as clearing a nett value of 90Z. per annum, and no notice was
taken to liim of the necessary repair of a wall to protect the estate from
the river Thames, which would be an outgoing of 50Z. per annum, and
it appearing that there had been an industrious concealment of the cir-
cumstance of the wall during the treat}', Lord Thurlow dismissed the
bill. In Bascombe v. Beckwilh, 8 L. R. Eq. 100 : the owner of an es-
tate put up the whole estate, except a small piece of land, for sale in
lots, subject to conditions which provided that no public-house should
be built and no trade carried on upon the property. In the particulars,
of sale, the property was described as the " Manor House Estate," and
there was nothing to show that any part of the vendor's estate was not
included, and in the plan annexed to the particulars the different lots
were coloured, and the excepted piece of land was uncoloured, but was
not marked with the vendor's name, though the names of the adjoining
owners were printed. It was improbable that a public-house would be
built on any of the adjoining estates. It was held by Lord Romilly,
M. R., that a purchaser of one of the lots, consisting of a mansion-
house, a hundred yards distant from the excepted piece of land, who
had purchased on the belief that the whole of the vendor's estate was
included in the particulars of sale, and consequently would be subject
to the restrictive conditions, could not be compelled to complete his
purchase unless the vendor would enter into restrictive covenants as to
the excepted piece of land. " It is," said his Lordship, " of the greatest
importance that it *should be understood, that the most perfect
L J truth, and the fullest disclosures should take place, in all cases
where the specific performance of a contract is required, and that, if
this fails, even without any intentional suppression, the Court will grant

WOOLLAM V. HEARN. 939

relief to the man who has been thereby deceived, provided he has acted
reasonable and openly." And see Lucas v. James, 1 Hare, 410 ; Denny
V. Hancock, 6 L. R. Ch. App. 1.

The mere suppression of acts having been done by the plaintiff when
the defendant must have known that they were done by somebody, is
not a sufficient reason for refusing specific performance. See Haywood
V. Cope, 25 Beav. 140. There the plaintiff had worked the coal under
his estate, but abandoned it as unprofitable. Twenty years afterwards
the defendant cleared the pit and examined the coal in the shaft with,
other persons, and subsequently contracted for a lease. The Colliery
turned out to be worthless. It was held by Sir John Eomilly, M. E..,
that the defendant could not resist a specific performance, on the
ground of the plaintiff not having communicated the fact of his having
worked the mine and found it unprofitable.

Equity will not decree specific performance of an agreement made by
a person in a state of intoxication, although the plaintiff may neither
have drawn him in to drink nor have taken advantage of his situation
(Gragg v. Holme, cited 18 Ves. 14) ; but the Court might under such
circumstances decree specific performance as against a second purcha-
ser taking with notice of the first agreement (Shaw v. Thackray, 1 Sm.
& G. 537), but where a plaintiff has by contrivance induced the defend-
ant to take too much drink, and afterwards taken advantage of his
condition by entering into an agreement with him, not onljr would
specific performance be refused, but the agreement would be rescinded
{Cooke V. Glayworth , 18 Ves. 12). And see Say v. Barwick, 1 V. & B.
95 ; Lightfoot v. Heron, 3 Y. & C. Exch. Ca. 586 ; Nagle v. Baylor, 3
D. & War. 60.

Although a Court of equitj' will not, in the absence of fraud or undue
' advantage, except in the case of the sale of reversionary interests
{Play ford v. Play ford, 4 Hare, 546 ; Chesterfield v. Janssen, ante, vol.
i., p. 541, but see sec. 31 & 82 Vict. c. 4,) refuse specific performance
merely because the price is inadequate or the contract improvident,
{Sullivan v. Jacob, 1 Moll. 4T'7,) yet as specific performance is discre-
tionary, it will not enforce a contract where it would subject a person
to great hardship, but will leave the plaintiff to obtain damages at law,
which might, under the circumstances, be very small. Thus, in
Wedgewoodr. Adams, 6 Beav. 600 ; 8 Beav. 103, trustees *joined
their cestui que trust in a contract for sale, and personally '- -'
agreed to exonerate the estate from any incumbrances thereon. There
were considerable incumbrances, and it did not appear whether the
purchase-money would be sufficient to discharge them, or what would
be the extent of the deficiency. Lord Langdale, M. R., refused to de-
cree a specific performance against the trustees, so as to compel them
to exonerate the estate, but left the purchaser to his remedy by action
for damages. " I conceive," said his Lordship, " the doctrine of the

9 to SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

Court to be this, that the Court exercises a discretion in cases of spe-
cific performance, and directs a specific performance, unless it should
be what is called highly unreasonable to do so. What is more or less
reasonable, is not a thing that you can define : it must depend upon the
circumstances of each particular case. The Court, therefore, must
always have regard to the circumstance of each case, and see whether
it is reasonable that it should, by its extraordinary jurisdiction, inter-
fere and order a specific performance, knowing at the time that if it
abstains from so doing, a measure of damages may be found and
awarded in another Court. Though you cannot define what may be
considered unreasonable, by way of general rule, you may very well, in
a particular case, come to a balance of inconvenience, and determine
the propriety of leaving the plaintiff to his legal remedy by recovery of
damages." And, on a subsequent day, his Lordship gave judgment,
observing — " After consideration, I think I cannot order a specific per-
formance of the agreement ; and with regard to its being a mere money
objection, I could not, when this case was argued, call distinctly to
my mind- a case of that sort, of which I had some recollection, and
which came before Lord Hardwicke. It is a case not actually reported,
but is cited in the argument in Bamsden v. Hylton (2 Ves. 307). There
a person being entitled to a small estate under the will of his father,
on condition, that, if he sold it within twenty-five j^ears, half the pur-
chase-money should go to his brother, sold it within the time, and the
question was, whether the agreement should be specifically performed ;
Lord Hardwicke thought not, because, by tlie specific performance of
it, he would lose half the purchase-money. I think that comes very
nearly to a case of mere pecuniary objection." And see Faine v. Brown,
cited 2 Ves. SOT ; Fopev. Harris, cited LofTt, T91 ; Costigan v. Hastier,
2 S. & L. 160; Hoivell v. George, 1 Madd. 1 ; White's case, 3 Swanst.
108, n. ; Goote v. Goote, 1 Sauss. & Soui. 393 : Kimberley v. Jennings,
6 Sim. 340; Talbot v. Ford, 18 Sim. 113 ; Ryan v. Daniell, 1 Y. C. C.
C. 60 ; Webh v. The Direct London and Portsmouth *Railway
[*509] (7(,„^pgj„y^ 1 j)e G. Mac. & G. 521 ; 9 Hare, 129 ; Watson v.
Marston, 4 De G. Mac. & G. 230, 239 ; Browne v. Coppinger, 4 Ir. Ch.
Rep. Y2 ; Williamson v. Wooton, 3 Drew. 210. So in a recent case the
defendant agreed to take from the plaintiff a lease of an unfinished
house, containing covenants on the part of the defendant to repair and
keep in repair, and the plaintiff agreed to finish the house. Sir John
Bomilly, M. R., refused to compel the defendant to take the lease upon
the ground that the house had been finished in such a defective manner
as to make it unreasonable so to do : Tildesley v. Glarkson, 30 Beav.
419. See and consider Oxford v. Provand, 2 L. R. P. C. 135.

The Court, however, will not upon the ground of hardship, refuse to
compel a person who was merely an agent, specifically to perform a

WOOLLAM V. HEARN. 941

contract to purchase : Saxon v. Blake, 29 Beav. 438 ; and see Chadwick
V. Maden, 9 Hare, 188.

Upon the same principle Courts of equity will not decree specific
performance of an agreement of which the consequence would be a for-
feiture. Faine v. Brown, 2 Ves. 307, cited; Peacock v. Fennon, 11
Beav. 355.

But when a defendant sets up the consequence of forfeiture as a de-
fence to a bill for specific performance, the Court must be well satisfied
before it admits the validity of such a defence, that forfeiture will fol-
low from specific performance of the agreement, and it must look also
at the fact by whose act and conduct the forfeiture would be occasioned.
The Court will not permit a defendant to put himself in such a posi-
tion as that his performance of his agreement shall create a forfeiture,
and then to turn round and say that the plaintiff shall not have a spe-
cific performance of the agreement, because the defendant has by his
own act enabled the landlord to enter, upon the agreement being per-
formed. Helling v. Lumley, 3 De Gt. & Jo. 463, 498, 499.

Nor will specific performance be decreed where there is uncertainty
(Swaisland v. Dearsley, 29 Beav. 430 ; Tillett v. The Charing Cross
Bridge Company, 26 Beav. 419; Morrison v. Barrow, 1 De G. F. &
Jo. 633 ; Taylor v. Portington, 1 De G. Mac. & G. 328 ; Price v. Salus-
lury, 32 Beav. 446 ; 32 L. J. (N. S.) Ch. 441), or a mistake as to what
forms the subject-matter of the contract. See Harnett v. Yielding, 2
S. & L. 549, 554 ; Neap v. Abbott, C. P. Coop. 333 ; Butterworth v.
Walker, 13 W. R. (M. R.) 168; In re Tottenham's Estate, 15 Ir. Ch.
Rep. 308 ; Hood v. Oglander, 34 L. J. (N. S.) Ch. 528 ; Denny v. Han-
cock, 6 L. R. Ch. App. 1 ; Bray v. Briggs, 26 L. T. Rep. (N. S.) 817 ;
20 W. R. (M. R.) 962, and Matins v. Freeman, 2 Kee, 25, where a per-
son who had purchased an estate at an auction, under a mistake as to
*the lot put up, was not compelled to complete his contract;
and in Colyer v. Clay, 1 Beav. 188, where, at the time of the L ^ "J
sale of a sum of money as a reversionary interest, neither of the parties
were aware that it had fallen into possession by the death of the tenant
for life, Lord Langdale, M. R., held, that as both of the parties had
entered into the contract under a common mistake, it would be mani-
festly unjust to enforce it as it stood. So, when a vendor, believing
by mistake that he had given the auctioneer a discretion to sell, but
not to let the property go under a reasonable sum, and in consequence
of such belief told a friend not to bid for him ; and the property sold
for a less sum than he intended to accept, specific performance was re-
fused : Day v. Wells, 30 Beav. 220. And see Cochrane v. Willis, 34
Beav. 359 ; 1 Law Rep. Ch. App. 58.

So, a Court of Equity will not decree specific performance when from
the circumstances it is doubtful whether the partj- meant to contract

942 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

to the extent that he is sought to be charged, (per Lord Redesdale, in
Harnett v. Yielding^ 2 Scho. & Lef. 554, and see Leyhmann v. M' Ar-
thur, 3 L. R. Ch. App. 496,) or if the parties cannot be put into the
condition for which they stipulated when the agreement was entered
into. In re The Mercantile and Exchange Bank, 12 L. R. Eq. 268.

Surprise is a ground upon which specific performance may be re-
fused : Willan v. Willan, 16 Yes. 12 ; 19 Ves. 590 ; 2 Dow. 2T5 ; Magrave
V. Archbold, 1 Dowl. 107 ; Blakeney v. Baggott, 1 D. & C. 405 ; 3 Bligh,
N. S. 237. In Twining v. Morrice, 2 Bro. C. C. 326, the vendor's agent
bid, and purchased the property tor the plaintiff, but specific perform-
ance was refused by Lord Kenyon, as the transaction was a surprise
upon third parties ; for it might appear to the persons present as a bid-
ding for the vendor, and as that might damage the sale, it proved such
an impediment to specific performance, that the party should be left to
law. See 6 Ves. 338; 10 Ves. 313; and Mason v. Armitage, 13 Ves.
25 ; Eill v. Buckley, 17 Ves. 394.

If an agent contract to sell property in a manner not authorised by
his principal, the contract will not be enforced. Thus, in Daniel v.
Adams, Amb. 495, where an agent had authority to sell by auction,
and he sold bj^ private contract, although for more than the price re-
quired, it was held that the purchaser could not compel specific per-
formance. And see Helsham v. Langley, 1 Y. & C. C. C. 175 ; White
V. Cuddon, 8 C. & F. 766 ; Manser v. Back, 6 Hare, 443.

So, likewise, where one of two executors erroneously believing that
he was acting with the authority of the other, contracted to sell a lease-
hold house, part of the *testator's estate, it was held by the
L -J Lords Justices, affirming the decision of Sir W. Page Wood,
V. C, that the purchaser could not enforce a specific performance of
the contract: Sneesby v. Thome, 7 De G. Mac. & G. 399.

Nor will specific performance of a contract be decreed, which would
involve a breach of trust (Mortlock v. Buller, 10 Ves. 292 ; Ord v. Noel,

5 Madd. 438 ; Bridger v. Rice, 1 J. & W. 74 ; Turner v. Harvey, Jac.
169; Neale v. Mackenzie, 1 Kee. 474; Wood v. Richardson, 4 Beav.
174; Thompson v. Blackstone, 6 Beav. 470; Bellringery. Blagrave, 1
De G. & S. 63 ; The Shrewsbury and Birmingham Railway Company
V. The London and North- Western Railway Company, 4 De G. Mac

6 G. 115; Maw v. Topham, 19 Beav. 576; Law v. Urlwin, 16 Sim
377 ; Rede v. Cakes, 13 W. R. (L. J.) 303), render a person liable for
a devastavit, {Sneesby v. Thome, 7 De G. Mac. & G. 399), or which
would give a benefit to a person in a fiduciary position, or to a firm
of which he is member, as against the persons or company in relation
to whom he stands in such position. Flanagan v. Great Western Rail-
way Company, 7 L. R. Eq. 116.

A mere contract between a trustee for sale and himself as a purchaser,

WOOLLAM V. HEARN. 943

to sell with one hand and buy with the other, is not such a contract as
can be specifically enforced at the instance of his heir-at-law, for the
purpose of converting his personal estate into real estate, and thus
altering the mode of descent : Ingle v. Richards, 28 Beav. 361, 365.
See vol. i. p. 845.

Nor will Courts of equity compel a person specifically to perform an
act which he is not lawfully authorised to do, otherwise he would be
exposed to a new action of damages at the suit of the person injured
by such act : and, therefore, if a bill is filed for a specific performance
of an agreement made by a man who appears to have a bad title, he is
not compellable to execute it, unless the party seeking performance is
willing to accept such title as he can give : and that only in cases where
an injury would be sustained by the party plaintiff, in case he were not
to get such an execution of the agreement as the defendant can give :
Harnett v. Yielding, 1 S. & L. 554 ; Lawrenson v. Butler, 1 S. & L.
19 ; Ullard v. Lord Llandaff, 1 Ball & B. 241 ; Peacock v. Penson, 11
Beav. 355 ; Eowe v. Hunt, 31 Beav. 420.

Nor will a Court of equity enforce a contract, where, though the
■ Court considers the title good, yet considers it suflBciently doubtful,
that it might reasonably give rise to litigation at a future time between
the purchasers, and persons not bound by the decree of the Court in
the suit for specific ^performance : per Sir John Romilly,
M. R., in Parkin v. Thorold, 16 Beav. 67. And to force a title C*^^^]
upon a purchaser, the opinion of the Court must be so clear that it
does not apprehend that another judge would form a different opinion :
Rogers v. Waterhouse, 4 Drew. 329. And see cases collected, Dart,
4th ed., p. 967, n. ; Dowson v. Solomon, 1 Drew. & Sm. 1 ; Collier v.
M'Bean, 14 W. R. (L. J.) 156.

Upon the same principle a Court of equity will not decree specific
performance of the contract for the purchase of a lease, where from
pending and threatened litigation, it is impossible to ascertain to whom
the ground-rent is payable, and the purchaser must be involved in im-
mediate litigation : Pegler v. While, 38 Beav. 403.

So, where a person having a contract for an underlease, entered into
possession of the premises, and committed acts which would have been
a forfeiture of the original lease, specific performance of the contract
to grant the underlease was refused : Lewis v. Bond, 18 Beav. 85.

Nor will specific performance be decreed of a contract which it is
impossible to perform (Oreen v. Smith, 1 Atk. 573), or which tlie Court
has it not in its power to enforce: Waring y. Manchester, Sheffield,
and Lincolnshire Railway Company, 7 Hare, 492.

Amongst other defences to suits for specific performance may be
mentioned want of mutuality in the contract, that it is illegal or ultra
vires. See Fry on Specific Performance.

r44 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

Where a contract Is reduced to
■writing, the writing is not only the
best, but the onlj' evidence of the
contract; Martin v. Berens, 17 P.
F. Smith, 459, 463. This results
from the natural inference that
the parties intend the instrument
to be the repository of their pur-
pose, and omit nothing which it
is material to introduce. Although
founded in fact, the presumption
is drawn by the law, and will not
yield to anything short of clear
proof of fraud or mistake ; Gou-
ghenhour v. Suhre, 21 P. F.
Smith, 462 ; Locke v. Whitney, 10
Pick. 2T9; Carter y. Hamilton, 11
Barb. 147 ; Hull v. Adams, 1 Hill,
601. Or as the rule was stated by
Ch. J. Taney in Selden v. Mijera, 20
Howard, 506, " parol testimony is
altogether inadmissible to show
that the contract was different from
tlie one reduced to writing, unless
it can also be shown that the party
was fraudulently deceived and
misled as to the contents of the
written instrument."

In Parkhurst v. Van Cortland,
1 John Ch. 273, 293, Chancellor
Kent said, " that a contract cannot
rest partly in writing and partly
in parol ;" but this dictum must be
understood as referr-iug to the
agreement before the court, which
was for the sale of land under the
statute of frauds ; and there is no
principle of law which precludes
tlie patties from reducing part of
the contract to writing, and leaving
another and distinct part to be es-
tablished orally. Fatter v. Hop-
kins, 25 Wend. 417. The true state-
ment of the rule seems to be, that
where the contract is written, there

is a presumption that the writing
contains the entire contract, which
cannot be overcome by parol, nor
unless it appears from the terms of
the instrument, or on applying it
to the subject matter, that the in-
tention was that it should only
include part ; Van Ostrand v.
Beed, 1 Wend. 424; McClure v.
Jaffrey, 8 Indiana, 79; Oiler v.
Oard, 23 Id. 212 ; Houghtailing
V. Lewis, 10 Johnson, 267 ; Crot-
zer V. Bussel, 9 S. & R. 78.

It follows that one who has put
his hand or seal to an instrument,
cannot allege that he did so on the
faith of an assurance that a co-
temporaneoiis or antecedent oral
stipulation should be as obligatory
as if it appeared in the writing.
The answer is, that if the
instrument is not worded in
accordance with his intention,
he should withhold his assent
until the mistake is rectified,
and cannot ask the court to re-
gard that as erroneous, which he
deliberately adopted as correct.
The motive for reducing the
agreement to writing, which is to
guard against the uncertainty of
oral testimony, and afford a sure
and lasting memorial of what has
been resolved on either side, would
fail if it were possible to set the
matter at large by an allega-
tion that the contract is partly
oral and partly written, contrary
to the natural and legal infer-:
eiice that the instrument covers
the entire ground ; see Lewis
V. Jones, 4 B. & C. 506; Hol-
ley V. Younge, 27 Alabama, 204,
207 ; Townsend v. Weld, 8 Mass.
146 ; Erwin v. Saunders, 1 Cowen,

WOOLLAM V. HBARN.

945

249 ; Hull v. Adams, 1 Hill, 601
Seed V. Moore, 3 Iredell, 310
Mead v. Steger, 5 Porter, 498
Vanderkarr v. Thompson,\^ Mich-
igan, 82 ; Hakes v. Hotchkiss, 23
Yermont, 231 ; Garter v. Hamil-
ton, 11 Barbour, 14 Y ; Bidgioay v.
Bowman, 1 Gushing, 268.

The question arose in Brigham
T. Bogers, 17 Mass. 571. The
declaration was in assumpsit on a
promise, alleged to have been made
by the defendant cotemporane-
ously with the execution of a
written lease, that the water on the
demised premises would not fail,
and that if there was an}' defici-
ency, he would remedy it. This
evidence was rejected at the trial,
and a nonsuit entered. Putnam, J.,
said, " if the contract which the
plaintiff proposes to prove is an
independent one, and collateral to
the lease which the parties made
and sealed, the testimony ought
to have been received. On the
other hand, if it cannot stand
alone, but is to be considered as a
part of the contract which was re-
duced to writing, the nonsuit
ought to stand. It is conceded
on the authority of Preston v. Ler-
ceau, 2 Wm. JBlackstone, 1249,
that the landlord could not prove
that the tenant was to make pay-
ments or perform services in ad-
dition to the stipulated rent. If
so it is but a fair and equitable
counterpart, to refuse the tenant
permission to show that the land-
lord was to make repairs, or aflTord
a greater or other consideration
than that specified by the lease."

In Howard v. Thomas, 12 Ohio,
N. S. 201, the suit was brought to
VOL. II. — 60

recover damages for the breach of
an alleged oral agreement on the
part of the defendant, to repair the
roof of a house which he had de-
mised to the plaintiff by a written
lease, and the plaintiff oflered to
prove that he had refused to sign
unless the plaintiff would consent
to put the roof in good order ;
that such a promise was made ;
and that he then in consider-
ation, and on the faith thereof
executed the lease. The court
held, that there was nothing in the
evidence to take the case out of
the general rule, that a written in-
strument cannot be altered, added
to, or contradicted by parol. lu
like manner, a purchaser cannot
prove that he bought on the faith
of an oral warranty, which was
left out of the written contract, at
the vendor's instance or with his
consent ; Smith v. Dallas, 35 Indi-
ana, 255.

In like manner a tenant who
has covenanted to rebuild in case
of any accident whatever, cannot
prove that it was agreed orally at
the execution of the instrument,
that he should be exonerated if
the premises were destroyed by
fire; Martin v. Berens, 17 P. F.
Smith, 459.

The rule is not less applicable
to unsealed agreements than to
specialties ; Heinricks v. Gehrke,
56 Missouri, 79; The State v. Le-
faivre, 53 Id. 470 ; Long v. The
New York Central R. Rd. Co., 50
New York, 76 ; Thorp v. Boss, 4
Abbot's Appeal Cases, 416; 1
Smith's Lead. Cases, 911, 7 Am.
ed. Hence parol evidence is inad-
missible that a bill of exchange or.

946 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

promissorjr note was executed as
a memorandum or receipt, and not
as the absolute undertaking wliicli
it imports ; see Adams v. Wordley,
1 M. & W. 374; Billings y. Bill-
ings, 10 Gushing, 178.

In like manner a bill of sale
containing an inventory of certain
articles, and describing them as
subject to certain mortgages
therein specified, is a bill of sale of
all the property in the inventory,
although some of the articles are
not covered by the mortgages;
and cannot be controlled bjr parol
evidence, that the words " being
subject," &c., were added for the
purpose of limiting the sale to the
mortgaged articles. Nor does it
vary the case that the mortgaged
articles are the onlj' ones delivered
to the vendee, and that the vendor
declares in so doing that he does
not deliver the others ; Ridgway
V. Bowman, 7 Gushing, 268.

It results from these decisions,
that one who knowingly permits a
stipulation to be excluded from
the writing, is estopped from set-
ting it up as part of the contract.
Such testimony cannot be received
on the ground of fraud, where it is
the only evidence of the alleged
deceit, nor unless a foundation is
laid by other proof; Proctor v.
Ghilson, 49 New Hamp. 62 ; 3Ic-
Elderry v. Shipley, 2 Maryland,
25 ; Broughton v. Goffer, 18
Grattan, 184 ; Beers v. Beers, 22
Michigan, 42; Fulton v. Hood, 10
Casey, 365, 374.

Where the writing is manifestly
partial, and intended not to cover
the whole contract, but only to
carry portions of it into effect, or

reduce them to order and certainty,
other portions which are not cov-
ered by the writing, may be estab-
lished by parol evidence.V See
Cohh V. Wallace, 5 Goldwell, ^39;
Winn V. Chamberlain, 32 Ver-
mont, 318 ; Moss v. Green, 41 Mis-
souri, 389 ; Webster v. Hodgkins,
25 New Hamp. 128 ; Willis v. Fer-
nald, 4 Yroom, 206 ; Svffern v.
Butler, 6 C. E. Green, 410; Van-
derkarr v. Thompson, 1 9 Michigan,
82 ; Lytle v. Bass, 7 Goldwell, 303 ;
Bonney v. Morrell, 57 Maine, 368.
It is of frequent occurrence, that
what one of the parties to an agree-
ment grants or promises is in writ-
ing, while the obligation of the
other party remains in parol.
Thus the consideration of a deed
may be shown orallj', because the
object of the instrument is to pass
tlie estate, and not to show what
or how much the grantor is to re-
ceive. See Elysville Man. Go. v.
TheOkisko 3Ian. Co., 1 Maryland
Ch. 392; Collijis v. Tillou, 26
Gonn. 368 ; Linsly v. Lovely, 26
Vermont, 121 ; Bowers v. Bell, 20
Johnson, 338; McCrea v. Fur-
mont, 16 Wend. 460 ; 1 Smith's
Lead. Gases, 399 ; 7 Am. ed. ; 2 Id.
722. So witnesses vaa.y be called
to prove a promise to pay at the end
of aj-ear, in consideration of receiv-
ing a present release, although the
writing is absolute and does not
set forth the provision ; Clark v.
Tappin, 32 Gonn. 56. In like man-
ner, a receipt for purchase money, is
prima facie intended to protect
the vendee by showing that he has
paid the price, and not to define
the obligation of the vendor ; and
it may consequently be shown that

WOOLLAM V. HEARN.

947

he warranted the goods, or entered
into other stipulations which, do
not appear in the receipt ; Terry
V. Wheeler, 25 New York, 520 ;
Filkins v. Whyland, 24 Id. 338.

So, it is a good defence to a
promissory note or other absolute
obligation for the price of the ma-
chinery and fixtures of a mill, that
the plaintiff gave an oral warranty
which has not been fulfilled ; Lytle
V. Bass, 1 Caldwell, 303 ; Batter-
man V. Ferie, 3 Hill, 171.

No case can be better fitted for
the application of this principle,
than where a written instrument
is executed for the purpose of car-
rying part of an anterior oral
agreement into eflfect ; and the rest
of the contract will then remain,
as it was in the first instance, open
to the whole range of proof; Fatter
V. Hopkins, 25 Wend, ^l*? ; Crane
V. The Library Co., 5 Dutcher,
302, 306 ; Witbeck v. Waine, 16
New York, 532; Barker v. Brad-
ley, 42 Id. 316.

For like reasons, a memorandum
of the nature and amount of the
articles embraced in a contract of
sale, and of the time and place at
which they are to be delivered, will
not preclude either party from prov-
ing the consideration by oral testi-
mony. See Laphavi v. Whipple,
8 Metcalf, 59 ; Holden v. Barker,
110 Mass. 324. And it may be said
in general that where the written evi-
dence of a contract is fragmentary,
consisting of detached memoranda
which do not cover the whole
ground, the outline may be com-
pleted by parol ; The Mobile Ma-
rine Dock Ins. Co. v. McMillan,
31 Alabama, 111 ; Hart v. 31iller,

3 Dutcher, 338 ; Finney v. Thomp-
son, 3 Iowa, in. The question is
nevertheless, one of law, to be deter-
mined from an inspection of the
documents, in view of all the cir-
cumtaiices, and where several
papers executed in the course of the
same transaction are in fact one con-
tract, the writing will be as con-
clusive as i f the w h ole was contain ed
in a single instrument. See Hull
V. Adams, 1 Hill ; Bell v. Bruen,
I Howard, 169, 183; 1 Smith's
Lead. Cases, 497, 1 Am. ed.; 2 Id.
259.

It is generally conceded that a
writing which purports to be a re-
cital or memorandum of a particu-
lar fact or stipulation, will not
preclude the right to establish the
existence of other and collateral
facts and stipulations, or even to
contradict or explain the facts al-
leged in the memorandum ; Allen
V. Pink, 4 M. & W. 140. Receipts
and bills of lading fall within this
principle, and may be varied or
explained by parol evidence ; The
Steamship Co. v. Brown, 4 P. F.
Smith, 17; Skarfe v. Jackson, 3
B. & C. 421. So parol evidence
is admissible to establish a con-
tract which is distinct from that
set forth in the deed, although
made at the same time, and relat-
ing to the same subject matter ;
see Howard v. Thomas, 12 Ohio,
N. S. 207 ; and a grantor may con-
sequently prove that the grantee
let the premises to him orally, at
the execution of the conveyance.

A written instrument is not,
however, necessarily less conclu-
sive as to what it embraces, because
it does not profess to include all

948 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

and parol evidence may be as in-
admissible to contradict or vary a
memorandum of part of an entire
contract, as if the whole were set
down ; Potter y. Hopkins, 25 Wend.
417 ; Cram v. The Library Co., 5
Dutcher, 302, 306; Wimple v.
Knoopf, 15 Minnesota, 440. In
Wimple V. Knoopf, the defendant
gave a written order for goods,
which he afterwards refused to
take. An action having been
brought for damages, he offered
to prove that he gave the order at
the plaintiff's request, and on the
faith of an assurance that it might
be recalled at any time during the
ensuing month. The court said
that if, as had been contended, the
case was one where part only of
the agreement had been reduced
to writing, it was also true that
the evidence went to varj' that
part, and was consequently inad-
missible. The engagement set
forth in the writing was absolute
and could not be shown to be re-
vocable by parol.

The question is one of intention
to be gathered from the language
of the instrument, and when a re-
ceipt is so worded as to indicate
that it is meant to be a memoran-
dum of the stipulations on either
side, it will be as conclusive as if
the contract were set forth for-
mally and at large; Knickerbocker
V. Eagleston, 6 l:;arb. 458 ; Miles v.
Culver, 8 Iowa ; Colt v. Gome,
101 Mass. 85.

A written contract may be quali-
fied or enlarged by a cotempora-
neoLis memorandum, because either
writing has an equal claim to be-
lief, and the meaning of the par-

ties must be sought in both ; Davis
V. Jones, 11 C. B. 625; Innes v.
Monroe, 1 Excheq. 413.

The recent course of English de-
cision tends to qualify and restrict,
rather than enlarge the operation
of the rule that a written contract
cannot be varied or controlled by
a cotemporaneous oral stipulation ;
Davis V. Jones, 11 C. B. 625. In
Pyvi V. Campbell, 6 Ellis & Bl.
310, evidence was received that
the plaintiff and defendant signed
the agreement which was the
cause of action, subject to an un-
derstanding which was declared
in words at the time, that it should
not be binding, unless it was ap-
proved of by a mutual friend on
whom they both relied. So in
Davis V. Jones, 11 C.B. 625, testi-
mou3' was admitted that a written
contract without date, was not to
go into effect until a future and
uncertain event took place. A
written instrument, said Jarvis,
C. J., " does notnecessarily operate
from delivery ; it is competent to
show that it was delivered as an
escrow, and though appearing on
its face to be presently operative,
is not really to operate until the
happening of a given event. In
Wallis y. Littell, 11 C. B., N. S.
366, suit was brought upon an
agreement to transfer a farm on
the terms and conditions under
which the defendant held it of
Lord Sidnejr, and a plea that the
agreement was made upon condi-
tion that it should be null and void
if Lord Sidney did not within a
reasonable time give his consent,
was held to be a good defence."

In these instances the evidence

WOOLLAM V. HBA.RN,

949

may have been admissible as show-
ing that the delivery was in escrow,
and not absolute ; but this can
hardly be said of Lindley v. Lacy,
IT C. B., N". S. 518. In Lindley
V. Lacey, the defendant, Lacey,
went into possession under a writ-
ten agreement to buy the good-
will and fixtures of a shop from
the plaintiff, Lindley, for the sum
of £145 ; the right of property to
remain in the plaintiff until pay-
ment. The writing contained a
recital that the defendant was au-
thorized to settle an action which
had been brought against the
plaintiflf by one Chase. Before
signing the instrument, the plain-
tiff said to the defendant : " Am I
to understand that Chase's bill is
to be settled, because that is the
ground work of the whole ?" The
defendant replied, that " he would
see it settled." The defendant
having failed to pay Chase's bill,
he issued a fi. fa. under which the
goods were sold, and the suit was
brought to recover damages for the
non-fulfilment of the promise. It
was contended for the defence that
the memorandum did not contain
any such stipulation, and that oral
evidence was inadmissible to vary
a contract which had been reduced
to writing. Erie, C. J., said, that
the cases which had been cited
during the argument, depended on
a preliminary question of fact, as
did almost every case which turned
upon the construction of a written
contract. " If the instrument shows
that it was meant to contain the
whole bargain between the parties,
no extrinsic evidence can be ad-
mitted to introduce a term which

does not appear there. But, if it
be clear that the written instru-
ment does not contain the whole,
and the jury find that there was a
distinct collateral verbal agree-
ment between the parties, not in-
consistent with the contract, the
law does not prohibit such distinct
collateral agreement from being
enforced. In some of the cases,
as in Harris v. Bickett, 4 Hurlst.
& N. J. 1, there was a prior verbal
agreement. In Davis v. Jones, 11
C. B. 625, the oral and the writ-
ten agreement were contempora-
neous. So, in Wallis v. Littell,
11 C. B., N. S. 369, there was a
contemporaneous oral agreement
that the farm was not to be trans-
ferred unless Lord Sidney con-
sented to accept the plaintiff as
his tenant. It is clear, therefore,
that if there be a distinct collat-
eral oral agreement between the
parties, it is immaterial whether it
precedes or is cotemporaneous
with the written agreement. I
think it is clear, from the evidence
here, that there was a distinct col-
lateral agreement that Chase's ac-
tion should be settled by the de-
fendant, and that evidence of that
agreement, which was perfecly con-
sistent with the written agreement,
was admissible."

Notwithstanding the language
held in Davis v. Jones, ante, 949,
the weight of authority appears to
be that a deed or bond, becomes
absolute at law, on delivery to the
grantee or other party in interest,
notwithstanding any declaration
that may be made to the contrary
by the grantor, or even by the
person who receives the instru-

9o0 SPECIFIC PERFORMANCE. — PAROL EVIDENCE,

nient, and that if relief can be had
nnder such circumstances, it must
be sought in a court of equity.
See Ward v. Lewis, i Piclc. 518 ;
nubhy V. Hubby, 5 Gushing, 519 ;
In Hubby v. Hubby, parol evidence
was held inadmissible, to show-
that a mortgage purporting to be
made to three persons to secure
the payment of debts due severally
to each of them, was delivered to
one of the mortgagees exclusively
for his use, and not for the use of
the others. Shaw, C. J., said,
"several interests may be created by
a mortgage to secure several debts,
but an instrument to two or more
is a joint instrument, Burnett v.
Pratt, 22 Pick. 556. This being
the character of the instrument,
signed and sealed bj' the plaintiff,
the court are of opinion, that by
the delivery of it to one of the
grantees, to enure as his deed to
such grantee, it thereby became
the deed of the grantor for all the
purposes expressed in it ; and that
it was not competent for the
grantor to restrain the operation
of it as his deed, by the use of
words, so as to give it effect as his
deed to one of the grantees, and
prevent it from having effect as to
the others. Any other construc-
tion would seem to be opposed to
the settled rules of law, one of
which is, that the effect and opera-
tion of a deed, must be ascertained
from its terms, and cannot be
varied by parol evidence. No
doubt evidence aliunde, parol,
as well as written, may be given
to prove that the deed was
not delivered, that it got into the
hands of the grantee by accident,

which if satisfactory will prove
that it was not tlie partj''s deed.

The deed could not be delivered
as an escrow, because an escrow
must be delivered to a stranger,
and not to the grantee, and if de-
livered to a grantee, it is absolute,
whatever intent majr be shown in
words to make it an escrow. It
could not be delivered to the gran-
tee conditionally, to take effect
upon the happening of a contin-
gency, for that would be contrary
to the provisions of the instrument
itself, Ward v. Lewis, 4 Pick. 518.
We think it is a general rule, that
the delivery of a valid instrument
to one of several grantees named
in it, makes it the grantees' deed,
and is in law a delivery to the use
of all according to its terms."

Wherever a writing is alleged
as evidence of a contract, there is
a preliminary question whether
the maker executed the instrument
voluntarily, and with the means
of knowing what it contained.
The obligation depends on his
assent, and if that is procured
through fraud or duress, the con-
tract is invalid. His seal or sig-
nature is prima facie evidence,
but it is not conclusive.

A grantor or obligor may con-
sequently aver, that he was induced
to put his hand to the instrument,
by a false representation of its
effect or purport. If the allega-
tion is substantiated by proof, it
will appear, that what he agreed
to was, not the writing, but some-
thing else, which it does not con-
tain, and the inference is inevitable
that it is not his deed. See Ed-
wards V. Brown, 1 Tyrwhitt, 182 ;

WOOLLAM V. HEARN,

951

Thoroughgood's Case, 2 Coke, 435 ;
Manser's Case, lb. 1 ; Green v.
North Buffalo Townxhip, 6 P. F.
Smith, lib ; The County v. Cop-
ley, 17 Id. 386 ; Stoever v. Weir, 10
S. & R. 25 ; 1 Smith's Lead. Cases,
689, 7 Am. ed. Or as the princi-
ple was stated by Spencer, C. J.,
in Dorr v. Munsell, 13 John-
son, 431, " If the deed be fraudu-
lently misread, the defendant may
plead, non est factum ; and so if
there is a fraudulent substitution
of one deed for another, and the
signature be put to that which the
party did not intend to execute."
See Anthony v. Wilson, 14 Pick.
305.

In Thoroughgood's Case, the
defendant in an action of tres-
pass, quare clausum f regit, ])lea,ded
a deed whereby the plaintiff re-
leased his estate in the premises
to one Wm. Chicken, by whom the
land was subsequently convej'ed
to the defendant. Issue having
been joined on a special replica-
tion of non est factum, the jury
found a special verdict, " that at the
time of the making of the said re-
lease, an annuity issuing out
of the said land was behindhand
and unpaid, that the plaintiflf was a
layman, and not lettered, and that
the writing was never read to him ;
that one Thomas Ward, had begun
to read it to the plaintiff; whea
one John Ward, took the writing
out of his hands, saying to the
plaintiff', Goodman Thoroughgood,
you are a man unlearned, and I
will declare it unto you, and make
you understand it better than you
can by hearing of it read, and then
said further to him, Goodman

Thoroughgood, the effect of it is
this, that you do release to William
Chicken all the arrearages of rent,
that he doth owe you, and no
otherwise, and then you shall have
your land again, to which the
plaintiff answered, if it be no
otherwise, I am content, and there-
upon the plaintiff giving credit to
the said John Ward, delivered the
said release to the said William
Chicken, and whether this upon
the whole matter be the plaintiff's
deed, the jury referred to the
court. And it was adjudged, that
it was not the plaintiff's deed ; and
in this case three points were re-
solved ; first, that although the
party to whom the writing is made,
or other by his procurement, doth
not read the writing, but a stran-
ger of his own head read it, in
other words than in truth it is, yet
it shall not bind the party who
deliveretli it ; for it is not material
who readeth the writing, so as he
who maketh it be a layman, and
being not lettered, be (without any
covin in himself) deceived ; and
that is proved by the usual form
of pleading in such case, that is to
say, that he was a layman, and not
learned, and that the deed was
read to him in other words, &c.,
generally, without shewing by
whom it was read. And if a
stranger, menace A. to make a
deed to B., A. shall avoid the deed
which he made by such threats, as
well as if B. himself had threatened
him, as it is adjudged. 45 E. 3, 6
a., Vide 39, H. 6, 36 a.

Secondly, that such layman, not
learned, is not bound to deliver
the deed, if there be not one pres-

952 SPECIFIC PERFORMANCE.— PAROL EVIDENCE.

ent which can read the deed unto
him, in such language that he
who should make the deed may-
understand it ; and that is the
reason that if it be read to him in
other words than are contained in
the writing, it shall not bind the
party who delivereth it, for it is at
the peril of the party to whom the
writing is made, that the true
effect and purport of the writings
be declared, if it be required, but
if the party who should deliver the
deed, doth not require it, he shall
be bound by the deed, although it
be penned against his meaning.

Thirdly, although the writing
be not read to the party, yet if the
effect be declared to him in other
form than is contained in the writ-
ing, and upon that he deliver it,
he shall avoid the deed, for it is all
one in law to read it in other
words, and to declare the effect
thereof in other manner than is
contained in the writing, if the
party who maketh the writing
(being not learned) desire one to
read the writing to him, and he
read it, or declare the effect thereof
to him, in other manner than the
writing doth purport, it (unless
there be covin betwixt them) shall
not bind him.

The question was again mooted
in PigoWs Case, 11 Coke, 26 b.,
28 a., where it was said to have
been declared in SchuUer's case,
that " every deed ought to have
writing, sealing and delivery, and
when anything shall pass from one
who has not understanding, but by
hearing only, it ought to be read
also, and it is true that he who is
not lettered, in law, is as he that

cannot see but hear only, and all
his understanding is by his hear-
ing. And so a man who is let-
tered and cannot see, is as to this
purpose taken in law as a man not
lettered, and therefore, if a man is
lettered and is blind, if the deed is
read to him in another manner, he
shall avoid the deed."

It was held in 3fanser's Case, 2
Coke, 1, in accordance with this
principle, that a refusal to execute
a deed until it is read in some lan-
guage which the grantor can under-
stand, is not a breach of a cove-
nant to convey, or for further as-
surance, although if the deed be
read to the covenantor in compli-
ance with his demand, he cannot
ask for time to consult counsel
whether it is in accordance with
the obligation imposed by the
covenant, because " ignorance in
reading or ignorance of the lan-
guage quae sunt ignorantia facti
may excuse, but as is commonly
said ignorantia juris non excusat."

Although one cannot ordinarily
allege his ignorance of the legal
effect of a writing as a reason why
he should not be bound, the case is
widely different, where he is fraudu-
lently led into the error by the mis-
representations of the grantee, and
he may then be as much entitled to
relief, as if the misstatement were
of a fact. Doe v. Bennett, 8 Carr,
and Payne, 124; The Chestnut
Hill Reservoir Company v. Chase,
14 Conn. 123 ; Edwards v. Brown,

1 Tyrwhitt, 182 ; Coger v. WGee,

2 Bibb, 321. In The Chest-
nut Hill Reservoir Company v.
Chase, Williams, C. J., said, " the
question is whether a representation

WOOLLAM V. HEARN.

953

of the legal effect of an instrument
which is false and fraudulently
made, and which is the procuring
cause of the execution of the in-
strument, shall avoid it. It is said
to be simply an assertion of what
the law is, which as every one is
supposed to know the law, can-
not mislead when both parties are
acquainted with the facts. How
far a mere mistake of the law is a
ground for setting aside a contract
seems to be somewhat doubtful ;
Champion v. Brown, 6 Johnson's
Ch. 189, 202. When the terms of
a contract are just as they were in-
tended to be, in the absence of all
fraud, it has been held that Chan-
cery cannot interfere, because this
would be rather to make contracts
than to rectify them ; Wheaton v.
Wheaton, 9 Conn. 96. But we
know of no decision, that where a
man ignorant of law, has been in-
duced to do an act injurious to him-
self, or to others, by the false and
fraudulent assertions of his better
informed opponent, he is not enti-
tled to relief." The riglit to relief
against such a fraud was also
conceded in Edwards v. Brown,
but it was at the same time held,
that where the defence is not, that
the terms of the instrument were
misstated, but that the grantor
was misled as to their legal effect,
it must be specially pleaded, and
cannot be given in evidence under
non est factum.

The judgment in Thorough-
good's Case illustrates the princi-
ple that one, although innocent,
shall not enforce or profit by a
grant obtained through fraud ;
Huguenin v. Baseley, 14 Vesey,

273, post ; Irwin v. Keen, 3 Whar-
ton, 347 ; Davis v. Calvert, 5 Gill
& J. 269, 302 ; Harris v. Delamar,
3 Iredell Eq. 219; Whelan v.
Whelan, 3 Cowen, 53T. It was not
alleged that the grantee instiga-
ted or procured Ward, to misstate
the purport of the deed, or that
he was cognizant of, or a party to
the deception, nor could the court
draw such an inference from a
special verdict. The first resolu-
tion accordingly declares " that
although the party to whom the
writing is made, or another by his
procurement doth not read the
writing, but a stranger of his own
head reads it in other words than
in truth it is, yet it shall not bind
the party who delivereth it." The
same thing is implied by the
terms of the third resolution, which
are that " if the party who maketh
the writing being not learned, de-
sires one to read the writing to
him, and he read it or declared the
effect thereof, it (unless there be
covin between them) shall not
bind him."

This result may be justified on
two grounds, one that the assent
which is essential to the obligation
of a contract, does not exist where
the party is deceived as to the ef-
fect of what he signs, the other
that one who takes advantage of a
wrong hucomea particeps crim,inis,
however free frorh blame he may
have been originally.

The resolutions in Thorough-
good's Case imply that the deceit
practiced on the plaintiff would
not have invalidated the deed if
he had not been illiterate, and
therefore obliged to rely for infor-

954

SPECIFIC PERFORMANCE. PAROL EVIDENCE

mation on others. It may be said
in support of this conclusion, that
if one can examine for himself, and
does not, it is his own folly, and
the law ought not to relieve him
from the consequences. The argu-
ment ought not to prevail in any
case where the grantor was fraud-
ulently misled bj' the party
who seeks to enforce the instru-
ment. One is not chargeable with
negligence, for not using that ex-
cess of care which refuses to take
anything on trust that is suscepti-
ble of verification. Such a prin-
ciple would impede the transaction
of business, which a reasonable
confidence promotes. If there
were no other ground for setting
aside a deed obtained by fraud, it
would be enough that public pol-
icy require that one should not be
allowed to profit by his own wrong.
It was accordingly declared by
Frowike and Kingsmil in an anonjr-
mous case in Keilwey, 10 b. pi. 6,
that " if I desire one to enfeoff me
of an acre of land in Dale, and he
directs me to make a deed or let-
ler of attornej' for one acre, and I
make the deed for two acres and
present it to him as being only for
one, and he seals the deed, the
deed is merely void whether the
feoffer be lettered or not lettered,
because he gave credence to me
and I deceived him."

Agreeably to the second resolu-
tion in Thoroughgood^s Case, " if
the party who should deliver the
deed doth not require the effect
and purport to be declared, he shall
be bound, although it be penned
against his meaning." This rule
is well founded in common sense

and justice, and is not less appli-
cable in a court of equity than it
is at law. There would be no se-
curity for title, if a grantor could
play fast and loose by simply ig-
noring the contents of the deed.
nis ignorance is nothing to the
purpose, unless he is misinformed ;
see Pindarv. The Renolute F. Ins.
Co., 4:1 New York, 114; Barrett
V. Union M. F. Ins. Co., 1 Gush-
ing, 115; Greenfield^s Estate, 2
Harris, 489, 496, 504 ; Kimball v.
Faton, 8 New Hamp. 391 ; Swift
V. Fitzhugh, 9 Porter, 39.

In Greenfield^ s Estate, Gibson,
C. J., said : " If a party who can
read, will not read a deed put be-
fore him for execution, or if being
unable to read, will not demand to
have it read or explained to him,
he is guilty of supine negligence,
which, I take it, is not the subject
of protection, either in equity or
"at law. At law it certainly is not.
If the party that is to seal the
deed can read himself, and doth
not, or being illiterate or blind,
doth not require to hear the deed
read, or the contents thereof de-
clared, ill these cases, albeit, the
deed is contrarj- to his mind, yet
it is good and unavoidable ; Touch,
56. But, adds Mr. Preston, the
editor, equity may correct mis-
takes, frauds, &c. For this he re-
fers to Manser's case, 2 Co. 3 b , in a
note in which there is a reference
to Bennett v. Wade, 2 Atk. 324 ;
which was the case, however, of a
conveyance by a man on the verge
of insanity, who had even been
married at the instigation of oth-
ers, without proposal made to him,
or without being conscious that

WOOLLAM V. HEARN.

955

he was so, who had been cautioned
by a friend not to sign papers, and
who stood so much in awe of the
grantee, that the bare name of the
latter would reduce him to sub-
mission when he was furious.
That was a case of undue influ-
ence.

The principle of Mr. Preston is
asserted also b.y Mr. Thomas in a
note to Thoroughgood's Case, 2
Coke 9 b., for which he refers to
Jones V. Crawley, Finch's Rep.
161, which was a case of positive
misrepresentation, and the Attor-
ney General v. Sothon, 2 Vern.
49T, which was a case of compul-
sion, neither of which sustain the
principle for which they were
quoted, and the dicta of these re-
spectable editors have to encoun-
ter authorities which bear the
other way without the benefit of
adventitious aid. In an anony-
mous case in Skin, 159, one who
could read made an agreement for
a lease for twenty-one years, the
lessor drew a lease for one year,
but read it twenty-one, and equity
refused to relieve the lessee, be-
cause he could read and would
not, and in this it certainly carried
the principle of non-intervention
a great way. But in Willes v.
Jernegan, 2 Atk. 251, equity re-
fused to relieve against a hard
bargain made by a man with his
eyes open, because there was no
fraud. Nor will a party be re-
lieved merely because he put an
unguarded confidence in another;
Langley v. Brown, Id. 202. * *

* * * The defendants are
not charged with fraud, impos-
ture or deceit. The complainant

relies exclusively on the abstract
effect of the fact, if it be a fact,
that the deeds were not read to the
grantor at the time of execution,
or the contents made known to
her at any time before ; yet, as she
could read, and did not, my opin-
ion is that the complainant be not
relieved on that ground without
superadded proof of management
and surprise."

An appeal was subsequently
taken, and the case reargued be-
fore the court in banc, which con-
curred with the opinion of the
Chief Justice on this point, al-
though a decree was rendered for
the complainant on the ground of
undue infiuence.

In Bauer v. Roth, 4 Rawle, 83,
the suit was brought on a bond
conditioned to indemnify the
plaintiffs, Peter Roth and John
Roth, against a liability which
they had incurred as sureties for
a third person. The defendants
pleaded that before and at the
time of the making of the said writ-
ing obligatory, they had assented
and agreed to indemnify the said
Peter Roth, but had refused to
become bound to John Roth ; that
they were unlettered men, not un-
derstanding the English language,
and that when the said writing
was presented to them for execu-
tion, they signed and sealed the
same, believing that it was in favor
of the said Peter, and not of
the said John, according to the
form and effect of the said agree-
ment, and then and there deliv-
ered the bond to the said Peter
Roth as their deed to him, and
not to the said John. Kennedy,

956 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

J., said, that the plea contained
no averment that the writing was
misread, or the contents of it mis-
stated. This, according to Tho-
roughgood^s Case, was the very
gist and essence of such a defence,
and the want of it rendered the
plea defective. If it appeared
that a deed was drawn through
fraud or mistake, in such wise
that the purport and effect were
materially different from what had
been agreed, and was then pre-
sented to and signed by one of
the parties in ignorance of the
error, it might be a ground for
relief in equity, although there
was no misreading or false repre-
sentation at the time.

In Pindar v. The Resolute Fire
Insurance Company, 4T New
York, 114, the plaintiff wrote to
the defendants enclosing a policy
issued by another insurance com-
pany, in which the plaintiff's stock
was described as " such as is usu-
ally kept in country stores," with
a request that the defendants would
forward a policy by mail, insuring
the plaintiffs to the amount of
$3,000, in exactly the same terms.
The defendants in reply sent a pol-
icy omitting the descriptive words
prescribed by the plaintiffs, and
conditioned to be void if any extra-
hazardous goods were kept in the
store. A fire occurred, and the
defendants relied on a breach of
the condition, as an answer to a suit
brought to recover compensation
for the loss. The plaintiff offered
to prove that he bad accepted the
policy without reading it, in the
belief that it was in the terms pro.
posed by his letter. The court

held that the failure of the insured
to read the policy, could not en-
large the liability of the insurers.
It was an established rule that prior
understandings and agreements
were merged in the writing as
finally executed.

The principle is clear, but we
may doubt whether it was cor-
rectly applied. Sending the policy
in response to the plaintiff's letter
without explanation or comment,
might well induce him to believe
that the terms which he proposed
were accepted ; and if so the trans-
action operated as a surprise,
which if not fraudulently inten-
ded had the effect of fraud. See
Moliere v. The Penn F. Ins. Co.,
5 Rawle, 346 ; The Susquehanna
Ins. Co. V. Perrine, T W. & S. 348,
353.

It has accordingly been held
that where one makes an applica-
tion for a policy of insurance, as the
agent of a known or of an undis-
closed principal, and the insurers
accept the application and agree
to prepare the policy, it is incum-
bent upon them to draw the instru-
ment in a way to give effect to the
agreement by describing the insur-
ance as made in favor of the agent
as such, or for the account of whom
it may concern, and if they fail
to do this, and the error is
not discovered until after the
policy has been accepted, a bill
may be filed to rectify the error ;
Phenix Ins. Go. v. Hoffheimer, 46
Miss. 645 ; Oliver v. Mutual Ins.
Co., 2 Curtis, 21*7.

In Oliver v. The Mutual Ins.
Co., it was held not to be conclu-
sive against such relief, that the

WOOLLAM V. HEARN.

957

policy was prepared in accordance
with memoranda whicli had been
drawn or assented to by the
party who effected the insurance,
and which did not disclose that he
was acting for another, and had no
interest in the vessel. Curtis, J.,
said, "parties who contract for poli-
cies of insurance are not expected
to insert in the contract every par-
ticular needful to be inserted in
the policy. The underwriters, on
their part, agree to effect insur-
ance ; the numerous limitations of
their liability as insurers, which ap-
pear in the different memorandums
and other special printed clauses
in the policy are not mentioned.
Their obligation is understood to
be to make out a policy in the
usual form, and containing the
usual clauses, adapted to the case
made by the agreement of the partes.
So if one who applies for insurance,
malies known that he is an agent
only, and the company agrees to
effect the insurance, or, as the
president of this company expres-
ses it, to write the risk, it is a ne-
cessary implication that such
words shall be inserted in the
policy as are usually inserted in
such cases, and as are necessary to
make a binding contract. It is to
be presumed that the underwriters
intend to earn their premium, and
therefore that they expect and de-
sire that the insurance should at-
tach upon some interest, and un-
derstand and agree, if a known
agent applies for insurance, that
the formula usually inserted when
an agent obtains insurance, and
which is necessary to the assump-
tion of the risk, shall be in the

policy when it is drawn. I think
it may be safely laid down, that
when a contract is made for a
policy, whatever clause is usually
inserted in policies, by reason of a
given state of facts, and which it
is necessary to insert to adapt the
policy to that state of facts, both
parties will be understood as agree-
ing to have inserted, if they are
both apprised of that state of
facts, and contract in reference to
it." It was at the same time held
that if the error was fraudulent or
wilful on the part of the agent, it
would preclude the principal, how-
ever ignorant he might be of the
deceit.

In Motiere v. The Fenna. Fire
Ins. Co., the. plaintiff applied
orally for insurance on certain ice
houses, stating that they were
built partly of brick and partly of
wood ; but the secretary of the in-
surance company wrote the order
down as being for insurance on
brick ice houses, and they were so
described in the policy, which was
prepared by him and delivered to
the plaintiff" who accepted it in ig-
norance of the mistake. Sergeant,
J., said, " a mistake in a policy may
be rectified when it clearly ap-
dears from the label, or other sat-
isfactory evidence, that it was re-
duced to writing in terms not con-
formable to the real intention of
the parties. Motteau v. London
Ass. Co., 1 Atk. 545 ; Henckle v.
Royal Exch. Ass. Co., 1 Ves. 317.
I see no reason why the same thing
may not be done in the present in-
stance by correcting the policy ac-
cording to the verbal description
furnished to the secretary, if the

958 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

evidence shows that he omitted a
material part of that description.
The memorandum, which has been
termed the order, possesses no
greater efflcacy than the policy,
and may itself be corrected in the
same manner. It is immaterial
whose act it was ; it is sufficient if
the evidence shows that it did not
conform to the intention of the
parties, whether by the mistake or
inadvertence, of the person who
drew it up. It may be remarked,
however, that by the conditions
annexed to the policy, the secre-
tary is designated as the person to
whom the description is to be fur-
nished. If he, acting in this capa-
city, undertakes to reduce the ver-
bal particulars to writing, and files
them as a memorandum or order,
the insured has a right to expect he
will insert all that is material, and
if he omits to do so, I should
deem it his act, and not the act of
the insured, and that the company
would, in equity, be precluded
from setting up this omission, as
an objection to a recovery in case
of loss, in the same manner as
where the policy is not made con-
formably to the order."

Whatever the rule may be where
the grantor's ignorance of the true
nature and operation of the deed
is wholly due to his own lachesj
and there is no covin or malprac-
tice on the part of the grantee, a
complaint that the deed was fraud-
ulently prepared, is not answered
by an allegation that nothing was
said to mislead the grantor, and
that he sealed the instrument
without reading it, or asking
what it contained. His negli-

gence in this regard may facili-
tate, but does not excuse the de-
ceit. This is conceded wliere the
grantee misstates the contents of
the instrument, and the case is
substantially the same, where one
instrument is fraudulently substi-
tuted for another. If a convey-
ance in fee is drawn and presented
to the owner of the premises, in-
stead of the lease which he has
agreed to execute, the imposition
is not less real, because no false
representation is made at the time,
and he affixes his seal without
inquiry.

It would, nevertheless, appear,
that where the purport or con-
tents of the deed are not mis-
represented at the liaie of execu-
tion, and the allegation is that it
was not prepared in accordance
with the instructions given by the
grantor, or the terms to which he
had agreed, the case lies beyond
the line which divides law from
equity, and relief must be sought
in the latter jurisdiction; Barrett
V. Union Mut. Ins. Co., 7 Gushing,
175; Swift V. Fitzhugh, 9 Porter,
39. Under these circumstances it
may be doubtful whether the vari-
ance is due to mistake or fraud,
aud although a legal tribunal may
proceed on the latter ground, it
cannot take cognizance of the
former. Moreover, the remedj- at
law is limited to setting the instru-
ment aside, and does not reach far
enough to correct the error, and
then carry the contract into exe-
cution as reformed ; Barrett v.
The Union M. Ins. Co., "7 Gush-
ing, 115.

In Swift V. Fitzhugh, 9 Porter,

WOOLLAM V. HEAKN,

959

39, the action was detinue for a
slave, and the defendant sought to
set aside the post nuptial deed of
settlement, under which the plain-
tiff claimed, on the ground that it
was presented to him as having
been drawn in pursuance of an
ante-nuptial agreement between
him and his wife, and that he
signed it under that belief without
reading it, and had since discov-
ered that there was a material dif-
ference. Ormond, J., said, " if a
deed be obtained by duress, or by
false and fraudulent practices, as
if it be falsely read to the party,
or he be induced to execute it
whilst in a fit of drunkenness,
such deed has no legal existence ;
and although free from the vices
just specified, it may be so wholly
false and fraudulent, as to be void
both at law and in equity. But a
court of law can hold no middle
course, but must either give effect
to or wholly reject a deed, whilst
a court of equity, by reforming it,
and making it speak the true in-
tention of the parties, can do ex-
act justice between them.

According to the testimony of
the witnesses, it was agreed be-
fore the marriage that the lady's
property should be conveyed in
trust for the use of the husband
and wife, and their issue. By the
settlement actually made the prop-
erty was conveyed in trust for the
separate use of the wife, with a
power of appointment after her
death.

If this were a proceeding in
chancery by the husband to reform
the deed of settlement, so as to
give him the joint use of the prop-

erty during his life, it would be,
to say the least, exceedingly diffi-
cult on this proof, to decree in his
favor. It would be entirely con-
sistent with this proof, that the
mother of the young lady under-
stood the ante-nuptial agreement
to be as set forth in the deed after-
wards executed, and that if she
had not so understood it, the mar-
riage would not have taken place.
It is not stated that any represen-
tations were made at the execution
of the deed, of its contents, or of
the terms of the ante-nuptial agree-
ment ; and it is not perhaps too
much to say, that such supine neg-
ligence on the part of tlie husband
in signing an instrument, the con-
tents of which he did not know,
or seek to know, must be consid-
ered as giving the mother a carte-
blanche, as to the terms of the
marriage settlement."

In Barrett v. The Union Mut.
M. & F. Ins. Co., the suit was
brought on a policy of insurance
conditioned to be void if any in-
surance had been effected which
was not mentioned in the policy , and
the defendants relied on the exis-
tence of such au insurance as a
breach. The plaintiff offered to
prove tliat the previous insurance
was communicated to them, and
that they assented to it and pre-
pared the policy and delivered it to
him, and that he accepted the in-
strument without reading it, in the
belief that it was drawn according
to the truth and in a waj' to satisfy
the condition. It was contended
on his behalf, that this was a
sufficient excuse for the breach.
Whether the failure to note the

960 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

previous insurance arose through
design or negligence, the defend-
ants were responsible for it, and
the plaintiff should not suffer from
their fault. The court said, that
the plaintiff had abundant oppor-
tunity to read the policy, and need
not have accepted it if it was not
satisfactory to him, or did not set
forth what had occurred between
him and the defendants. If he chose
to take it without looking at it, or
knowing what it contained, he was
himself chargeable with the negli-
gence of which he complained.
Where from mistake or fraud a
writing is so defective that instead
of conveying the meaning of the
parties it expresses something else,
if the case is one for relief, it can
only be had in a court of equity.
A court of law must take the in-
strument as it is without change,
diminution, or addition. The parol
evidence was therefore clearly not
admissible, and the plaintiffs could
not recover on the policy as it
stood."

The need of equitable aid in
such cases is the more apparent,
because if any part of a contract
is not attested by a seal, the whole
will be regarded by a court of law
as parol, and the covenantee must
not only prove the consideration,
but will lose the benefit of the es-
toppel; Newcomer v. Kline, 11
Gill. & J. 45T. In Newcomer v.
Klein, the word " dollars" was ac-
cidentally omitted in a bond exe-
cuted by a principal and surety
for money advanced to the princi-
pal, and it was held that the obli-
gee might file a bill against both
obligors for the correction of the

error, and to compel the payment
of the amount due. The court
said, " according to contract, the
plaintiff was entitled to a security
of higher dignity than a mere parol
promise. He was entitled to a
sealed instrument, the considera-
tion of which could not be inquired
into, and although he might have
a remedy for his money in a court
of law, in a different form of action,
it might not be so full, adequate,
and complete as the one contem-
plated by the parties ; Monlville v.
Houghton, 1 Conn. Rep. 549. In
that case a bond was intended to
be executed, but the seal was omit-
ted by accident, and relief was
granted in equity, although it was
contended that the party had his
remedy in law ; the judge in deliver-
ing his opinion observing that the
plaintiffs were entitled to a bond,
the consideration of which could
not be inquired into by law. No
doubt can be entertained as to the
jurisdiction of a court of equity to
correct the mistake in this case,
nor that such relief may be granted
even in the case of a surety ; see 1
Johnson Ch. 609."

A consideration is not essential
to the validity of a covenant or
bond, nor can a failure of consid-
eration be pleaded as a defence on
legal grounds to an action brought
to enforce the contract ; Key v.
Knott, 9 Gill & Johnson, 342 ;
Newcomer v. Kline, 11 Id. 457.
Hence the instrument will not be
invalidated by a misrepresentation,
however gross, with regard to the
nature or value of that which the
covenantor or obligor is to have
in return for what he agrees to

WOOLLAM V. HKARX.

961

give. Such at least seems to have
been the rule at common law ; and
it has been applied in numerous
instances in the United States;
Vrooman v. Phelps, 2 Johns.
Ill ; Dorr v. Munsell, 13 Id. 430 ;
Franchot v. Leach, 5 Cowen, 506 ;
Jackson v. Hills, 8 Id. 290 ; Bale
V. Roosuelt, 9 Id. 307; Stevens v.
Judson, i Wend. 471; Taylor v.
King, 6 Munford, 368 ; Wijche v.
Macklin, 2 Randolph, 426 ; Bur-
rows V. Alter, 7 Missouri, 24 ;
Donaldson v. Benton, 4 Dev
• & Bat. 435 ; Rogers v. Colt, 1 Za-

briskie, 18; Strykerv. Vanderbilt,
1 Dutcher, 482 ; Hartshorn v. Day,
19 Howard, 222 ; Mordecai v.
Tankersley, 1 Ala. 100; Stokes v.
Jones, 18 Id. 734 ; Thomi^son v.
Dmie, 32 Id. 99, 103; Gant v.
Hunsucker, 12 Iredell, 259 ; Canoy
V. Troutman, 7 Iredell, 155. The
appropriate remedy ig in chan.
eery, which may either rescind
the obligation, or reduce the re-
covery of the obligee in the ratio
of the failure of the consideration.
See Selden v. Myers, 20 Howard,
516 ; Bauer v. Both, 4 Rawle, 83,
94 ; Gordon v. Jefferies, 2 Leigh,
410.

It results from these decisions,
that fraud in the treaty or nego-
tiation through which a deed is ob-
tained, does not avoid the grant at
law. To have that effect, the fraud
must vitiate the execution of the
instrument, and be such that the
grantor can aver that it is not his
deed. This conclusion is entirely
consistent with the right to set
aside a grant or contract which
has been made in pursuance of an
illegal or corrupt design, at the in-
VOL. 11 61

stance of a creditor or other party
to whom it is injurious; see Col-
lins V. Blanlern, 2 Wilson, 341 ; 1
Smith's Lead. Cases, 690, 7 Aui.
ed.

In Swift V. Fitzhugh, 9 Porter,
39, the court cited and relied on the
case of Taylor v. King, 6 Munf.
366, where it was declared that
fraud may be given in evidence
to avoid a deed, where it relates
to the execution of the instru-
ment, as if it is misread to the
party, or his signature be ob-
tained to an instrument which he
did not intend to sign ; but that it
would be too much to vacate a
bond at law, because the obligor
was imposed on in a settlement of
accounts, and thus led to be-
lieve that the amount was due, or
because of the misrepresentation
or concealment of an antecedent
or collateral fact, which was the
inducement for the execution of
the bond.

It was held in Beldenv. Dacies, 2
Hall, 433, 447, on the strength of the
authorities above cited, that "the
only fraud which can be pleaded
at law to avoid a deed, is tiaud in
its execution ; such as a fraudulent
reading of it, or the substitution
of one instrument for another, or
the obtaining by some device, such
an instrument as the party did
not intend to give." This seems to
be an accurate statement of the
rule, if limited to the case where
a grantor or obligor seeks to
avoid the deed as having been
fraudulently procured. Oakley,
J., said, " in Franchot v. Leach
(5 Cowen, 606), the action was
covenant on an agreement by

962 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

the plaintiff, to sell and convey a
lot of land for a certain sum of
money agreed to be paid by the
defendant. The defendant offered
to prove that he purchased the lot
for the purpose of a distillery
which the plaintiff knew, and
falsely represented to the defend-
ant that a stream of water running
through the lot was sufficient for
that purpose, knowing the con-
trary to be the truth. The evi-
dence was rejected, and the court
held that it was properly rejected.
They said that the case of Dorr v.
Munsell, was in point, and they
state the principle to be, that the
fraud which " avoids a deed, is
not a fraudulent representation as
to the consideration, but a fraud
relating to the execution of it as a
fraudulent misreading, or obtain-
ing such an instrument as the ob-
ligee did not intend to give."

" In Jackson v. Hilla, 8 Cowen,
290, the plaintiff sought to recover
by virtue of a lease under seal from
the defendant. The defence was,
that the lease was obtained by cer-
tain fraudulent representations as
to a part of the consideration or
inducement to the making of the
lease. The court held that this
defence could not prevail, and
they adopt the principle in terms,
that " if the consideration of a
specialty be unlawful or coi-rupt,
it is void ab initio, and may be
jileaded, but that the mere failure
or want of consideration, is not
sufficient at law to avoid a spe-
cialty." The court, in that case,
revised all the preceding cases,
and recognized the principles upon
which they were decided, and in

reference to the case then before
them, Sutherland, J., who delivered
the opinion, said that the lease
in question was executed upon an
adequate consideration, " with full
knowledge on the part of the lessee
of what she was doing, and of its
legal effect and operation, but
under a misapprehension as to a
collateral circumstance, occasioned
by the false and fraudulent repre-
sentations of the lessee. I know
of no principle," says the Judge,
" on which such a lease can be
avoided at law."

The English authorities point
in the same direction ; Feret v.
Hill, 15 C. B. 201; D'Aranda
V. Houston, 6 Carr & P. 511;
Mason v. Ditvhbourne, 1 M. &
Rob. 460 ; and although the case of
Evans v. Edmonds, 13 C. B., looks
the other way, it is one of the rare
instances in which the point has
been mooted in Westminster Hall,
and it is difficult to believe that
if the courts of common law pos-
sessed such a jurisdiction, they
would not have been more frequent-
ly called on to exercise it. The
question is not, however, free from
doubt ; and in Phillips v. Potter, 1
Rhode Island, 289, it was broadly
asserted that "fraud vitiates everj'
contract, or at least that every
fraudulent contract may be avoided
as well at law as in equit}"- ; and
that in cases of fraud, courts of
law exercise concurrent jurisdic-
tion with courts of equitj^

The jurisdiction of the courts of
common law in this regard, has
been enlarged in some of the States
by statute, and is now concurrent
with that of chancery, Greathouse

TOOLLAM V. HEARN.

963

V. Dunlap, 3 M'Lean, 303, 306 ;
Smith V. Busby, 15 Missouri, 381 ;
Leonard v. Bates, 1 Blackford
ITS ; Huston v. Williams, 3 Id.
Ill ; Case v. Boughton, 11 Wend.
106 ; and the same result has
been attained in others, through
the gradual infusion of equit-
able principles, -which are no-w
constantly administered in Eng-
land and the United States
through legal forms. See Evans
V. Edmonds, 13 C. B. 777 ; Hoitt
V. Holcomb, 3 Foster, 535; Tom-
linson v. Mason, 6 Randolph, 169 ;
Phillips V. Potter, 7 Rhode Is-
land, 289 ; Baring v. Shippen, 2
Binney, 154; McCullochr. McKee,
i Harris, 290; Gray v. Handkin-
son, 1 Bay. 278 ; 2 American
Leading Cases, 431, 5 ed.

Chancery powers not having
been granted by the Legislature
in Massachusetts and Pennsyl-
vania, until a comparatively recent
period, were assumed by the courts
in order to prevent a failure of
justice ; and it has long been held
in those States, that one who is
induced to enter into an obligation
by fraud, is entitled to equitable
relief in the ordinary course of
law, although the instrument is
under seal, and the false statement
relates to the consideration of the
contract, and not to its purport or
effect. Barings. Shippen, 3IcGul-
locJiY. McKee, Bliss v. Thompson,
4 Mass. 488 ; Boynton v. Hubbard,
7 Id. 119; Somes v. Skinner, 16
Id. 348 ; Hazard Y.Irwin, 18 Pick.
95 ; Partridge v. Messer, 14 Gray,
182.

It is universally conceded, that
a misrepresentation with regard

to the consideration of an unsealed
agreement, is a sufficient ground
for setting it aside, or compensat-
ing the party who is injured by
the fraud ; Greery v. Holly, 14
Wend. 26. But parol evidence is
as inadmissible to vary such a
contract, as if it were under seal,
ante.

The rules of eviderice are the
same in equity as at common law,
and although a written contract
may be set aside or reformed for
fraud or mistake, it cannot be
varied or contradicted bj^ evidence
that the instrument was executed
on the faith of an assurance that
an oral stipulation should be as
obligatory as if it appeared in the
writing ; see Stevens v. Cooper,
1 Johnson, Ch. 425 ; Towner v.
Lucas, 13 Grattan, 705; 282;
Ware v. CotuZes, 24 Alabama, 446 ;
Dwight V. Pomeroy, 17 Mass. 303 ;
Broughton v. Goffer, 18 Gratten,
184 ; Knight v. Bunn, 7 Iredell,
Eq. 77 ; Westbrook v. Harbeson, 2
McCord, Ch. 112 ; Thomas v. Mc-
Gormack, 9 Dana, 108. Such a
promise is merely honorary, and if
the party who trusts to it is de-
ceived, he must bear the conse-
quences of his ill-placed confi-
dence, and cannot ask that a rule
of great moment to the commu-
nity, should be disregarded in order
to relieve him from a risk which
he has deliberately incurred, ante,
Portmore v. Morris, 2 Brown C.
C. 219 ; Lord Irnham v. Ghild, 1
Id. 92.

In the case last cited Lord Irn-
ham agreed to sell an annuity to
Child, with a proviso that it should
be redeemable on certain terms.

964 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

When, however, the time arrived
for the execution of the deed, this
stipulation was omitted by mutual
consent, in consequence of an im-
pression that it' would render the
transaction usurious. The com-
plainant subsequently filed his bill
to redeem, alleging that such was
the agreement although it did not
appear in the instrument. Lord
Thurlow held, that where there is
a deed in writing, it admits of no
stipulation that is not part of the
deed. Whether it adds to or de-
ducts from the contract, it cannot
be received on general grounds.
If the stipulation had been left out
fraudulently or through mistake,
there would have been a case for
equitable relief, but it appeared
from the evidence that the stip-
ulation was intentionally excluded
from the deed.

The weight of authority is in
accordance with this judgment,
that when the complainant does
not allege fraud or mistake in the
preparation of tlie writing, and it
appears that he knew its effect and
purport, there is no ground for the
equitable reformation of the con-
tract.

In Broughtonv. Coffer, 18 Grat-
tan, 184, the bill alleged that the
plaintiff agreed to buy a tract of
land containing 450 acres for a
given price, and that the defend-
ant tendered a deed for 318 acres,
described by metes and bounds,
alleging as an excuse for not con-
veying the residue that there was
some difficulty as to the title, but
that he would make it right and
execute a convej'ance in conform-
itj' with the agreement, and that

the plaintiff accepted the deed and
paid the purchase-money on the
faith of this assurance, which the
defendant subsequently refused to
fulfil. Joynes, J., said, " it would
not be pretended tiiat there was
any mistake in the deed. It con-
veyed precisely what both parlies
understood it to convey when it
was executed. The evidence could
not be received on the ground of
fraud because it was itself the only
proof of fraud ; Towner v. Lucas,
13 Grattan, 105, Nor was it ad-
missible to prove that the deed was
intended to be only a partial exe-
cution of the original parol con-
tract. All previous negotiations
were merged in the deed, which in
the absence of fraud and mistake
must be alone looked to for the final
agreement of the parties. The
bill should consequently be dis-
missed."

The rule that the writing is the
best and only evidence of the con-
tract, applies to the contract as
such, or in other words, to the
stipulations made on either side,
and does not preclude the right to
prove any fact or circumstance
that has a legal or equitable bear-
ing on the obligation of the deed
or bond. Hence the consideration
of a written contract, or the nature
of the transaction on which it is
based, may be shown by parol or
extrinsic evidence, although the
effect is to vary the operation of
the instrument and make it other
than the parties designed. A con-
tract innocent on its face, may in
this way be proved to be illegal
and void ; Martin v. Clarke, 8
Rhode Island, 389; Paxton v

WOOLLAM V. HEARX.

905

Popham, 9 East, 421 ; 1 Smith's
Leading Cases, 6'76, Y Arti. ed. A
resulting trust may be raised by
evidence that the purchase-money
of a conveyance was paid by a
third person, and not by tlie
grantee, ante, vol. 1. 333. And
proof that the consideration was a
loan, necessarily converts an abso-
lute deed into a mortgage, notwith-
standing any recital or stipulation
to the contrary which may be in-
troduced into the deed ; Strong v.
/Steward, 4 Johnson Ch. 16*? ; Jack-
son V. Lodge, 36 California, 28 ;
see Jones v. Statham, 3 Atkjms,
38T ; Eouser v. Lament, 5 P. F.
Smith, 311; Ear per' s Appeal, I i Id.
315 ; Siveitzer^s Appeal, 21 Id.
264 ; Slee v. The Manhattan Co., 1
Paige, 418 ; Van Buren v. Olm-
stead, 5 Id. 10 ; Boach v. Cosine,
9 Wend. 22Y ; Xunkle v. Wolfers-
berger, 6 Watts, 126 ; Hudson v.
Isbell, 5 Stewart & Porter, 61 ; De-
shazo V. Lewis, lb. 91 ; English v.
Lane, 1 Porter, 328 ; Johnson^s
Ex'or V. Clarke, 5 Arkansas, 321 ;
Yarbrough v. Newell, 10 Yerger,
376 ; Lane v. Dickerson, lb. SIS;
Streator v. Jones, 3 Hawks. 423 ;
McDonald v. WLeod, 1 Iredell
Equity, 221 ; Taylor v. Luther, 2
Sumner, 228 ; Randall v. Phillips,
3 Mason, 378 ; Wright v. Bates, 13
Vermont, 341 ; Morris v. Nixon, 1
Howard, 118; post, notes to How-
ard V. Earris.

It does not follow from these
decisions, that an absolute convey-
ance can be converted into a mort-
gage, by evidence which leaving
the consideration untouched, va-
ries or contradicts the agreement
as set forth in the deed ; and the

weight of authority seems to be
that it cannot, except in subordi-
nation to the rules by which chan-
cery is governed in modifying or
reforming contracts on the ground
of fraud and mistake ; Thomas v.
McCormick, 9 Dana, 108; see
Newton v. Fay, 1 0 Allen, 505.
Where there is no sufficient proof
of deceit or undue influence, or
that the purchase-money was in
truth a loan, a defeasance should
not be engrafted by parol in oppo-
sition to the terms of the deed ; see
Wesley v. Thomas, 6 Harris & J.
24, 28; Waikins v. Stockeft, lb.
435 ; Earper's Appeal, 14 P. F-
Smith, 315 ; Franklin v. Boberts, 2
Iredell Eq. 560 ; Kelly v. Bryan
6 Id. 283 ; Bright v. Wagle, 3 Dana,
252 ; Thompson v. Patton, 5 Lit-
tell, 74. This is not inconsistent
with the right to prove that a con-
veyance which purports to be in
satisfaction of an antecedent debt,
was made on the faith of an oral
stipulation that the debt should
subsist, and the grantor be at lib"
erty to redeem. There is a mani-
fest distinction between parol evi-
dence to contradict the writing,
and parol evidence of facts which
control its operation ; see Sweet v.
Parker, 7 C. E. Green, 453 ; Phil-
ips V. Eulsizer, 5 Id. 308 ; notes
to Eoward v. Earris, post.

The doctrine that an equity of
redemption may be set up in oppo-
sition to the language of the deed,
seems to have originated in the ap-
prehension that the debtor may be
unduly influenced b}^ his needs, and
the exactions of the creditor, wliich
lies at the foundation of the usury
laws. In general every one may

966 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

renounce a right given for liis bene-
fit, but a chancellor will not toler-
ate a restraint on the equity of
redemption, although imposed in
express terms and "with an oppor-
tunity for deliberation. And as
this rule is dictated by a policy
which is irrespective of the inten-
tion of the parties, it cannot be
evaded by putting a security for
money in the shape of an absolute
deed ; Harper's Appeal, 14 P. F.
Smith, 315; Ring y. Franklin, 2
Hall, 1 ; Richardson v. Thompson,
1 Humphreys, 151. It is always
admissible to contradict a deed for
the purpose of showing that the
real nature of the transaction is at
variance with principles that have
been established for the common
good; Collins v. Blantern, 2 Wil-
son, 341 ; 1 Smith's Lead. Cases,
690, Yth ed. Such decisions rest on
grounds which are peculiar to
themselves, and do not warrant a
recourse to parol evidence where
the private right is alone involved.
Decisions, nevertheless, exist,
which are. not reconcilable with
the rale of evidence laid down in
Lord Irnham v. Child. Thus in
Keisselback Livingston, 4 John-
son Ch. 144, it was decided that
a written agreement for a lease,
to contain " the usual clauses, re-
strictions and reservations in
leases given by the defendant,"
might be varied by a verbal
stipulation that the complainant
should not be subject to a con-
dition which the defendant had
invariably imposed on his tenants,
although the plaintiff by his own
showing, knew what the instru-
ment contained when he affixed

his signature. The chancellor said
that the prayer of the petition
was, that the writing should be
made to speak what the parties in-
tended it should speak when they
executed it, and that he saw no
objection to the admission of parol
evidence in the case before him,
that would not apply to every at-
tempt to correct a defect in a deed
by parol." It would, nevertheless,
appear that the complainant was
estopped from alleging mistake
with regard to an instrument which
he had executed, with a full knowl-
edge of its contents ; and the case
hardljr stands better on the other
ground taken by the chancellor,
that as parol evidence was requisite
to show what clauses were " usual,"
it rriight be carried far enough to
show what the parties understood
by that term.

The courts of Pennsylvania have
gone further in this direction, than
those of any other part of the
Union. It is well settled in
that state, that a stipulation by
one of the parties to a written
agreement, on the faith of which
it is executed by the other, may
control the writing, although there
is no evidence that it was made
with a fraudulent design ; Christ
V. Diffenbach, 1 S. & R. 464;
Miller v. .Henderson, 10 Id. 290 ;
Hultz V. Wright, 16 Id. 345 ; Clark
V. Partridge, 2 Barr, 13 ; Clark
v. Partridge, 4 Id. 166. These
decisions overrule the doctrine of
Lord Irnham v. CTiiZ^Z, and proceed
on the ground that the violation
of such a promise is a breach of
good faith, which a chancellor
may redress by a decree of specific

WOOLL AM V. H E A RN .

967

performance; Campbell v. 31' Clen-
achan, 6 S. & R. 171; Miller v.
Henderson, 10 Id. 260; Lyon v.
The Huntingdon Bank, 14 Id. 283 i
OliverY. OZi'uer, 4 Rawle, 141 ; Ren-
shaw T. Oans, T Barr, 119; Rea-
rioli V. Swineheart, 1 Jones, 233.
"It is doubtless a s;eneral prin-
ciple of law," said Rogers, J., in
Oliver V. OZiDer,that parol evidence
shall not be admitted to destroy,
control, add to, or alter a written
instrument, but the exceptions to
the rule are equally well settled.
Ever since the case of Hurst v.
Kirkbride, cited in 1 Binn. 616, it
has been the practice to receive
parol evidence of what passed at
the time of the execution of deeds,
or at and before the execution.
When the fairness of the transac-
tion is impeached, it is immaterial
whether the party intended a fraud,
at the time of the contract, or whe-
ther the fraud consists in the
fraudulent use of the instrument;
HuUz V. Wright, 16 S. & R. 345;
■Lyon V. Huntingdon Bank, 14 Id.
283; Thomson v. White, 1 Dall.
424, are of this description. In
Thompson v. White, the fraud con-
sisted in Lawrence Saltar's ob-
taining a conveyance of his wife's
estate under a solemn promise to
make a settlement, which he after-
wards neglected to do. It has
never been doubted that he entered
into the contract with good faith.
In his last sickness, he expressed
uneasiness at leaving no will, be-
cause, as had always been sup-
posed, he thereby intended to com-
ply with his promise. The fraul
consisted in the fraudulent use
which was attempted to be made

of the deed, in the exclusion under
the general rule of law, of Mary .
Thompson, the sister of Mr. Saltar,
and to whom Lawrence Saltar pro-
mised to assure the property. '' As
to fraud," said Justice Tod, who
delivered the opinion of the court,
in Hiiltz V. Wright, " it is not sup-
posed to be necessary to have
proof express, that a writing has
been obtained fraudulently, in or-
der to admit parol evidence against
it, on that score ; but parol evi-
dence may be permitted to resist
the fraudulent use of a writing in
the obtaining of which no fraud
can be made to appear." That
was a case where, in debt for rent,
parol evidence was admitted to
show, that in making a lease for
nine years, rendering rent, it was
understood and agreed by all par-
ties, that for the last nine months
no rent should be paj'able. So
also in an action on a single bill,
the defendant, under the plea of
payment, is permitted to prove,
that the bill was taken subject to
a parol agreement, made long be-
fore its date ; Lyon v. Huntingdon
Bank, 14 S. & R. 283. In Robin-
son V. Eldridge, 10 Id. 142, as well
as in the case just cited, the de-
fence consisted of a number of
facts, which took place at different
times, and which all tended to
make one whole. It is difficult to
discover any difference between
the evidence offered, and the evi-
dence which was received in Gamp-
bell V. 31' Glenachan, 6 S. & B.
172. Parol evidence was given of
what passed between the parties,
at, and immediately before the
execution, when the plaintifT was

968 SPECIFIC PERFORMANCE. — PAROL EVIDENCE,

induced to execute the articles of
agreement, by the defendant's pro-
mises. The case of Campbell v.
M'Glenachan, was an action on
the case, on a parol contract, in
"which the defendant promised the
plaintiff to permit him to take as
much timber from the lands pur-
chased by the defendant from the
plaintiff, as would be sufHcient to
build a boat to go down the Ohio.
The same defence as has been urged
here, was then taken, but without
avail. As is justly observed, to
refuse performance of a verbal
promise, after having made use of
it to get the plaintiflTs signature
to the agreement, is a trick, of
which the law will not permit
the defendant to avail himself.
If we are to take what the plaintiff
offers to prove to be true, what are
we to think of the defendants' con-
duct ? Surely every person must
see they are attempting to avail
themselves of the legal advantage,
at the expense of every principle
of honor and common honesty. It
may be a difficult matter in some
cases, to prevent the fraudulent
use of an instrument, except
through the medium of parol evi-
dence. For the same principle I
also cite, 1 Ld. Raym. 464 ; Christ
V. Diffenbach, 1 S. & R. 464;
Lessee of Dinkle v. Marshall^ 3
Binn. 58Y.

" I do not feel myself at liberty
to reason on the policy of the rule,
or the exceptions to it. It is suffi-
cient for me, that the point has
been settled by a train of authori-
ties, which it is now too late to
overturn."

The same view has been taken

in some of the other States : Mur-
ray V. DaJce, 46 California, 644 ;
Coger's Exor^s v. Bfagee, 2 Bibb.
321 ; Taylor v. Gilman, 25 Ver-
mont, 411. In Taylor Y. Gilman, a
suit was brought on the covenants
of warranty and against incum-
brances in a deed from the defend-
ant ; the breach declared on being
that part of the land conveyed had
been taken for the purposes of a
railway before the deed was execu-
ted. The defendant filed a bill set-
ting forth that the appropriation of
the land was well known to the
plaintiff when he accepted the con-
veyance, and that it was then agreed
orally that the plaintiff should re-
ceive a certain proportion of the
damages awarded as compensation
for the land, and forego his claim
on the defendant. Isham, J., said,
" it would seem from the testimony,
that there is no ground for relief
in consequence of any accident or
mistake, for the deed and its cove-
nants were drawn as they were un-
derstandingly ; the attention of
the parties and the scrivener was
called at the time to this matter
of which they now complain; so
that they intentionally neglected
to make these covenants conforma-
ble to the true contract of the par-
ties. There was, therefore, no ac-
cident or mistake, either in fact or
law, existing in the case. Neither
does the bill set up any mistake or
accident of the parties in the draw-
ing or execution of the deed or
covenants, as aground of equitable
interference. The onlj' ground,
therefore, upon which testimony
can be received, to control the legal
effect and operations of these cove-

WOOLLAM V. HEARN.

969

nante, is the fraud of the party in
attempting to enforce them in
violation of his agreement. The
evidence is regarded as sufficiently
certain and clear, in the proof of
that contract, that the damages to
be paid by the railroad for their
right in the pi'emi^es, were to be
divided between these parties in
specified proportions, and that no
claim was to be made on the
grantor, on his covenant in this
deed, for any matter arising out
of that negotiation ; and evidently
it was in confident reliance upon
this understanding, that the
grantor neglected so to qualify his
covenant, that no right of action
should arise thereon for that mat-
ter. Regarding these facts, th»re-
fore, as sufficiently proved, and
the bill as sufficiently setting up
the fraud and asking for relief on
that ground, we think the case is
brought within the general rule
upon which relief is granted." An
injunction was accordingly issued
to restrain the prosecution of the
suit at law.

In Murray v. Dake, the defend-
ant was induced to execute a
written lease of a house and lot by
an oral promise that he should be
allowed to add another story to the
building, and to occupy it as a
dwelling. ITe erected the story
and took possession of it without
objection from the lessees, but the
latter subsequently brought an
ejectment, and relied on the writing
as conclusive that his title extended
from the ground usque ad caelum.
The court held that there had been
no mistake as to the contents of the
lease, because the lessor knew

what the lease contained when he
executed it. Nor did it appear
that the lessees had any fraudulent
design at that time ; and it might
on the contrary, be inferred, that
the idea of breaking their promise
did not occur to them until
after the second story had been
erected. It was nevertheless es-
tablished under the authorities in
Pennsylvania and Vermont, that
a court of equity might interfere
to prevent the unconscientious use
of a paper, for a purpose not con-
templated when it was made ; al-
though the execution of the instru-
ment was not vitiated by mistake or
fraud ; Parks v. Chadwick, 81 W.
& S. 96 ; Benshaw v. Gans, 1 Barr,
117 ; Taylor v. Gilman, 25 Ver-
mont, 415. It had been declared
in Parks v. Ghadwick, that to ob-
tain an instrument for one purpose,
and use it for an another and dif-
ferent purpose, was as much a
fraud as to obtain it by fraudu-
lent statements. It followed, the
plaintiffs were not entitled to re-
cover the upper story of the
house from the defendants.

Whatever may be thought of the
reasons assigned by the court,
the judgment was undoubtedly
correct, because, there was a part
performance of the contract, which
corroborated the parol evidence,
and took the case out of the Sta-
tute of Frauds.

The decisions above cited, may be
referred to the doctrine of equitable
estoppel ; that one who induces an-
other to change his position for the
worse, by^ a representation or assur-
ance shall be compelled to make his
declaration good : see Wheelton v.

970 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

ffardisty, 8 Ellis & Bl. 231, 262. It
does not, therefore, apply, unless
the oral promise was a determin-
ing cause, without which the in-
strument would not have been
executed ; Martin v. Berens, 11
P. F. Smith, 459 ; Clark v. Part-
ridge, 2 Barr, 13 ; 4 Id. 166 ; Rain
Y.Kahlbach, 14 S. & R. 59 ; see
Pothier on Obligations, part 1, ch.
1, art. 8, sect. 3. Accordingly, in
Hai7i V. Kahlbach, evidence that
the obligee in the bond sued
on, had declared that he would
require nothing more than the
interest during his life, and that
the instrument should be null
and void when he died, was held
inadmissible unless the obligor
was thereby induced to execute
the bond.

In Clarh v. Partridge, 2 Barr,
13; 4 Id., it was alleged in the
declaration that a material clause
had been left out in drawing the
agreement, and that the omis-
sion was discovered when the par-
ties met to execute the instru-
ment, but not corrected in conse-
quence of the assurance of the
defendant that he would not take
advantage of the mistake, Rogers,
J., said, that the count was defec-
tive in not averring fraud. It was
not enough to set forth the facts
from which fraud might be infer-
red. This dictum hardly consists
with the doctrine of pleading. The
gist of an action for deceit is wil-
ful falsehood, and where this is
sufficiently alleged, it is superflu-
ous to add that the misstatement
was fraudulent. All that the de-
claration need aver is, that the
defendant made the representa-

tion knowing it to be false.
In like manner, if obtaining an in-
strument for one purpose and
using it for another be a fraud
entitling the injured party to re-
lief, it is needless to couple the
allegation of the wrong with an
injurious epithet.

In Fulton v. Hood, 10 Case}',
365, 374, the court below ex-
cluded evidence that it had been
verbally agreed at the execution
of a bond and warrant of attorney,
that judgment should not be en-
tered on the bond for a certain
period, unless in a specified con-
tingency ; and this ruling was
affirmed on error by the court
above. Strong, J., said " the prin.
ciple of the Pennsylvania cases is
that obtaining a writing for one
purpose, and using it for another
and unfair purpose is fraudulent,
and the subsequent abuse opens the
door to parol evidence of what
took place at the execution of
the instrument. If the principle
goes as far as the plaintiff in error
contends, the rule which excludes
parol evidence when offered to
alter, add to, or contradict a writ-
ten instrument, would be utterly
annihilated. The offer of such
evidence presupposes that the in-
strument which it attempts to re-
form is used for a purpose not
originally contemplated, and that
it is so used the parol evidence
proposes to prove. If it must be
admitted on the ground that such
an abuse of the instrument consti-
tutes a fraud, then the very fact is
assumed before the evidence is
given, which it is introduced to
prove. The misuse or perversion

■WOOLLAM V. HEARN.

971

must consequently be established
in the first instance, to make way
for the reception of the psirol evi-
dence." So in Blakesley v. Blakes-
ley, 10 Harris, 23Y, it was held in-
admissible to prove that a mar-
riage settlement had been executed
on the faith of an assurance that
it should pass the title to land
which the instrument did not pur-
port to convey. Black, Ch. J.,
said that when " one claim s land not
embraced by the instrument on
which he sues, he is encountered
not only by the statute of frauds,
but by the unbending rule of law
that the deed is conclusive evi-
dence of the contract."

It was said in like manner in
Fisher v. Diibert, 4 P. F. Smith,
463, that " a writing may be re-
formed on account of fraud, acci-
dent or mistake ; that is to say,
where something has been inserted
or omitted contrary to the true
meaning and intent of the con-
tracting parties, parol proof may
be adduced to correct the error,
whether it comes under one or the
other of these heads. So parol
proof is sometimes admitted
to explain latent ambiguities,
local terms, and terms of art in
writings, but it may safely be
asserted that there is no ground
for and no case of its admission
when none of these grounds
exist." The cases of Collins v.
Baumgardner, 2 P. F. Smith, 461 ;
Harbold v. Kuster, 8 Wright, 392 ;
and Miller v. Freschorm, 7 Casey,
252, are to the same eflfect.

In the Powelton Goal Company
V. McShane, 25 P. F. Smith, 238 ;
the court reverted to the ground

taken in the earlier decisions.
There suit was brought to recover
damages for the breach of an
alleged stipulation, to furnish 10,
000 tons of coal, to the plaintiff,
on or before October 1st, 1868, to
be transported in his vessels. It
appeared at the trial, that the con-
tract as reduced to writing, was
that the plaintiff would transport
the coal at such times as the de-
fendants might desire ; but the
plaintiff offered to prove that when
the paper was shown to him, , he
refused to sign it, unless the de-
fendants would deliver the coal by
the 1st of October; that such an
assurance was given ; and that he
then affixed his signature. This
evidence was received, and a ver-
dict and judgment given for the
plaintiff, which was sustained by
the court above. Gordon, J., said,
that " to hold that a contract might
be enforced without regard to the
express parol stipulation under
which it was signed, would be to
disregard long and well established
legal principles, as well as the
plainest demands of common hon-
esty."

Where a deed is executed by a
man of sound mind, with a knowl-
edge of its contents, there is ob-
viously no room for an allegation
of mistake ; Clark v. Partridge,
2 Barr, 14 ; Tyson v. Passmore,
lb. 122, 124, while fraud can
hardly exist without concealment
or misrepresentation ; Taylor v.
Oilman, 25 "Vermont, 411, 414;
yet in Chew v. Gillespie, 6 P.
F. Smith, 308, the grantor was
permitted to show that the deed
was not drawn in accordance with

972

SPECIFIC PERFORMANCE. PAROL EVIDENCK.

his instructions, although it -was
read to him, and he sealed and de-
livered it without objection. And
the recent case of Woolford v. Her-
ririgton, 24 P. F. Smith, 311, goes
to the full extent of the proposi-
tion, that one who induces another
to act or to refrain, by a promise
that the contract shall be reduced
to writing, or shall be as valid as
if it were a part of an instrument
which is prepared and executed at
the time, is thereby precluded from
alleging the want of written evi-
dence as a reason whj^ the con-
tract should not be enforced, al-
though the subject-matter is within
the statute of frauds. When, said
Sharswood, J., " it is a part of the
agreement that the trust shall be
declared in writing, or it is shown
that the trust was not inserted in
the deed under a stipulation to
that effect, in consequence of a
verbal promise to perform it, a
fraudulent intent at the time of
the agreement need not be shown
in order to establish the trust.
The fraud consists in the fraudu-
lent use of the instrument." It
may be observed that Thomp-
son's Leesee v. White, 1 Dallas,
447, which was cited and relied on
as an authority for this judgment,
was decided before the re-enact-
ment of the "Tth section of the
statute of frauds, which is now in
force in Pennsylvania ; see Bar-
net V. Dougherty, 8 Casey, STl ;
The true ground of the decision,
in Thompson v. White, seems to
be that a volunteer who obtains a
gift through a promise that it shall
be held wholly or in part for an-
other whom the donor intends to

benefit, is affected with a trust ex
maZe/icio, if he doesnot keep his en-
gagement, vol. 1 , 352. It does not ap-
ply to a purchaserfor value, nor un-
less the promise is made to the
donor, and is a moving cause with-
out which he would not have made
the deed or will ; ante, 9^0.

If the language held in Fulton
V. Hood, conflicts with the course
of decision in Pennsylvania, it is
sustained by the authorities else-
where, which establish that when
the writing purports to contain the
contract, the parties are estopped
from setting up any stipulation
which does not appear in the writ-
ing, and that the case cannot be
taken out of this rule by alleging
that the writing was. executed on
the faith of an assurance that the
stipulation should be as valid as
if it had been inserted in the in-
strument, ante, 945 ; Ruse v. The
Life Ins. Co., 23 New York ; M'El-
derry v. Shipley, 2 Maryland, 25 ;
Wilson V. Watts, 9 Id. ; Smith v-
Williams, 1 Murphy, 426 ; How-
ard V. Thomas, 12 Ohio, N. S.
201, 205.

It has also been held in Penn-
sylvania, that the stipulation set up
as modifying the writing, must be
so far cotemporaneous, as to rebut
the presumption that it was ex-
cluded by mutual assent, or
merged in the contract as finally
made ; Cozzens v. Stevenson, 5 S.
& B. 421. In this instance Ch. J.
Tilghman said that such evidence
must be confined to wliat takes
place at the time of sealing and de-
livery, and that antecedent declara-
tions cannot be received, unless
they are reiterated when the par-

WOOLLAM V. HEARN

973

ties meet to execute the deed. It
would, notwithstanding, appear
that if the intention can be sought
dehors the instrument, the ques-
tion is not when the declaration
was made, but whether the com-
plainant was misled by the decla-
ration. In Wood V. Dwarris, 11
Excheq. 493, the defendant pleaded
to an action on a policy of in-
surance, that the policy was issued
on the express condition that if
any statement in the application
for insurance was untrue, the con-
tract should be void, and that the
application did contain a false and
untrue statement. The plaintiff
replied on equitable grounds, that
before the policy was executed, the
defendants published a prospectus
containing a statement that all
policies eflected by them should be
indisputable, except on the ground
of fraud. The rejoinder was, that
the policy was issued on the basis
of the application mentioned iu
the plea, and there was not at
the time of the making of the
policy', any such promise or decla-
ration on the part of the defend-
ants, nor did they make such a
promise or declaration at any time,
except in the prospectus alleged
in the replication. The plaintiff
demurred, aud judgment was en-
tered in his favor on the ground
of the insufficiency of the re-
joinder, and that the replication
was a good equitable answer to the
plea. The point was elaborately
discussed not long afterwards in
Wheelton v. Eardisty, 8 Ellis &
Bl. 231 ; but the case went off
on other grounds.

In liuse v. The Ins. Cl., 23

New York, 516, suit was brought
on a policy conditioned to be void,
if the annual premiums were not
paid on or before the days therein
named. It appeared in evidence
that the plaintiff received a pros-
pectus containing the following
clauses: "Every precaution is
taken to prevent a forfeiture of
the policy." " A party neglecting
to settle his annual premium M)iY/im
thirty daya after it is due,or paying
assessments within the sixty days,
specified within the charter, or re-
fusing to give satisfactory security
upon the note, forfeits the interest
he has in the policy." It was con-
tended that these clauses excused
a forfeiture arising from a fail-
ure to pay at the day. The
court held that they did not, and
that tlie case came under the rule
that when the " parties enter into
a written contract, all previous
negotiations and propositions in
relation to such contract, whether
parol or written, are to be regarded
as merged in the writing."

The case of Wood v. JDwarris,
may be reconciled with this doc-
trine, by the aid of a principle to
which the court did not advert in
giving judgment! Ordinarily the
declarations on either side, ante-
rior to the contract, are merged in
the writing as finally prepared and
executed, and wliat that does not
contain is presumed to have been
deliberately excluded ; liuse v. The
Life Ins. Co., 23 New York, 516 ;
The Cincinnati E. Ed. v. Fearce,
28 Indiana, 502; Wilson v. Sher-
burne, 6 Gushing, 68 ; Doyle v.
Dixon, 12 AUeu, 576. It was on
this ground that C. J. Tilghman re-

974 SPECIFIC PEEFORMANCE. — PAROL EVIDENCE,

lied in Stevenson v. Cozzens, ante,
9'72. But this inference will not be
drawn in opposition to the mani-
fest design. When a preliminary
contract is so worded as to indi-
cate that a particular clause is to
remain in force, it may modify or
control the operation of the deed ;
Backenslroas v. Stahler, 9 Casey,
251 ; Harbold v. Kuster, 8 Wriglit,
392. Willick v. Haine, 16 New
York, 532. The prospectus in H^ood
V. Dwarris, was a declaration of the
principle on which the insurance
company proposed to do business.
Being addressed to all the world,
and designed to attract customers,
those who dealt with them were
entitled to believe that they would
not deviate from the rule jvhich it
set forth, without announcing their
intention to make the change. If
the language of the policy admit-
ted of two interpretations, the
plaintiff might justly require that
to be preferred which accorded
with the rule laid down in the
prospectus. Strictly speaking, that
is untrue which is not consonant
with truth, but untrue is often
used in a harsher sense. A charge
of untruth is in the popular signi-
fication of the term equivalent to
an accusation of wilful falsehood
or deceit. The replication was
therefore good, as showing the
true meaning of the condition, and
that the plea should have averred
not only that the application for
insurance contained statements
which were untrue, but that the
plaintiff knew them to be false.

If the distinction on which pa-
rol evidence is received in Penn-
sylvania, be not airdrawn, it is

so thin, that the courts have not
been consistent in its application.
The judgment in Fulton v. Hood,
ante, cannot well be reconciled
with that in Miller v. Henderson,
10 S. & R. 290, where a surety
was allowed to prove that he had
been induced to execute the bond
by an assurance that he would not
be required to pay it.

It is well settled, under the gen-
eral course of decision, that bills
of exchange and promissory notes
obey the general rule that the tenor
of a written contract cannot be
varied by parol evidence, ante, and
such are also the eases in Penn-
sylvania ; Hill t. Gaw, 4 Barr,
493; Mason v. Graff, 11 Casey,
448; Anspach v. Bast, 2 P. F.
Smith, 356 ; but it is not easy to
discern from the language held in
these instances, whether the evi-
dence was excluded in view of the
greater sanctity of commercial in-
struments, or because it did not
sufBciently appear that the maker
executed the note on the faith of
the promise that it might be re-
newed if he did not find it conve-
nient to pay.

Whatever the rule may be under
other circumstances, it is well set-
tled that where written evidence
is required by statute, the case
will not be taken out of the statute
by a piromise to give a writing, nor
by a promise that a writing which
is given shall have a greater or
other effect than its terms import.
See Montacute v. Sir George Max-
well, 1 Peere Williams, 618. It
may be that a false representation
of the contents or operation of a
writing will authorize the interven-

WOOLLAM V. HEAEN.

975

tion of a chancellor to reform the
instrument, although the subject
matter is within the statute of
frauds. As against the person
who is guilty of the deceit, the
contract shall be as it is repre-
sented to be ; Tyson v. Fassmore,
2 Barr, 122. This depends on the
established principle that a statute
passed for the prevention of fraud
shall not be used as a means of
fraud. See Lincoln v. Wright, 4
De Gex & Jones, 16, 20, 22 ; Tay-
lor V. Luther, 2 Sumner, 219, 232.
But the violation of a promise is
not a fraud, unless the promise is
made with a fraudulent design ;
Montacute v. Maxwell; Batturs v.
Sellers, 6 Harris & Johnson,
249 ; Lambert v. Watson, lb. 252 ;
Wilson V. Watts, 9 Maryland ;
Walker v. Hill, 6 C. E. Green, 191.
It is well settled that a breach of
warranty does not authorize a re-
scission of the contract, or the re-
turn of the goods, unless the vendor
knew that the warranty was false.
So an unpaid vendor cannot re-
claim the goods on the ground
that he was induced to make the
sale by the confident assurance of
the purchaser, that the price would
be paid at the appointed time.
For a like reason the breach of a
parol promise will not justify the
intervention of a chancellor, even
where it disappoints the just ex-
pectations of one who has parted
with value or varied his position
for the worse on the faith of the
promise, unless the change is great
and irretrievable, and does not
admit of compensation ; Glass v.
Hulbert, 102 Mass. 24, 39 ; Purcell
V. Miner, 4 Wallace, 518.

The rule applies whether the
bill is filed to supply the want of
a writing, or to add a new term to
an instrument which has been exe-
cuted and delivered ; Glass v. Hul-
bert ; Batturs v. Sellers ; Wilson
V. Watts ; Walker v. Hill. No case
can well present a stronger claim
for relief than where the purchase-
money of land is paid in the confi-
dent belief that the vendor will ful-
fil his undertaking to give a deed
and yet it is well settled that the
vendee must seek redress by a suit
for money had and received, and
is not entitled to a decree for spe-
cific performance, because he is
presumed to know the law, and it
is his own folly to rely on the good
faith of the vendor instead of the
written proof which the statute
requires.

The rule in this regard was
clearly stated in Wilson v. Watts,
9 Maryland, 436. "Where there is
a written contract in relation to
land, and some of the terms or
provisions in the verbal agreement
of the parties are not included in
the writing, but omitted by design,
even on the express understanding
that such provisions shall be car-
ried into effect in the same man-
ner as if they constituted part of
the written instrument, if there is
no fraud, undue influence, surprise
or mistake, either in the making of
such contract, or in reducing it
to writing, parol evidence, will
not be admitted to enforce the
omitted provisions, or for the pur-
pose of contradicting, adding to
or varying the written instrument ;
although subsequently to its exe-
cution one of the parties has

976 SPECIFIC PKRFORMANCE. PAROL EVIDENCE.

fraudulently refused to comply
with the omitted provisions, aud
in open violation of good faith
and fair dealing, insists upon bis
right, under the statute of frauds,
to have tlie contract, as written,
carried into effect."

A false representation that a con-
veyance has been executed, or of its
purport, may require theapplicatiou
of a different principle. The ven-
dor may induce the vendee to pay
the price by stating untruly that a
deed has been placed in escrow, or
that it embraces land which is not
in point of fact conveyed. The
purchaser may rescind the con-
tract and recover back the money,
but this is an incomplete remedy
which may be frustrated by the
vendor's insolvency, and no full
or adequate redress can be afforded
without affecting him with a trust
ex maleficio. Such a case would
be an eminently proper one for
the applicalion of the dictum, at-
tributed to Lord Chancellor Parker
in Maxwell v. Montacute, 1 Prece-
dents in Chancery, 526, and re-
peated by Lord Thurlow in Whit-
church V. Bevis, 2 Bro. C. C. 559,
565, that " if there was an agree-
ment for reducing the contract into
writing, and that is prevented by
the fraud and practice of the other
party, equity would relieve." It
is accordiuglj' said by Mr. White,
in the notes to Leater v. Foxcraft,
in the first volume of this work,
" that a contract will be taken
out of the statute of frauds
where the provisions of the stat-
ute have not been complied
with, in consequence of the fraud
of the person against whom de-

cree for specific performance is
sought ; for which he cites. Max-
well V. Montacute, Prec. Ch. 526 ;
Whitchurch v. Beuis, 2 Bro. C.
C. 559, 565 ; Walker v. Walker, 2
Atkins, 98 ; Lincoln v. Wright, 4
De G. & Jo. 16, 22 ; Joynes v. Stal-
hani, 3 Atkins, 389." See Wolford
V. Herrington, 24 P. F. Smith,
311. The point was not, however,
determined in these instances.

The case of Maxwell v. Montacute
is accurately reported in 1 Peere
Williams, 618. The Lord Chancel-
lor said : '' In cases of fraud, equity
should relieve even against the
words of the statute. As if one
agreement in writing should be
proposed and drawn, and another
fraudulently and secretly brought
in and executed in lieu of the
former, in this or such like cases
of fraud equity would relieve, but
where there is no fraud, only a re-
l3'ing upon the honor, word or
promise of the defendant, the stat-
ute making those promises void
equity will not interfere ; nor were
the instructions given to counsel
for preparing the writing material,
since after they were drawn and
engrossed, tlie parties might refuse
to execute them. The bill averred,
that the defendant (plaintiff's hus-
band) before her intermarriage
with him did promise, that she
should enjoy all her own estate to
her separate use, that he had
agreed to execute writings to that
purpose, and had instructed coun-
sel to draw such writings, which
not been perfected, the defendant
desired this might not delay the
match, in regard his friends being
there it might shame him. But he

WOOLLAM V. HEAKN.

977

engaged, that upon liis honor, she
should have the same advantage of
the agreement as if it were in writ-
ing drawn in form hy counsel and
executed ; upon which the marriage
took efl'ect, and afterwards the
plaint '.ff wrote a letter to the de-
fendant, her husband, putting him
in mind of his promise to which
the defendant, her husband, wrote
an answer under his hand, express-
ing that he was always willing she
should enjoy her own fortune as if
sole, and that it should be at her
command." The statute was, not-
-vfithstanding, held to be well
pleaded to the relief and discovery ;
and the plea was also sustained in
Whitchurch v. Bevis, 2 Bro. C. C.
565.

These cases show, that a written
instrument will not be reformed on
the ground of fraud, except on
clear and certain proof; but much
less may be a defence where a
chancellor is asked to go beyond
the law, and specifically execute a
deed or contract, and it is then ad-
missible to show by any means
consistent with the ordinary rules
of evidence, that the complainant
took an undue advantage, or that
the writing does not accurately
represent the agreement. In
Joynes v. Statham, 3 Atkins, 388,
the plaintiff had taken advantage
of an illiterate man, by omitting a
material stipulation which had been
orally agreed to, from the writing,
which the plaintiff had undertaken
to prepare, and Lord Hardwicke
held, that whether the omission was
due to fraud, accident, or mistake,
it might equally be shown by parol
as a reason why the contract
VOL. II. — 62

should not be enforced without
rectifying the error. &o in Walker
V. Walker, 2 Atkins, 98, the parol
evidence was adduced to rebut an
equity by showing a failure of con-
sideration.

Some of the recent decisions
transcend these limits, and vir-
tually abrogate the Statute of
Frauds. This cannot, perhaps be
said of Lincoln v. Wright, 4 De
G. & Jones, 16, which went on the
three-fold ground of part perform-
ance ; that the purchase-money was
advanced for the complainant, and
therefore virtually paid by him ;
and that the defendant bought
from a mortgagee with a power of
sale, under an arrangement with
him and the mortgagor, that the
conveyance should be subject to
the equity of redemption, which
brought the case within the rule ;
once a mortgage always a mort-
gage. But Haigh v. Kaye, 1 L.
R. Ch. Ap. 413, does not admit of
such an explanation. It was there
held on the authority of Ghilders v.
Childers, 4 De G. & J. 482 ; and Da-
vies V. Otty, 85 Beavan, 208, that
where a deed purporting to be for a
valuable consideration, was made
on the faith of an oral promise or
agreement, that the grantee should
hold the land for the grantor, a
trust arose in favor of the latter
which equity would enforce. This
case is irreconcilable with Blodget
V. Hildreth, 103 Mass. 184, and
Walter V. Locke, 9 Gushing, 90,vol.
1, 355 ; but would be identical with
Murphy v. Hubert, Y Barr, 420, if
that decision had not been pro
nounced before the seventh section
of the Statute of Frauds was re-

978 aPECIPIC PERFORMANCE. — PAROL EVIDENCE.

enacted in Pennsylvania. A prom-
ise by a grantee to hold tiie land
for the grantor, or to re-convey to
him, is in effect a declaration of
trust, and directly within the mis-
chief which the statute was in-
tended to prevent. It cannot be
taken out of the statute by calling
the refusal to fulfil it a fraud. Such
a refusal is not a fraud unless the
trust exists, and this is the very
thing whicli the statute provides,
shall not be proved by parol,
vol. 1,358. In the absence of fraud,
mistake and undue influence, a
man ought not to gainsa}' his own
deed, or any writing which he has
deliberately executed. A grantor
who makes an absolute conveyance,
intending that the beneficial in-
terest shall remain in him, is guiltj'
of a gross foil}', or actuated by a
sinister design, and cannot reason-
ably ask that the rules of law should
be suspended to extricate him from
the situation in which he has vol-
untarily placed himself; Murpliy
V. Hubert, 4 Harris, 50. The case
is materially different, where the
bountj' of the donor is intercepted
by a promise to applj^ the prop-
ertj' to the use of a third person
whom he intends to benefit. The
latter has no opportunity to pro-
tect his interests, and a chancellor
may therefore justly intervene to
prevent the grantee from profiting
by an abuse of confidence.

It has accordingly been held)
that where a grant or bequest to a
volunteer, is procured through a
promise to hold the property in
whole or part for a third person
whom the giver desires to benefiti
a trust will arise ex malejicio, if

the trust be not fulfiled, vol. 1, 352.
notes to Dyer v. Dyer. " The de-
visee is charged with the trust, not
by reason merely of the oral prom-
ise, but because of the fact that
by means of such promise he had
induced the transfer of the prop-
erty to himself;'' Glass v. Hurlbert,
102 Mass. 24, 39. The law is well
settled to this effect, where the
promise is made to a testator, and
operates as a moving cause for the
execution of the will ; Russell v.
Jackson, 10 Hare, 206 ; Tee v.
Ferris, 2 Kay & J. 357 ; Jones v.
Badley, Law Rep. 3 Ch. 362, 363 ;
Tlf Gormick v. Grogan, Law Rep.
4 H. L. 82 ; and the principle is the
same where the gift is made by
deed. The point was, notwith-
standing, determined the other way
in Rohson v. Harwell and Wife, 6
Georgia, 589, 601, apparently be-
cause fraud was not specifically
charged in the bill.

It is well settled, that where the
answer admits that the writing
does not contain the whole agree-
ment, or that it is subject to con-
ditions or stipulations which are
not set forth, the door is thrown
open to parol evidence, and testi-
mony may be adduced on either
side ; Thomas v. IP Gormick, 9
Dana, 108 ; Moses v. Murgatroyd,
1 Johnson Ch. 119. But it is also
held, that such an admission will
not take the case out of the Stat-
ute of Frauds, or preclude the de-
fendant from relying on the want of
written evidence as a reason why
the contract should not be en-
forced. See Harris v. Knicker-
bocker, 5 Wend. 638 ; Hamilton v.
Jones, 3 Gill & Johnson, 127 ;

WOOLLAM V. HBARN.

979

Thompson v. Todd, I Peters, C.
C. R. 380; Ssmay v. Gorton, 18
Illinois, 483. This marks the dis-
tinction between the rule of evi-
dence introduced by the statute,
and that prevailing at common law,
which does not preclude a chan-
cellor from giving effect to a parol
variation alleged in the bill, and
confessed in the answer, although
the admission is accompanied by
a demand that the complainant
shall be compelled to abide by the
letter of the instrument. See
Ghetwood V. Brittan, 1 Green, 438.
" It is now settled, that if the
defendant admits the agreement
and insists on the statute, he can
protect himself from a decree for
specific performance, notwith-
standing his admission ; but if
he admits the agreement, but
neither pleads the statute nor in-
sists on it in liis answer, he is
deemed to have renounced the
benefit of it (6 Ves. 39.) If the
bill states generally a contract
which the law requires to be in
writing, the court will presume
that it is made with the requisite
formalities to give it validity
until the contrary appears. The
defendant, in answering, may
either plead that the contract was
not in writing, or insist upon that
fact in his answer. If he meets
the allegation of a contract in the
bill with a general denial, and the
complainant is put to his proof to
establish it, he must show a writ-
ten contract, and if he does not,
the evidence to establish the issue
will be adjudged incompetent,
Gozine v. Graham, 2 Paige, 17T,
1 Marshall's Kentucky R. 43T.

But if the bill set up an agree-
ment, admitting it to be by parol,
or which shall in proof turn out
to be by parol, the defendant can-
not avail himself of the benefit of
the statute, provided the bill con-
tains along with the argreement
matter sufficient to avoid the bar
created by the statute." Harris
V. Knickerbocker, 5 Wend. 638,
643.

It has been seen that the
rule which excludes oral evidence
to vary or contradict a written
contract, is founded on the natural
presumption that the parties would
not have put their hands to the
instrument if it did not express the
contract, ante, 944. The rule is
therefore inapplicable when the
writing is not drawn in accordance
with the intention of the parties,
and the complainant signs in
ignorance of the mistake. Parol
evidence is consequently admis-
sible to prove the mistake, and
show in what particulars the con-
tract as reduced to writing, devi-
ates from that actually made ;
Wurzburger v. lleric, 20 Louisi-
ana, 415; Chew v. Gillespie, 6 P.
F. Smith, 308 ; Wyche v. Greetie,
16 Georgia, 49, 50 ; Trick v. Ful-
ton, 3 Gratten, 193 ; Mattingly v.
Speak, 4 Bush (Kj'.), 316 ; 3Iills
V. Lockwood, 42 111. Ill ; McClos-
key V. McGormick, 44 Id. 336;
Gump^s Appeal, 15 P. F. Smith,
476; Bradford v. The Bank, 13
Howard, 57 ; M'Gann v. Letcher,
8 B. Monroe, 320; Galverly v.
Williams, 1 Ves. 206 ; Willan v.
Willan, 16 Id. 72 ; Bellas v. Stone,
14 New Hampshire, 175 ; Brown
V. Brown, 8 Leigh, 1 ; Blair v

930 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

M'DonneU, 1 Halsted Eq. 327;
Chamberlain v. Thompson, 10
Conn. 243 ; Wooden v. Haviland,
18 Id. JOl ; Langdon v. Keith, 9
Yermont, 299 ; Gower v. Sterner,
2 Wharton, 75 ; Hamilton v. Ass-
lin, 14 S. & R. 448 ; Lauckner v.
Bex, 8 Harris, 464; Shively v.
PFete^,, 2 Oregon, 288 ; Kuchen-
beiser v. Bechert, 41 Illinois, 172
C/ear(/ v. Babcock, Ih. 271; Jfc-
Donald v. Starkey, 42 Id.- 472
Stowe V. iZaZZ, 11 Alabama, 557
Larkins v. 5iWZ(?, 21 Id. 252
Lauderdale v. Sallock, 7 Smedes
& Marshall, 622 ; Boss v. Wi'Zsow,
lb. 753; Bradford v. T/ie Union
Bank of Tennessee, 13 Howard,
57, 66 ; Firmstone v. Z)e Camp, 2
C. E. Green, 317 ; Waldron v.
Letson, 2 M'Carter, 126 ; see vol.
1, 32.

This branch of jurisdiction re-
quires a nice discrimination, and
will not be exercised unless the
mistake is established be3rond a
reasonable doubt ; Nevius v. Dun-
lap, 33 New York, 676 ; Harris v.
Buce, 5 Gill R. 212; Selby v.
Givins, 12 Illinois, 69.

The burden of proof is through-
out on the complainant, who must
rebut the presumption that the
writing speaks the final agreement,
by the clearest and most satisfac-
tory evidence. It must not only ap-
pear that the parties entertained
a different intention in the first in-
stance, but that it was not changed
at or before the execution of
the instrument, for otherwise the
legal and natural inference is that
it was laid aside for that expressed
in the writing ; Stine v. Shirk, 1
W. & S. 195. There should more-

over be something to amend by
That the writing deviates from
the intention of the parties, may
be a reason for setting it aside,
but will not justifj' a conjectural
emendation, or the substitution of
an agreement which they are not
proved to have made ; Lyman v.
27ie United Ins. Co. 2 Johnson &
Ch. 630 ; Wheelton v. Hardisty, 8
Ellis. &B1. 232, 256 ; HalU. Clagett,
2 Marjdand Ch.l53 ; Bhilpot v. Elli-
ott, 4 Id. 273 ; Willan v. Willan,
14 Vesey ; Hunt v. Bousmanier, 1
Peters ; Durant v. Bacot, 2 Mc-
Carter, N. J. 411; "It is clear
that a person who seeks to rectify
a deed on the ground of mistake,
must be required to establish in
the clearest and most satisfactory
manner, that the alleged intention
to which he desires it to be made
conformable, continued concur-
rently in the minds of all parties
down to the time of its execution,
and also must be able to show ex-
actly and precisely the form to
which the deed ought to be
brought ;" Fowler v. Fowler, 4 De
G. & J. 265 ; Tesson v. Atlantic
Ins. Co., 40 Missouri, 33 ; Beebe
V. Young, 14 Mich. 136.

The dicta in Foicler v. Fowler,
would seem to go too far in
requiring both parties to continue
of the same mind down to the exe-
cution of the instrument. Snyder v.
May, 7 Harris, 239. If two persons
come to terms, and agree that the
contract shall be reduced to writ-
ing, and one of them frames the
instrument differently without the
knowledge of the other, who signs
in ignorance of the change, the
latter is entitled to have the varia-

WOOLLAM V. HEARN.

981

tion rectified. And the case is
substantially the same where one
of the parties knows that the
scrivener has missdrawn the deed
and does not inform the other.
Rider Y. Powel, 28 New York, 310 ;
Matthews v. Terwiliger, 3 Barb. 50.
The rule is accurately given in
Tesson v. The Atlantic M. Ins. Co.,
40 Missouri, 33, 36. " A court of
equity has jurisdiction to reform
a policj' of insurance or other
written contract upon parol evi-
dence, when the agreement really
made by both parties has not been
correctly incorporated into the in-
strument, through accident or mis-
take in the framing of it, but
both the agreement and the mis-
take must be made out b3' the
clearest evidence according to the
understanding of both parties as
to what the contract was intended
to be, and upon testimony entirely
exact and satisfactory, and it must,
appear that the mistake consisted
in not drawing the instrument ac-
cording to the agreement that was
made; Andrews v. Essex Fire &
Mar. Lis. Go.., 2 Mason, 6; 1 Sto.
Eq. §§ IST-ei ; Adams' Eq. IVl ;

1 Phil. Ins. 42; 1 Arnold Ins.
51 ; Delaware Ins. Go. v. Hogan,

2 Wasli. C. C. 4 ; Lyman v. U. S.
Inx. Go., 2 J. Ch. 630; Keissel-
hrach v. Liuingston, 4 J. Ch. 144;
1 Duer on Ins. 11. The court
cannot supply an agreement that
was never made ; Graves v. Boston
Ins. Go., 2 Cranch, 419."

It has been said that the mis-
take must be mutual ; Cooper v.
The Farmer's Ins. Co., 14 Wright,
299; Lyman v. TJie United Ins.
Co. 17 Johnson, 213 ; Nevias v.

Dunlap, 33 New York, 676 ;
Wemple v. Stuart, 22 Barb. 152 ;
Laiiier v. Wyman, 5 Robert-
son, 147 ; but it is more accurate to
say that there must be a mutual
agreement from which the writing
deviates, ante. See Rider y. Powell,
28 New York, 310; Matthews v.
Terwiliger, 3 Barb. 50. That one of
the parties to a written contract
labored under a misapprehension
of its terms or effect, may show
that they did not come to an agree-
ment, but will not authorize a
chancellor to make an agreement
for them ; see Gillespie v. Moore, 2
Johnson Ch. 595 ; Sawyer v. How.y,
3 Allen, 331 ; Tesson v. The At-
lantic M. Ins. Co., 40 Missouri, 33;
The Woodbury Savings Bank v.
The Ins. Co., 31 Conn. 517, vol.
1, 33, notes to Lord Glenorchy v.
BosviUe. " If the court were to
reform tlie writing to make it ac-
cord with t.he intent of one party
only to the agreement, who avers
and proves tliat he signed it as
it was written by mistake, when it
accurately expressed the agree-
ment as understood by the other
party, the writing when so al-
tered would be just as far from
expressing the agreement as it was
before, and the court would be en-
gaged in the singular office of doing
right to one party at the cost of
a precisely equal wrong to the
other; Dimondv. The Providence
R. R. Co., 5 Rhode Island, 130,
135 ; Harkle v. The Royal Ex-
change Ins. Co., 1 Vesey, Sen.
317 ; The Marquis of Townshend
V. Stangroom."

It follows that a chancellor will
not intervene at the instance of

982 SPECIFIC PERFORMANCE. — BAROL EVIDENCE.

one of the parties, to make the in-
strument conform to an intention
which he may have entertained,
but which was not common to
both ; Toivnahend v. Slangroom, 6
Vesey, 328, 333 ; Coffing et al. v.
Taylor, 16 111. R. 451. If the
owner of two adjacent houses sells
one of them to a purchaser, who
believes that he is buj'ing the
other, the contract may be re-
scinded, but it would be obviously
unjust to alter the deed in con-
formity with the intention of the
purchaser. But the mere circum-
stance that one party is cognizant
of the mistake and fails to apprise
the other, makes for rather than
against the right of the latter to
equitable relief, as indicating the
presence of fraud ; see Wells v.
rates, 44 New York, 552,aj2te, 981.
A vendor who conveys an unim-
proved lot knowing that the pur-
chaser supposes that he is acquir-
ing the wh:irf or buildings, which
are his object in buying, but
which really stand on an adjacent
lot, is chargeable with a conceal-
ment at variance with good faith,
and cannot allege that the mistake
was not mutual, as a reason why
a chancellor should not rectify the
error ; Wiswall v. Hall, 3 Paige,
313; De Peyster v. Haahrouch, 1
Kernan, 581.

The tenor of the instrument may
show that it should be reformed,
and in what way, without the aid
of parol evidence. Accordingly,
where a grant was made to trus-
tees, their successors and assigns
forever, with a covenant for fur-
ther assurance to them and their
heirs, the grantor was directed to

execute anotlier deed, in which
heirs should be instituted for suc-
cessors ; Showman v. Miller, 6
Maryland, 480.

Where the mistake consists in
the omission of a clause which was
to have been inserted, or the intro-
duction of a clause which forms
no part of the agreement, the juris-
diction of equity is clear and well
defined. But there is more doubt
as to the power of a chancellor to
reform an instrument, which fails
to accord with the intention of the
parties, in consequence of a misap-
prehension of thelegal import of the
terms employed, or of their effect on
an operation as a whole. Here the
complaint is not that the words are
not such as the parties designed to
use, but that the words which they
used did not express their meaning.
A case of this description might be
presented by a bill alleging that a
grant had been made to one for
life, with remainder to his heirs, in
ignorance of the rule in Shelly's
Case, or that a conveyance which
does not contain the term " heirs,"
was designed to pass the fee ;
see Clayton v. Freed, 1.0 Ohio, N.
S. 544. Agreeably to the weight of
authoritj', relief cannot be afforded
on such grounds, unless there are
peculiar circumstances to exempt
the case from the general rule.
Ruffner v. McConnell, 17 Illinois,
212; Selby v. Geines, 12 Id. 69 ;
Harris v. Beece, 5 Gil. R. 212;
Wood V. Price, 46 111. 439 ; Adams
V. Robertson, 31 111. 45 ; The Bank
V. Daniel,!^ Peters, 32 ; , MiUis v.
Robertson, 25 Vermont, 608 ; Bent-
ley V. Whittemore, 3 C. E. Green,
366; Hauraltyy. Warren, lb, 124.

WOOLLAM V. HEAKN,

983

If, said Black, C. J., in Light v.
Light, 9 Harris, .40T ; " contracts
were binding only on those who
know what construction the courts
would put upon them, very few
would stand. No system of juris-
prudence conld be administered for
a year on this principle without
falling to pieces. All codes there-
fore have adopted the maxim ig-
norantia legis neminem e.xcusat."
It is accordingly a general though
not invariable rule, that in the ab-
sence of fraud and undue influ-
ence, one who executes an instru-
ment with an opportunitj' for
knowing what it contains, cannot
rely on an alleged misap[)rehension
of its legal effect, as a ground of
eqiiitalile relief; Lyon v. Richard-
son, 2 Johnson Ch. 51 ; Schmidt
V Labutut, 1 Speer Equity, 421 ;
Doio V. Garter, lb. 414 ; Garwood
V. Eld7-idge's Ad^r. 1 Green, Ch.
145 ; Wheaton v. Wheaton, 9 Conn.
96 ; HuntY.Rousmaniere, 8 Whea-
ton, 174; 1 Peters, 1 ; Watkina v.
Stocket, 6 Harris & Johnson, 445 ;
McEldery v. Shipley, 2 Maryland,
35 ; Showman v. Miller, 6 Id. 419 ;
Dupree v. Thompson, 4 Bai'bour,
279 ; Leavett v. Palmer, 3 Com-
stock, 19; Rankin V. Mortimore, 1
Watts, 372 ; Martin v. Hamlin, 18
Michigan, 354 ; Dill v. Shahan, 25
Alabama, 702.

It would nevertheless be erro-
neous to suppose that where the
effeL-t of the instrument is ac-
knowledged to have been mis-
understood by both parties, a court
of equity is incapable of affording
relief; Hunt v. Rousmanier, 8
Wheaton, 174, 216. See Snyder
V. May, 7 Harris, 235, 239 ; Jones

V. Monroe, 32 Georgia, 181. A
chancellor will not reform an in-
strument which expresses the true
agreement between the parties, al-
though they may have mistaken
the legal consequences of the agree-
ment. But an instrument which
does not speak the real agreement,
maybe reformed whether the error
arose from the ignorance or want
of skill of tlie draftsman, or
from any other cause ; Larkins v.
Biddle, 21 Ala. 252. See Glopton
V. Martin, 11 Ala. 187 ; Stone v.
Hale, 17 Ala. 557; Huss v. Mor-
ris, 13 P. F. Smith, 367. " If it
were stipulated in an agreement
for the sale of land, that the ven-
dor should enter into certain cove-
nants for title, a mistake as to
the legal effect of the covenants
would not authorize a reformation
of the agreement. But if the deed
were drawn by one party and ac-
cepted by the other under a mista-
ken impression that its terms were
sufficient to create the covenants
stipulated for, it might be reformed
in accordance with the agreement ;''
Larkins v. Biddle.

In Hunt V. Rousmanier, 8
Wheaton, 174 ; 1 Peters, 1 ; it was
agreed that Hunt should lend
Rousmanier $2,150, on the secu-
rity of the ship Nereus. The par-
ties called on an attorney, Hazard,
for advice. He informed them that
the object might be effected through
a mortgage, a bill of sale, or a
power of attorney. A mortgage
or bill of sale would require a
change in the title papers and
registry, and it would also be re-
quisite that Hunt should take pos-
session of the vessel when it ar-

984 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

rived. A power of attorney to
sell the vessel and apply tl)e pro-
ceeds to the repayment of the loan,
■would not be attended with these
inconveniences, and would be as
good and indefeasible a securitj' as
a mortgage. Hunt acconlingly de-
clined the mortgage which Rouse-
manier had offered, and requested
Hazard to prepare a power of at-
torney, whicli Rousmaniei' execu-
ted. Rousmanier died not long
after, insolvent, and his executors
contested the right of Hunt to sell
the vessel under the power, con-
tending that it had been revoked
by Rousmanier's death. The
question was argued before the
Supreme Coui-t of tlie United
States, which decided, that al-
though the power was irrevocable
during the donor's life, it expired
at his death, because no one could
act in the name of, or under an
authority given b}' a person who
had ceased to exist. A bill was
then filed alleging that a power of
attorney had been taken instead of
a mortgage by mistake, and pray-
ing that Rousmanier's executors
should be compelled to join in a
sale under the power.

The court held that a chancellor
may reform an instrument which
fails to expi-ess the intention of the
j)arties as fixed by consent, or de-
clared in their instructions to the
scrivener. Such relief might be
afforded, whether the error was
due to oversight in leaving out or
inserting a clause or term, or arose
from an erroneous impression of
the legal effect of what was written.
But that a chancellor could not
substitute an instrument for that

selected by the parties, although
there might be reason for believing
that they would have made a diff-
erent choice if they had been cor-
rectly informed as to the law. If
Hunt and Rousmanier had, in the
case under consideration, directed
Hazard to prepare a security which
should be indefeasible except by
pa3rment, and he had drawn a
power of attorney, there would
have been more ground for the re-
lief asked in the bill. What the
evidence actually disclosed was
that Hunt had fixed upon a power
of attorney after mature delibera-
tion, and although it might be in-
ferred, that he would have taken a
mortgage if he had been aware
that tlie power would be revoked
by the donor's death, this could
not be known with the certainty re-
quisite for judicial action. The
bill was accordingly dismissed.

It results from this decision, and
from the dicta of Lord Eldon in
The Marquis of Townshend v.
Stangroom, 6 Vesey, 228, 232, that
a contract may be rectified in ac-
cordance with the intention of the
parties, but not for the purpose of
making it accord with an intention
which it is alleged they would
have had if better informed. So
an accidental omission may be sup-
plied ; but a stipulation which
has been designedly omitted, will
not be inserted, on the ground that
it would have been introduced if
the parties had known the law.

In commenting on Hunt v. Rous-
manier, Ch. J. Gibson observed,
that relief might have been afforded
under another head of equity juris-
diction, the accident of Rousma-

WOOLLAM V. HBARN.

985

nier's death, which prevented the
instrument from having the effect
which the parties anticipated and
designed ; Tyson v. Passmore, 2
Barr, 125.

It is well settled in accordance
with the principles enunciated in
Bunt V. Eousmanier, that courts
of equity are not limited in afford-
ing relief to mistakes of fact ; and
that a mistal^e in the legal effect
of a description in a deed, or in
the use of technical language, may-
be relieved against. Canedy v.
Marcy, 13 Gray, 373-3TT ; Gilles-
pie V. Moon, 2 Johns. Ch. 596;
Stedivell v. Anderson, 21 Conn.
139 ; Oliver v. Mutual Commer-
cial Marine Ins. Co., 2 Curt. C.
C. 299; Cook v. Husbands, 11
Maryland R. 492 ; Springs v. ITar-
ven, 3 Jones Eq. 96 ; Young v.
Miller, 10 Ohio, 85 ; IfNaugh-
ten V. Partridge, 11 Id. 223.

In Clayton v. Freed, 10 Ohio,
N. S. 544, a husband bought and
paid for land, and desired that the
title should be conveyed to his
wife for her life, and after her
death to her children, but the
grant was accidentally or igno-
rantly made to the wife and her
heirs, and the court reformed the
deed on clear proof of the mistake.

In like manner where through
the ignorance of the conveyancer,
the deed was so worded as to ex-
clude the vendor's lien, which the
parties had instructed him to
preserve, relief was granted, al-
though the mistake was clearly
one of law. Worley v. Tuggle, 4
Bush, 168.

The criterion in every case, is
the intention of the parties at the

time of executing the instrument,
and a deed drawn in accordance
with what they then designed, will
not be reformed, because there is
reason to suppose that they would
have had a different intention, if
the effect had been present to their
minds at the time of executing the
deed, vol. 1, 33; notes to Lord
Glenorchy v. Bosville, Hunt v.
Rousemanier. In Moser v. Lihin-
guth, 2 Rawle, 428, the court re-
fused to make a joint bond, several,
against the executors of a deceased
surety, because it did not appear
that the parties contemplated or
meant to provide for the contin-
genej' of his death, although the
intention was to bind him abso-
lutely.

There is an obvious difference
between an allegation that the
complainant mistook the legal
effect of the agreement, and that
he entered into the agreement
under a mistalien belief in the ex-
istence of an antecedent legal right
or obligation ; see The Marquis of
Townshend v. Stangroom, 6 Vesey,
328, 332 ; and it has been said,
that relief may be given on the
latter ground, though not on the
former. Gross v. Leber, 1 1 Wright,
520. The case of Lansdown v.
Lansdown, Moseley, 264, may
be explained by this distinction ;
and it was applied in Gross v.
Leber, on behalf of one who igno-
rantly gave his bond for a debt
which he did not owe. See Cabot
V. Hoskins, 3 Pick. 83.

It is immaterial as it regards
the application of this principle,
that the agreement purports to be
a settlement of a demand or con-

986 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

trovers}', if the right involved
does not admit of a reasonable
doubt. The object of a compro-
mise, is to avoid the risk and un-
certainty incident to litigation. If
the controversy can only be deter-
mined in one way, there is no risk,
and the foundation of the agree-
ment fails. This is equally true,
whether the mistake is one of fact
or law. The powers of a chan-
cellor reach far enough, to afford
relief for a failure of considera-
tion, from whatever cause. The
party against whom such a bill is
filed, is in this dilemma ; if he
says that he knew the law, his con
duct is irreconcilable with good
faith ; if he says that he was igno-
rant of the law, the complainant
ma}' malie a similar allegation
with greater probability. The bet-
ter opinion, therefore, is that a
court of equity may relieve one
who through misapprehension of
a well defined legal principle, parts
with the whole or a part of what
is indisputably his own, under the
name of a compromise. Naylor
V. Wynch, 1 Simons & Stewart,
555. See Brigham v. Brigham, 1
Yesey, 126.

The authority of Lansdown v.
Lanxdown. was, nevertheless, de-
nied in M'Anich v. Loughlin, 1
Harris, 3Y1, and it was said
that parties who deliberately
put their hands to an instru-
ment, are bound to ascertain
the facts, and will be presumed to
have been acquainted with the law ;
and such is unquestionably the
rule where the right is doubtful,
and not merely disputed. In this
instance suit was brought on a

covenant to pay a yearly sum in
consideration of the relinquish-
ment of a right of dower which
had been already lost through the
widow's election to take under the
will of her late husband, and the
mistaken belief of the covenan-
tor, that the right still existed, was
held not to be a ground for equit-
able relief.

In considering the authorities,
it should be remembered that there
is a marked distinction between
reforming a contract and setting
it aside. An agreement founded
upon a mistake of law, may
be rescinded, because the mis-
take is a fact, although it re-
lates to a principle. See Lar-
kins V. Biddle, 21 Ala. 252, 256 ;
Light V. Light, 9 Harris, 407, 412.
The minds of the parties do not
meet on a common basis, or
rather the basis on which they
meet fails, and tlie contract with
it. Such was the case of Lans-
down V. Lansdown, Mosley, 264,
where the complainant had agreed
to shai-e the land which had de-
scended to him from an ancestor,
under an unfounded doubt of
his right as heir at law. So in
WiUan V. Willan, 16 Vesey, 12, an
agreement for a lease was ordered
to be delivered up on the ground
of surprise, it appearing that the
legal effect of the instrument was
not understood by either party.
But to justify the reformation of a
writing it must not only appear
that it does not express the agree-
ment, but that the parties came to
an agreement, which would have
been set forth in the writing, but
for the misapprehension of the

WOOLLAM V- HEARN.

937

person, by whom it was prepared.
If this is shown with sufficient
clearness, the instrument may be
reformed, whether the error is one
of fact or law. Smith v. Jordan,
13 Minnesota, 264.

It is said in Lawrence v. Beau-
Men, 2 Bailey, 623, that ignorance
of the law differs from mistake of
law, in this, that the former is
passive and unreasoning, while the
latter assumes to know what it
does not, and affords palpable
evidence of its existence, Loiondes
V. Chisholm, 2 McCord, 455 ; Hop-
kins V. Marzack, 1 Hill Ch. 250.
This distinction was criticised in
Champlin v. Layton, 18 Wend.
40t, 416 ; but it is so far just, that
where it appears from the declara-
tions on either side, that an
unfounded belief in the existence
of a right, is the moving cause for
the execution of the contract, it
is invalid, and may be set aside.

The reformation of a writing on
the ground of a mistake of law, is
a transcendent exercise of judicial
power, requiring the utmost care
and deliberation. The complain-
ant asks that he may not be bound
by words, which he has made his
own, by putting his hand to the
instrument. He must therefore,
show how he came to adopt langu-
age, which did not express his
meaning. As between two parties,
one of whom maintains, that a
writing which they executed con-
veys their intention, while the
other contends that it does not,
the burden of proof is obviously on
the latter. The explanation should
be so reasonable, probable and
natural, as to satisfy the mind of

the existence of the mistake, and
that it can be rectified without
injustice. It has been truly said
that one who alleges that he un-
derstood that a note payable on
demand, or in a year from date,
was to be renewed indefinitely, or
delivered up unpaid at the death
of the promisee, ought not to be
believed on any amount of testi-
mony ; Wheaton v. Wheaton, 9
Conn. 96. The proof should more-
over be such as to exclude the in-
ference, that the complainant knew
that the instrument did not con-
form to the true agreement, and yet
authenticated it by hia signature.
Lord Irnham \. Child, 2 Brown C
C. 219, ante, 964. Courts of Equity
do not sit for the protection of men,
who, having the full posession of
their faculties, deliberately express
themselves in language which does
not convey their meaning, a??te,94 4 ;
nor will they readily intervene on
behalf of one who seeks relief
against the consequence of his
own negligence or inadvertence,
ante, 959 ; Wood v. Patterson, 4
Maryland Ch. 355 ; Taylor v. Fleet,
4 Barb. 95 ; Scott v. Fink, 53 Id.
553; Gustardv. Custard, 'i^H&Ko.s,
49. See Dupree v. McDonald,
4 Dessaussure, 209 ; McMahon
V. Spangler, 4 Randolph, 51 ; De-
mond V. The Ins. Co. 5 R. I. 130.
These difficulties do not arise
where an instrument drawn in pur-
suance of a prior written contract,
is so worded as to frustrate the
intention which it was meant to
effectuate, and a chancellor may
then unhesitatingly make the in-
strument conform to the agree-
ment, vol. 1, notes to Lord Glen-

988 SPECIFIC PERFORMANCE. PAROIi EVIDENCE.

orch V. Bosville ; Key v. Simpson,
6 Iredell Eq. 452.

An erroneous description or
designation of the subject-matter
of the contract, may be reformed
whether the mistake originated
with the parties, or with the person
whom thejr emplo3'ed to draft the
instrument. Under these circum-
stances, the error does not consist
in a misapprehension of the mean-
ing or effect of the words em-
ployed, but in supposing that they
are applicable to the facts. See
Bradford v. The Union Bank, 13
Howard, 55. If a tract of land
is described, as being in a township
where it is not really situate, if it
be designated by a wrong number,
or if the metes and bounds are in-
correctljr stated in the deed, so as
to exclude a part of the tract
which was to have been conveyed,
or include what should have been
excluded, a chancellor may rectify
the instrument, although the scrive-
ner adhered literally to his instruc-
tions, and the mistake arose from
the vendor's lapse of memory or
want of accurate infoi'mation. See
Winnipisogee, &c., Go. v. Perley,
46, New Hamp. 83; Baines v.
Galloway, 2T Texas, 618 ; Gil.
lespie V. Moore, 2 Johnson's Ch-
580 ; Wliite y. Wilson, 6 Blackford,
448; Young y. Coleman, 43; Mis-
souri, lYO ; Stewart v. Brand, 23
Iowa, 227 ; Wiswall v. Hall, 3 Paige,
313. In like manner where the de-
fendant agreed to sell all the pine
logs cut bjr them, during the winter,
and marked with a particular
brand, and it appeared the logs
in question were marked with
a different brand, the agreement

was reformed in accordance with the
truth. Smith v. Jar den, 13 Min-
nesota, 264.

Whatever doubt may exist in
other cases, it is clear that one
who induces the execution of an
instrument by a false or mistaken
statement of its legal effect or
operation, should not be allowed
to take advantage of the error
which he has contributed to pro-
duce. Ghamplin v. Laytin, 18
Wend. 401, 422. It is accordingly
established, that chancery may
afford relief under these circum-
stances, whether the mis-statement
was innocent, or prompted by a wish
to deceive ; and although the com-
plainant was acquainted with the
contents of the instrument. See
Light V. Light, 9 Harris, 407, 412 ;
Tyson v. Passmore, 2 Barr, 122;
Snyder v. May, 1 Harris, 235,
238 ; Be Peyster v. Easbrook, 1
Kernan, 58Y ; Bider v. Bowel, 28
New York, 510; Broadwell v.
Broadwell, 1 Gillman, 899, 608;
Gathcart v. Bohinson, 5 Peters,
264, 276, ante ; Phillips v. Eollis-
tor, 2 Coldwell, 269 ; Goger's
Ex'ors y. WGee, 2 Bibb. 411.
Fraud and mistake are here so
much alike in their effects, that it is
difficult to draw the line, but there
is this difference, that while fraud
may justify the rescission of the
contract, it should not be set aside
for mistake, unless reformation is
impracticable.

The misrepresentation need not
be express, and maj^ be implied
from the conduct of the defendant
in undertaking to pen the instru-
ment, and then presenting it for exe-
cution, as if prepared in conformity

WOOLLAM V. HEARN,

989

with the mutual design, ante, 956,
982. In Snyder Y. May,^^ Gundrum,
one of the parties to the lease, was
intrusted by the other with the
business of reducing the contract
to writing. He knew that the agree-
ment was for $300 per year, and
he undertook to reduce that agree-
ment to writing. He produced
the instrument given in evidence,
as a writing which fully expressed
the intention of the parties. What
was this but the strongest repre-
sentation that the legal efi'ect of
the instrument was in conformity
to the actual agreement ? If there
be any truth in the aphorism, that
' actions speak louder than words,'
the act of Gundrum was a distinct
representation, that the writing
was in exact conformity to the un-
derstanding of the parties, and
that the Latin prefix to the word
annual, which he had introduced
either through mistake or fraud,
had not the legal e£fect of binding
the opposite party to pay double
the sum actually agreed to be paid.
Gundrum, as to this, was the agent
of the parties, and he was bouud
to act in good faith."

The equity maybe enforced, not
only between the parties, but
against judgment creditors and
purchasers with notice. See Sim-
mons V. North, 3 Smedes & Mar-
shall, 61 ; Goverrieur v. Titus, 1
Edwards Ch. 480 ; Cady v. Potter,
55 Barb. 463 ; White v. Wilson, 6
Blackford, 448 ; Whitehead v.
Brown, 18 Alabama, 682 ; Good-
win V. Younge, 22 Id. 553. In
Moale V. Buchanan, 11 Gill &
Johnson, 314 ; a deed executed in
pursuance of a parol contract, to

convey two lots as security for a
pre-existing debt, was reformed,
by including one of the lots which
had been omitted by mistake ; and
a similar decree was made in
Gouverneur v. Titus, 1 Edwards,
477, 6 Paige, 347 ; although the
debt was antecedent, and the com-
plainant had not given time or
changed liis position for the worse
in any respect, on the faith of the
mortgage.

A deed will not be reformed as
against a bona fide purchaser, in
favor of a complainant who has not
parted with value, where the effect
will be to prejudice one who has ;
see Williams v. Hatch, 38 Ala-
bama, 338 ; Young v. Coleman, 43
Missouri, 179 ; see The U. S. v.
Monroe, 5 Mason, 572. For a like
reason a chancellor will not cor-
rect a mistake at the instance of
one judgment creditor to the ex-
clusion of another ; see Knight v.
Bunn, 7 Iredell Eq. 77 ; Smith v.
Turrentine, 2 Jones Eq. 253 ;
nor where a particular creditor
seeks relief against general credit-
ors whose equity is equal to his
own and who have the law ; Ander-
son V. Tydings, 8 Mar^'land, 427 ;
Hunt V. Eousmanier. A bill filed
by a donee against the donor to
reform the instrument of gift falls
within the same principle ; notes
to Lord Glenorchy v. Bosville,
vol. 1 ; Henderson v. Dickey, 35
Missouri, 126. A voluntary deed
may, notwithstanding, be refcrmed
after the death of the donor, or
where relief is sought during his
life against one claiming under
him as a volunteer or purchaser
with notice; Huss v. Norris, 13

990 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

P. F. Smith, 36Y, notes to Ellison
V. Ellison, vol. 1, 33.

In Sunt V. Rousmanier, Wash-
ington, J., said that " where the
parties npoii deliberation and ad-
vice, reject one species of secu-
rity, and agree to select another,
undera misapprehension of the law
as to the nature of the security so
selected, a court of equity will not,
on the ground of such misappre-
hension, and the insufficiency of
such security, in consequence of a
subsequent event, not foreseen, or
perhaps thought of, direct a new
security of a different character
to be given, or decree that to be
done which the parties supposed
would have been effected by the
instrument, which was finally
agreed upon.

" If the court would not interfere
in such a case generally, much less
would it do so in favor of one
creditor against the general credi-
tors of an insolvent estate, whose
equity is at least equal to that of
the party seeking to obtain a pre-
ference, and who in point of law
stand upon the same ground with
himself."

This language was cited and re-
lied on in Anderson v. Tydings, 8
Marj'land, 427, and is no doubt
just when viewed with reference to
the matter in hand ; but it is not-
withstanding established under the
authorities, that if the equity of a
mortgagee or otlier creditor is good
against the debtor, it will be good
against one claiming under him as
a judgment creditor, or purchaser
with notice. A mortgage given to
secure future advances that have
not been made, or to indemnify a

surety who has sustained no actual ^
injury, presents a different case, ,
and a chancellor will not rectify
such an instrument to the preju-
dice of intervening incumbrancers.

A court of equity will not suf-
fer one who agrees to be aiuswer-
able for another, to escape liability
because the writing is erroneously
worded and does not express the
obligation ; Butler v. Durham, 3
Iredell, Ch. 589 ; Newcomer v.
Kline, 11 Gill & Johnson, 45T. It
has been said that to reform a
writing against a surety who does
not share in the consideration, and
is chargeable solely on the letter
of the contract, the proof must be
clear beyond the shadow of a
doubt, and such unquestionably is •
the rule where the allegation is
that the parties were ignorant of
the legal effect of the instrument
and not that they mistook its
terms ; Moser v. Libenguth, 2
Rawle, 428. A writing is more-
over requisite to the validity of a
promise for the debt, default, or
miscarriage of another, and it is
questionable whether such an in-
strument can be reformed on oral
proof of mistake or fraud, post,
but this objection was overruled in
Smith V. Allen, Saxton, 43.

The reformation of an agreement
under seal in accordance with the
true intention of the parties as
disclosed by parol evidence, does
not vary Its character, ante, 960. It
is still a specialty, and may be de-
clared on as such in Pennsylvania
where the courts administer equity
through the forms of the common
law; Sterner V. Gower, 2 Wharton,
■75. But a cotemporaneous or sub-

WOOLLAM V. HEARN.

991

sequent parol alteration reduces
the whole contract to parol, post.
It being thus established, that a
chancellor may receive parol
evidence that a deed or other in-
strument has been so worded
through fraud or mistake as not to
express the agreement of the par-
ties, it follows that he maj' make
the deed conform to the agreement,
or what comes to the same thing,
carrj' the agreement into effect as
if it had been set forth in the deed.
This is a mere application of the
principle that what ought, to have
been done, may be considered as
done, for the sake of relieving one
who is injured by the omission
or default. The jurisdiction
of a chancellor extends further
in this respect tlian that of the
courts of common law, and he may
not only afibrd relief against the
constructive fraud arising from
an attempt to take advantage
of a mistake, but modify the un-
sound or obnoxious clauses in a
deed or contract, so as to make the
operation of the whole conform-
able to the dictates of good faith
and conscience ; see Glass v. Hul-
berf, 102 Mass. 24, 36 ; Torry v.
Buck, 1 Green, 366 ; Lord Abing-
ton V. Beitler, I Vesey, Jr. 206 ;
Caluerly v. Williams, lb. 210.
Accordingly it will make no dif-
ference as it regards this principle,
whether the mistake or fraud is set
up as a reason wliy the contract
should not be enforced, or as a
ground for the reformation of the
contract and carrying it into execu-
tion as amended ; Gillespiev. Moon,
2 Johnson's Ch. 585. There a bill
was filed for a reconveyance of 50

acres which had been included by
fraud or mistake in a deed from
the complainai.t to the defendant;
and it was contended on behalf of
the latter, that if joarol evidence
was admissible jn siuch a case, it
could not be adduced for the com-
plainant against an answer deny-
ing the mistake. But this argu-
ment \i as overruled by tlie chancel-
lor on the broad ground that to
take advantage of the miswording
of a deed to obtain land which had
not been bought or paid for, and
which the grantor did not intend to
convej', was equally against equity
and good conscience whether he
was a complainant or defend-
ant. If the mistake could be
shown by parol evidence in any
case, such evidence must be ad-
missible in every case where the
mistake was set up fraudulently
or oppressively against the true in-
tent and meaning of the contract.
" It has been said, that there was
no instance of a mistake corrected
in favor of a plaintifi', against the
answer of the defendant, denying
the fact of mistake. But I do not
understand any of the dicta on this
point to mean, that the answer,
denying the mistake, shuts out the
parol proof, and renders relief un-
attainable, however strong that
proof may be. The observations
of Lord Eldon, in the case of The
Marquis of Townshend v. Stan-
groom, certainly imply no more,
than that the answer is entitled to
weight, in opposition to the parol
proof, but it certainly can be over-
come by such proof. In that very
case, the answer denied the mis-
take, yet parol proof was held ad-

992 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

missible. The lord chancellor only
said, that the evidence must be
taken with due regard being had
to the answer, and that it must not
be forgotten, to what extent the
answer of one.of the parties admits
or denies the intention. Lord
Thurlow said, that there was so
much difficulty in establishing the
mistake, to the entire satisfaction
of the court, that it had never pre-
vailed against the answer denying
the mistake. I am not inclined on
light grounds, to contradict such
high authoritj-, but, as I read the
case of Pitcairn v. Ogbourne, 2
Yesey, 31^, before Sir John
Strange, the bill waste be relieved
against an annuity bond, and to
reduce the sum from ISOLto lOOL,
according to the original under-
standing and agreement of the
parties. The answer denied posi-
tively all the circumstances, and
every particular ' of the private
agreement, and parol proof, by
several witnesses, was objected to
and admitted, which falsified the
answer, and made out the real
agreement to the satisfaction of the
court, and though relief was not
granted, it was refused upon other
and distinct grounds no way con-
nected with the question, as to
the competency and effect of the
proof.

" It is the settled law of this
court, as was shown in the case of
Boyd V. M'Lean, 1 John. Ch. Rep.
582, that a resulting trust may be
established by parol proof, in op-
position to the deed, and in oppo-
sition to the answer denying the
trust. There is no reason why the
answer should have greater effect

in tills than in that case, and there
would be manifest inconsistency in
the doctrines of the court, if such
a distinction existed. The case of
Marks v. Pell, 1 Johns. Ch. Rep.
598-y, which was referred to by
the defendant's counsel, admitted
that parol proof of mistakes was
competent ; and it was held not to
be sufficient in that case, because
it consisted of naked confessions
of a party, made seventeen years
after peaceable possession, under
a deed. The confessions, in that
case, were also of a negative kind,
and deduced from tacit acquies-
cence : the party who made them
was dead, and the possession had
been, for thirty years, under the
deed, and there were no corrobo-
rating circumstances in aid of the
confessions. Surely there is noth-
ing to be drawn from that case, in
opposition to the competency of
the proof in this.

" We have a strong case on this
subject, in Washburn v. Merrills,
which was decided on the equity
side of the Supreme Court of Con-
necticut, in 1801 ; 1 Day's Cases
in Error, 139. A mortgagor, in
that case, made, by mistake, in
1184, an absolute deed, which he
did not discover imtil some time
after. The mortgagee got into
possession, and, in March, 1801,
sold to a purchaser, by a deed with
covenants of warranty. In August,
1801, a purchaser under the mort-
gagor filed his bill, or petition,
against the purchaser under the
mortgagee, to redeem. The an-
swer set up the Statute of Frauds
as a defence ; and, on the trial,
parol proof of the mistake was of-

WOOLLAM V. HBARN.

993

fered by tbe plaintiff, objected to
and admitted, and the deed estab-
lished as a mortgage, and a riglit
of redemption decreed. This de-
cree was afterwards unanimously
confirmed in the Court of Errors
of that State.

" My opinion, accordingly, is
that the parol proof, in this case,
was competent and admissible, and
that it establishes, most clearly
and conclusively, the fact of the
mistake, as charged in the bill."

It results from what is here
said, that where the case does not
come within the prohibition of the
statute, parol evidence of mistake
or fraud is admissible, not only
on behalf of a defendant who is
resisting a specific performance,
but of a complainant who seeks
to have a deed or contract rectified
and enforced ; Glass v. Hulbert,
102 Mass. 24, 41 ; (Vorley v. Tug-
gle, 4 Bush, 164, 1*73 ; Melcalf v.
Putnam, 9 Allen, 97; Lyman v.
The TJlica Ins. Co., \1 Johnson,
STT; Gooding v. M'Alister, 9
Howard Pr. 123 ; Newson v. Buf-
feriow, 1 Devereux, Equity-, 8t9 ;
Rogers v. Atkinson, 1 Kelly, 12;
Shipp v. Swann, 2 Bibb. 82; Bel-
lows V. Stone, 1 4 New Hampshire,
1Y5 ; Smith v. Greeley, lb. 318 ;
Hyde v. Tanner, 1 Barbour, S. C.
T5 ; Ooverneur v. Titus, 1 Ed-
wards, 477 ; 6 Paige, 347 ; Harris
V. The Columbiana Ins. Co., 18 Ohio,
116; Webster v. Harris, 16 Id.
490 ; M' Gall v. Harrison, 1 Brock-
enbrough, 126 ; Bailey v. Bailey,
8 Humphreys, 230 ; Wooden v.
Haviland, 18 Conn. 101 ; Cham-
berlain V. Thompson, 10 Id. 243;
Wesley v. Thomas, 6 Har. & John-
VOL. II 63

son, 24; Clapton v. Martin, 11
Alabama, 187; Brady v. Parker,
4 Iredell Eq. 430 ; Christ v. Dif-
fenbach, 1 S. & R. 464 ; Moliere
V. The Pennsylvania Ins. Co., 5
Rawle, 347 ; Gower v. Sterner, 2
Whar. 75 ; Bowman v. Bitlen-
bender, 4 Watts, 290 ; Clark v.
Partridge, 2 Barr. 18 ; 4 Id. 166 ;
Susquehanna Ins. Co. v. Perrine,
7 W. & S. 348; Beardsley v.
Knight, 10 Vermont, 185 ; Smith
V. Greeley, 14 New Hampshire,
378 ; Craig v. Kittredge, 3 Fos-
ter, 231 ; Leitensdorfer v. Del-
phy, 15 Missouri, 160. Such ap-
plications are, notwithstanding,
addressed to the sound discretion
of the chancellor, and will not be
granted unless the case is made out
with a certainty which leaves no
room for doubt, ante, 980. Hunter
V. Bilyeu, 30 Illinois, 246 ; Har-
rison V. Howard, 1 Iredell, Eq.
407 ; Brady v. Parker, 4 Id. 430 ;
Bailey v. Bailey, 8 Humphreys,
230; Lyman v. The United Ins.
Co., 2 Johnson Ch. 630 ; 17 John-
son, 373 ; Beard v. Linthicum, I
Maryland Ch. 345.

The rule laid down in Gillespie
V. Moon, is necessarily subject to
the control of the legislature, and
will not be applied where it would
conflict with the letter or spirit of
a statute ; Glass v. Hulbert, 102
Mass .24, ante, 971. The Statute
of Frauds provides that no estate
or interest in land shall be created,
nor any trust declared without a
writing signed by the party to be
charged. It is well settled that evi-
dence of a parol variation of a writ-
ten contract, or that the agreement
as set forth in the writing, differs

994 SPECIFIC PBRFOEMANCE. PAROL EVIDENCE.

from that actually made, reduces
the whole contract in legal con-
templation to parol, and thus
brings it within the disabling op-
eration of the statute. This is
equally true whether the evidence
is adduced against or in favor of a
decree of specific performance, and
although it appears that the de-
fendant was guilty of a fraudulent
misrepresentation, which deceived
the complainant. Such proof may
justify a rescission of the contract,
but will not justify an order that
the defendant shall make his repre-
sentations good ; Glass v. Hulbert,
102 Mass. 24. The legislative pro-
hibition is express, and no excep-
tion can be made unless on the
ground of an equitable estoppel,
which cannot arise where the con-
tract is executory, and nothing
has been done under it on either
side ; Glass v. Hulhert ; see Wor-
ley V. Tuggle, 4 Bush, 169, 185.
It follows that a comi^lainant in a
bill for specific performance, who
proves that the writing on which
he relies is vitiated by fraud or
mistake, destroys his own case. It
is then apparent that the contract
as it stands is not the true one, and
that the true contract is invalidated
by the statute, and as the former
ought not to be, and the latter
cannot be enforced, there is no
room for a decree of specific per-
formance. The rule extends to
the defendant, and while he may
defeat the prayer of the bill by
showing that the writing does not
contain the terms actually agreed
on, he cannot compel a specific
execution of the contract as thus
varied, unless the modification is

admitted by the plaintiffs ; Miller
V. Chetwood, 1 Green Ch. 199;
Best V. Stow, 2 Sanford Ch. 298 ;
Harrison v. Talbot, 2 Dana, 268.

It follows that one of two or
more persons who have entered
into a joint contract for the pur-
chase of land, cannot show that
the others are sureties, and that
he is consequently entitled to the
entire estate, a?iie, 928. Arnold y.
Cessna, 1 Casey, 34 ; because, al-
though such evidence does not
contradict the contract ; see Har-
ris V. Brooks, 21 Pick. 195 ; 2 Am.
Lead Cases, 442, 5 ed. ; it is pro-
hibited by the statute ; see Meason
V. Kaine, 13 P. F. Smith, 3.i9.
Such at least is the rule, unless the
complainant can establish the ex-
istence of some fact which gives
rise to a controlling equity, as for
instance that he took exclusive
possession of the land, or that the
consideration moved solelj' from
him.

This doctrine does not conflict
with the decision in Gillespie v.
Moon. The statute of frauds pro-
hibits the creation of an estate in
land without a writing. It does
not provide that a deed purport-
ing to pass such an estate shall not
be invalidated by parol. It is
every day's experience that a grant
procured by fraud is voidable, and
may be set aside. The decree
in Gillespie v. Moon, was not that
the defendant should perform an
oral contract, or one established
by parol, but that he had no title
to the fifty acres which had been
conveyed by mistake, and the
order for a reconveyance was
merely a mode of carrying the de-

WOOLLAM V. HEARN.

995

cree iuto effect; see Worley v.
Tuggle, 4 Bush, 170, 194.

The distinction is clearly drawn
in Elder v. Elder ^ 10 Maine, 80.
The bill was filed to rectify a mis-
take in a written contract for the
sale of a lot of land in the town-
ship of Windham, by showing
that part of the land, meant to be
embraced in the contract, lay in the
township of Westbrook. It is by
no means clear, that the ambiguity
was not latent, and within the
reach of parol evidence. But the
court treated the case as an at-
tempt to rectify the contract, and
carry it into effect as reformed.
And it was held to be clearly dis-
tinguishable from Oillespie v.
Moon, and within the prohibition
of the Statute of Frauds. " The
case of Gillespie v. Moon," said
Weston, J., " is relied upon as an
authority in favor of the plaintiff.
The defendant there had agreed
to purchase two hundred acres of
land, the location and bounds of
which were well understood. But
by mistake, clearly proved by
parol, the deed embraced fifty
acres more. The defendant, per-
ceiving his advantage, although
he acknowledged the mistake to
several persons, insisted upon
holding all the land, covered by
his deed. This claim, so clearly
against equity and good con-
science, was strongly tinctured
with fraud ; for there is little dif-
ference in moral turpitude, between
fraudulently making a deed con-
veying more than is intended by
the parties, and attempting to
hold the same advantage, where it
arises from mistake or accident.

Indeed fraudulent conduct is dis-
tinctly imputed to him in the
opinion of the court." The chan-
cellor says, " the only doubt with
me is, whether the defendant was
not conscious of the error in the
deed, at the time he received it,
and executed the mortgage, and
whether the deed was not accepted
by him in fraud, or with a volun-
tarj' suppression of the truth.
That fraudulent views very early
arose in his mind is abundantly
proved. If it was a case of fraud,
as well as of mistake, there could
be no question either of the ad-
missibility of parol testimony, or
that the plaintiff' was entitled to
relief. Indeed he would have been
so entitled at law. But the meas-
ure of relief would have varied.
At law a fraudulent deed is en-
tirely void. In equity its effects
may be defeated only, so far as it
is intended to have a fraudulent
operation. But aside from the
fraudulent views, which may al-
ways be imputed to a party, who
would take advantage of a mis-
take, that alone may be regarded
in equity as an infirmity calling
for relief, where it goes to the
whole subject-matter of a convey-
ance, or where it effects only a
part of it. It is not charging a
party upon an executory contract,
in relation to real estate, which
connot be enforced unless in writ-
ing ; but it shows defects to defeat
the operation of a written con-
tract. It is in the nature of an
injunction upon a party, not to
avail himself of an advantage
against good conscience It does
not make a new contract, but ex-

996 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

amines the quality, extent, and
operation of one formally execu-
ted by the parties. It is one tl^ing
to limit the effect of an instru-
ment, and another to extend it be-
yond what its terms import. A
deed by mistake conveys two
farms, instead of one. If the suf-
fering party is relieved in such a
case by a court of chancery, full
effect is not given to the terms of
a written instrument. But the
Statute of Frauds does not pre-
scribe what effect shall be given
to contracts in writing ; it leaves
that to be determined in courts of
law and equit}^. A deed conveys
one farm, when it may be proved
by parol, that it should have con-
veyed two. Here equity cannot
relieve witliout violating the stat-
ute. To do so, would be to en-
force a contract, in relation to the
farm omitted, without a memoran-
dum in writing, signed by the
part}' to be charged, or by his au-
thorized agent. These are dis-
tinctions, which may be fairly
taken, between the case cited
from New York, where the plain-
tiff' sought to be relieved from the
undue operation of a deed, which
conveyed too much, and the case
before us, where the prayer of the
plaintiff is, that a contract in writ-
ing may be so extended by parol
testimony, as to embrace more
land than the contract covers.
But whether this court, sitting as
a court of equitj^, would receive
parol evidence of a mistake in a
deed, to restrain its operation, it
is not necessary to decide. There
may be a great appearance of
equity in such a proceeding ; but

it may admit of question, whether
more perfect justice would not be
administered, by holding parties
to abide b}' their written contracts,
deliberately made, and free from
fraud. As far as this rule has
been relaxed by the clear, une-
quivocal, and settled practice of
chancery, we are doubtless bound
by it, iu administering that of our
system, but we are not disposed
to adopt any new or doubtful ex-
ception to so salutary a rule."

" In Jordan v. SawJcins, 3 Bro.
C. C. 388 ; 1 Ves. 402 ; Bich v.
Jackxon, 4 Bro. C. C. 514 ; Clinan
V. Cooke, 1 Schoales & Lefroj', 92 ;
WooUa7n v. Hearn, t Yes. 211, and
in Higginson v. Clowes, 15 Yes.
516, the doctrine maintained is,
that a party seeking the specific
performance of an agreement, and
proposing to introduce new condi-
tions, or to vary those which ap-
pear iu a written instrument, will
not be permitted to do so by parol
testimony. And in Dwight v.
Pomeroy et al., 17 Mass. 303, Par-
ker, C. J., regards this principle as
fully settled by the more recent
chancery decisions in England, and
that a few cases, bearing a differ-
ent aspect, have been explained
away or overruled by subsequent
decisions."

A similar view was taken in
Westbrook v. Sarbesson, 2 M 'Cord
Ch. 112 ; and Bi-ooks v. Wheelock,
11 Pick. 439, and again in Osborn
V. Phelps, 12 Conn. 63. In Osborn
V. Phelps, the plaintiff" applied for
relief against a mistake in the
execution of a written agreement
for the sale of land, by which the
contract was rendered contradic-

WOOLLAM V. HEAR^V

997

tory, if not unintelligible. The
mistake was obvioiis in itself, and
established by the evidence, so
that the only question was whether
it could be remedied. The court
cited and relied on the cases of
Elder v. JElder, and The Attorney-
General V. Sitivell, 1 Younge &
Col. Exch. 559, as showing that
the statutory prohibition was im-
perative whether the question
arose in equity, or at common
law, and then went on to say,
" These cases appear to be founded
upon a just and reasonable con-
struction of the statute, and fully
establish the rule, that if two par-
ties enter into an agreement, re-
specting the sale of estate, and
fail to reduce that agreement to
writing, according to their inten-
tion, it is not competent for the
purchaser to come into a court of
chancery, for the purpose of hav-
ing the written agreement rectified
by the aid of parol evidence, and
then the execution enforced. This
rule does not apply, where the
mistake is set up by way of de-
fence against a claim for the spe-
cific execution of a contract. In
such case, the object is not to en-
force the execution of a parol
agreement, but to prevent the
execution of a written one, which
the parties never intentionally
made, to resist one, which, to en-
force, would be inequitable and
unjust. It was not the object of
the statute to give any greater
efficacy to written contracts for
the sale of lands than they pos-
sessed at the common law; but
merely to require such contracts
to be made in writing, in order to

lay the foundation of a suit at law
or in equity." It was said in like
manner of Miller v. Chetwood, 1
Green Chancery, 199, that fraud
or mistake might be set up against
a bill for the specific execution of
a written contract ; but that the
complainant must abide by the
writing, and could not vary its
effect orall}'.

The same doctrine may be found
in the following extract I'rom the
judgment in the recent case of
Glass V. Hulburt, 102 Mass. 24,
44. " In Gillespie v. Moon, the re-
lief sought and granted was by
way of restricting, and not bj' en-
larging the operation of the deed.
Such relief would not as already
shown, conflict with the Statute of
Frauds ; and neither the discus-
sion in that case, nor the citation
of authorities, had reference to tlie
bearing of the Statute of Frauds
upon tlie question of affording re-
lief upon contracts relating to
land. Indeed, the English cases
afford but little aid upon that point,
for tlie reason the courts there have
generally, without reference to the
Statute of Frauds, refused to en-
force written contracts with a modi-
fication or variation set up by parol
proof; Woollam v. Hearn, 1 Ves.
211, and notes on the s.nme in 2d
Leading Cases in Equity, 1104;
Nurse v. Seymour, 13 Beav. 254.
The principle which was main-
tained by Chancellor Kent, and
upon which the English authori-
ties were cited bj' him in Gillespie
V. Moon, was, that relief in equity
against the operation of a written
instrument, on the ground that by
fraud or mistake it did not express

998 SPECIFIC PERFORMANCE. PAROL BVIDBNOB.

the true contract of the parties,
might be afTorded to a plaintiff
seeking a modification of the con-
tract, as well as to a defendant re-
sisting its enforcement. That
proposition must be considered as
fully established ; 1 Story's Eq.
§ 161. It is quite another propo-
sition, to enlarge the subject mat-
ter of the contract, or to add a new
term to the writing, by parol evi-
dence, and enforce it. No such
j)roposition was presented by the
case of Gillespie v. Moon, and it
does not sustain the right to
such relief against the Statute of
Frauds "

Two inferences may be drawn
from the language held in these
instances ; one that a contract re-
lating to land cannot be established
by parol consistently with the stat-
ute; the other, that the statute
does not prohibit parol evidence to
invalidate such a contract. The
question arose in Best v. Stow, 2
Sandford Ch. 298, where the court
held the following language : " The
defendant in answer to a bill for a
specific performance, may prove by
parol evidence, that the written in-
strument sought to be enforced
against him, does not correctly and
truly express the agreement of
the parties, but that through fraud,
surprise or mistake, there is some
material omission, insertion or
variation, contrary to the intention
or understanding of the parties ;
2 Story Eq. §§ 769, TTO, and note;
1 Sug. on Vend. ch. 3, § 8, p. 224,
&c., 6 Am. ed. ; 1 Phill. Ev. 4
Am. ed. 569. And see The Mar-
quis of Townshend v. Slangroom,
6 Ves. 328 ; Ramsbottom v Gosden,

1 V. & B. 165 ; Gillespie v. Moon,

2 J. C. R. 585 ; Eich v. Jackson, 4
Bro. C. C. 514; S. C, 6 Ves. 334,
note c. I will mention a few of
the eases, in which this principle
has been applied. In Joynes v.
Statham, 3 Atk. 388, the defendant
was permitted to prove that the
agreement between the parties was,
that the rent was to be paid, clear
of taxes, which clause was omitted
in the agreement, as written and
signed.

" Glark v. Grant, 14 Ves. 519,
524, was a case, where performance
was refused upon a parol variation
of the written contract. In Wiiich
V. Winchester, 1 V. & B. 3Y5, parol
evidence of the auctioneer, war-
ranting the quality of land, was
received in opposition to a specific
performance of a contract, which
expressed the quantity to be forty-
one acres, more or less.

" In Glinan v. Gooke, 1 Sch. &
Lef. 22, 38, 39, Lord Redesdale
fully approved, and admirably
vindicated the principle, as appli-
cable to defendants resisting spe-
cific performance ; but he refused
to apply it in favor of the com-
plainant, who sought to enforce
performance. And Sir William
Grant, Master of the Rolls, pur-
sued the same course in Woollam
V. Hearn, T Ves. 211, at the same
time indicating the established
rule, in behalf of defendants.

" I think the defendant here is
justified in saying that the instru-
ment which he signed, did not con-
tain the agreement, which he en-
tered into, and that he is not
bound to perform it. The bill
must, therefore, be dismissed, but

WOOLLAM V. HEARN.

999

■without costs. The defendant has
failed in showing the fraud, which
he set up in his answer, and suc-
ceeds on a ground, which is not
inconsistent with good faith on
the part of the complainant, in
mailing the contract."

The right of the defendant to
resort to parol evidence, as a de-
fence to a bill for specific per-
formance, was also held or con-
ceded in Letcher v. Cosby, 2 A.
K. Marshall, 106 ; Lucas v. 31it-
chell, 3 Id. 246 ; Wood v. Lee, 5
Monroe, 51 ; Chambers v. Liver-
more, 15 Michigan, 381 ; Brad-
bury V. White, 4 Greenleaf, 391 ;
Ratcliff V. Alison, 3 Randolph,
581 ; Brooks v. Wheelock,\\ Pick.
489 ; Quinn v. Routh, 37 Conn. 16 ;
Patterson v. Bloomer, 35 Id. 5*7 ;
Ryno V. Darby, 5 C. E. Green,
231; Towner v. Lucas, 13 Grat-
tan, 705, 714; Workman v.
Guthrie, 5 Casey, 495, 510 ; and
Raffensberger v. Cullison, 4 Id.
427. And in Gathcart v. Robin-
son, 5 Peters, 262, the defendant
was permitted to set up a verbal
stipulation, that he should be per-
mitted to rescind the contract on
the payment of a sum certain, as a
reason why it should not be spe-
cifically enforced.

Although the defendant in a bill
for specific performance is free
from the restraints imposed by the
Statute of Frauds, he is subject to
the rules of evidence, and cannot
vary a written contract by parol,
except on the ground of fraud, or
of a fraudulent attempt to take
advantage of a mistake. But it
is equally well settled, that spe-
cific performance is discretionary,

or as the principle, sometimes ex-
pressed, is of grace not right ; Toby
V. Bristol, 3 Story, 800 ; Brady's
Appeal, 16 P. P. Smith, 277;
Huntingdon v. Rogers, 11 Ohio,
N. S. 511, 516; Oorham v. Pan-
coast, 6 Casey, 88 ; and the de-
fendant will generally succeed in
procuring a dismissal of the bill,
if he can convince the chancellor
that the exercise of his jurisdic-
tion will be inequitable under the
circumstances ; Bleakley's Appeal,
16 P. P. Smith, 187; Purcell v.
Smith, 13 Id. 420; Backus' Ap-
peal, 8 Id. 186 ; Deck's Appeal, 7
Id. 467; Blackwilder v. Loveless,
21 Alabama, 371 ; The Western
R. R. Corporation v. Babcock, 6
Metcalf, 346 ; King v. Hamilton,
4 Peters, 311 ; Leigh v. Crump, 1
Iredell Equity, 299 ; Love v.
Cobb, 63 N. C. 324; Lloyd v.
Wheatley, 2 Jones Equity, 267 ;
Ellis V. Burden, 1 Alabama, 458 ;
Fitzpatrick v. Beatty, 1 Gilman,
454 ; St. John v. Benedict, lb.
Ill ; Seymour v. Delancey, 6
Johnson Ch. 222; Matthews v.
Terwilliger, 3 Barbour S. C. 50 ;
Perkins v. Wright, 3 Harris &
M'Henry, 324 ; Simmons v. Will,
4 Id. 258 ; Rogers v. Saunders, 16
Maine, 92 ; Torry v. Buck, 1
Green Ch. 376 ; Henderson v.
Hays, 2 Watts, 148; Frisby v.
Ballance, 4 Scammon, 287 ; Oould
V. Womack, 2 Alabama, 83 ; Casey
V. Holmes, 10 Id. 776 ; Pennock v.
Freeman, 1 Watts, 408 ; Dalzell v.
Crawford, Parson's Equity Cases,
37 ; Stoutenburgh v. Tompkins, 1
Stockton, 332; Clarke v. The
Rochester Rail Road Co. 18 Bar-
bour, 350 ; The Canterbury Aque-

1000 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

duct Go. V. Ennwurth, 22 Conn.
608, ante, 933.

A court of equity may refuse a
specific performance on grounds
that would not warrant a decree
of rescission, or tliat tlie contract
should he delivered up or can-
celled ; and it may proceed at the
instance of one party where it
would not have entertained the
application of the other ; Espey v.
Anderson, 2 Harris, 308, 310;
Baffensherger v. Cullison, 4 Ca-
se3', 426 ; Workman v. Guthrie, 5
Id. 495. Such a defence is not-
withstanding addressed to a dis-
cretion which is not arbritary or
capricious, but exercised in ac-
cordance with the established prin-
ciples. See The Marquits of
Townnhend v. Stangroom, 6 Yesey,
328, 333 ; Seymour v. Delaney, 3
Cowen, 445, 525 ; Anh v. Baggy, 6
Indiana, 259; Quinn v. Roath, St
Conn. 16, 24 ; IV Comas v. Easley,
21 Grattan 31. The defendant may
show that he was induced to enter
into the agreement by a false rep-
resentation or assurance, or that
he has c anged his position for
the worse on the faith of a subse-
quent waiver or modification ; but
the better opinion seems to be
that he cannot, any more than
the plaintifl', transgress the limit
set in Lord Trnham v. Child, by
alleging that a writing, which he
has accepted, with a full knowl-
edge of its purport, does not
express the contract. In Omerod
V. Hardmann, 5 Vesey, 722,
130; the court refused to hear
the testimony adduced to prove
the oral variation alleged in
^he answer : and Graham, Baron,

said, " that such evidence can onlj'
be admitted where the written con-
tract is not drawn according to the
intention of the parties." The
same rule was applied in Croome
V. Lediard, 2 Mylne and K. 281 ;
and although the dicta of tlie Mas-
ter of the Rolls in Giarke v.
Grant, 14 Vesey, 519, give a
wide scope to parol evidence, the
true ground for the decision
was not the parol variation of
the written contract, but the de-'
fendant's long and undisturbed
possession conformably to the
variation, and the plaintiff's acts
and declaration by which it was
authorized and confirmed. There
was consequentlj' a part perform-
ance which took the case out of
the statute. In The Marquis
of Townshend v. Stangroom, 6
Tese}', 328, 341, the agreement
was obscure and contradictorj-,
and the defendant was allowed
to show by the complaintants'
acts and declarations that he did
not mean to include a particular
lot, and that the complaintants
must have known that he could
not mean to include it, but this is
a verj' diflTerent thing from varying
the terms of the writing by parol.
In Lee v. Kirhy, 104 Mass. 430,
the court said, " If there was an
independent or collateral agree-
ment to the effect that the defend-
ant might buy for cash at a lower
price, and if that collateral agree-
ment was intentionally omitted
from the written contract, and left
as a matter of honorary obligation
merelj', it would riot present a
case of mistake, fraud or surprise
iipon which the court would refuse

WOOLLAM V. HEARN.

1001

a decree of specific performance.
Irnham v. Child, 1 Bro. Ch. 92,
was a case in which a right to
redeem was omitted from a written
contract to convey, and left to an
honorary understanding, in order
to avoid the objection of usury.
Lord Thnrlow held that it was no
bar to a decree for a specific per-
formance of the written contract.
1 Sugden on Vendors, 1 Am. ed.
181 ; 1 Story's Eq. § 150, and cases
cited," ante, 934.

In Quinn v. Boath, 3*7 Conn.
16, it was nevertheless said to be
established that the defendant in
a^ bill for specific performance,
may show that the writing was
executed on the faith of an oral
stipulation, which is not set forth
in the bill, and which the com-
plainant seeks to disregard. The
respondent was accordingly held
entitled to prove that it had been
verbally agreed at and before the
execution of the writing, that if
tlie vendee did not pay the first
instalment of the purchase money
on the first of April, following,
the contract should be void.

If we now pass from executory
contracts, to contracts which have
been carried into effect by the de-
livery and acceptance of a deed,
the question is complicated by
other considerations. It may be
presented in two aspects, one
where the complainant seeks to
qualify or limit the deed, the
other where he seeks to enlarge
its operation. A bill filed to
reform the instrument, by intro-
ducing a condition or reserva-
tion which has been fraudulently
or accidentally omitted, or to ex-

clude land which the grantor did
not intend to convey, are instances
of the former kind, and the weight
of authority is, that relief may be
afibrded on such grounds without
transgressing the statute. Loss v.
Obry, 1 C. E. Green, 52. What the
legislature intended to prohibit,
was the creation of an estate in
land by parol, not the modification
by parol of an estate created by
deed. It is accordingly well set-
tled, that a conveyance which
transfers more than the grantee is
entitled to receive, may be con-
fined to its proper bounds without
the aid of written evidence.

In Gillespie v. Moon, ante, 992,
the grant was partially vacated, by
directing the grantee to reeonvey
50 acres, which had been included in
the deed by mistake. A similar de-
cree was made in Ganedy v. Marcy,
13 Gray, 313 ; and again in Newson
V. Bufferlow, 1 Devereux, 519,
where the variance arose from
fraud.

The principle is the same where
the estate is conveyed absolutely,
without the reservations or restric-
tions on which the parties had
agreed. In Athy v. M' Henry, 6
B. Monroe, 59, the grantee was
enjoined from building on ten feet
of the land conveyed, so as to ex-
clude the light and air from the
grantor's house, contrary to a re-
servation which had been agreed
on orally, but omitted from the
deed. The case of Brown v. Lamp-
ton, 35 Vt. 258,is nearly the same,
except that the mistake consisted
in not reserving the right to draw
water from a spring on the land
passed by the deed, and convey it

1002 SPECIFIC PBRPOEMANCE. — PAROL EVIDENCE,

by a pipe or aqueduct to an ad-
joining tract belonging to the
grantor. So a chancellor may re-
form a deed which is so worded
through the mistake or igno-
rance of the conveyancer, as to
exclude the vendor's lien, con-
trary to the instructions given by
the parties. Wbrley v. Tuggle, i
Bush, 168. In like manner a deed
which describes land in the north-
west corner of a township, as being
in the northeast corner, or land in
one township, as situate in an-
other, may be reformed without
contravening the statute, whether
the mistake appears by parol or
written evidence, because the sub-
ject matter is identified, not
changed. Governeur v. Titus, 1
Edwards Ch. 480, 6 Paige, 347 ;
Wiswell V. Hall, 3 Paige, 313;
White V. Wilson, 6 Blackford, 448 ;
Toung v. Coleman, 43 Missouri,
IT 9; Steivart v. Brand, 23 Iowa,
22T. But someof thesedecisions go
very far, and it is doubtful whe-
ther such relief can be aflForded,
unless the case falls within the
maxim falsa designatio non no-
cet. See Worley v. Tuggle, 4 Bush,
168-186; see Gonover v. Wardell,
5 C. E. Green, 266 ; T Id. 492.

In like manner a mortgage or
other writing given as a security
for a debt, may be reformed by
proof that the debt exceeds the
sum named in the writing. Mat-
thews V. Terwiliger, 3 Barb. 50
Eider v. Powel, 28 New York, 810
Hoffman v. Fry, 5 Jones Eq. 415
see Bellows v. Stone, 14 New
Hampshire, 175. Such evidence
does not enlarge the operation of
the instrument as a conveyance.

although it imposes a greater bur-
den on the grantor ; and the case
depends on the established prin-
ciple, that a deed may be controlled
by evidence of the source or nature
of the consideration. Worley v.
Tuggle, 4 Bush, 168, 194. The
legal title is in the grantee, and
chancery will not suffer the grantor
to redeem, without doing the equity
which he seeks.

In Metcalf v. Putnam, 9 Allen,
the bill was filed to reinstate a
covenant that the premises con-
tained seven acres, and that if they
did not, the grantor would make
compensation for the deficiency.
The relief prayed for was granted,
on proof that the deed as origin-
ally drawn, contained such a cove-
nant, and that it was fraudulently
erased before the execution of the
instrument, without the knowledge
of the grantee. This case is not
easily reconcilable with the doc-
trine that, the operation of a con-
veyance of real estate cannot be
enlarged by parol. If the grantor
can be compelled to insert a war-
ranty of quantity, he may be
compelled to insert a warranty
of title, and the efiect of such
an alteration may be to pass
after acquired land, under the
doctrine of estoppel as estab-
lished in Massachusetts, and some
of the other States of the Union, 2
Smith Lead. Cases, 7 Am. ed. 991.

It has been contended that the
distinction made in these instances
between executed and executory
contracts is illogical, and at vari-
ance with the statute of frauds.
If a written agreement for the sale
of two parcels of land cannot be

WOOLLAM V. HEARN.

1003

restricted to one of them on the
ground of mistake or fraud, and
then enforced against the pur-
chaser, how can he be compelled
to surrender one of the lots after
both have been conveyed. Why-
should a contract which was not
susceptible of reformation while
executor}'-, be reformed after it has
been carried into effect by a con-
veyance ? The execution of the
deed fortifies rather than weakens
the position of the purchaser, by
conferring the legal title.

The answer to this argument ap-
pears to be that a chancellor may
afford relief to one who has been
injured by the fraudulent conduct
of another. This is true, al-
though the fraud is committed
through the instrumentality of a
contract for the sale of land. It
will not avail the contriver of such
a harm to insist that the subject
matter is real estate, and plead the
statute. If land be devised to one
ou the faith of his promise to con-
vey it to another, a court of equity
will compel the execution of a
deed; vol. 1, 352; McCormick v.
Grogan, 4 Law Rep. House of
Lords, 82 ; Parker v. Urie, 9 Har-
ris, 305. And as this may be done
where the contract is merely oral,
so it may be done by reforming a
written instrument, which does not
fully express the contract ; Moale
V. Buchanan, II Gill & Johnson,
314. But it is also true that every
such application is addressed to a
discretion which must be exercised
in view of all the circumstances.
The statutory prohibition is ex-
press, and ought not to be disre-
garded, unless the fraud has re-

sulted in an injury that cannot be
redressed in any other way ; Glass
V. Hulbert, 102 Mass. 24, 39. In
the language of Wells, J., in Glass
V. Hulbert, it is not that " deceit,
misrepresentation, or fraud, of it-
self entitles a party to an equitable
remedy, but that equity will inter-
fere to prevent the accomplishment
of the fraud, which would result
from the enforcement of legal
rights, contrary to the actual
agreement." Or as it is expressed
elsewhere in the same opinion, " it
is not the deceit but the subsequent
change of situation or transfer of
property, without which the deceit
would be innocuous, which is the
moving cause for the intervention
of a chancellor." Such a cause
cannot well arise while the contract
is executory, and nothing has been
done under it on either side.
There is no actual loss, and the
vendor may proceed at law for the
prospective injury. The convey-
ance through fraud or mistake of
more land than has been bought
and paid for, presents a different
case. To rescind the sale alto-
gether, would leave the vendor
without an effectual remedy unless
the purchaser were solvent and
able to refund the price. It is
therefore requisite to reform the
deed, by a decree that the gran-
tee shall keep what justly belongs
to him and restore the rest.

The question nevertheless is to
a great extent one of circum-
stances, and does not admit of any
fixed rule. A chancellor will not
ordinarily reform a contract con-
cerning real estate, because relief
may be afforded by setting the

1004 SPECIFIC PERFORMANCE. — PAROL EVIDENCE,

contract aside, or restraining the
prosecution of a suit at law. But
a purchaser who goes into posses-
sion and paj^s the price, or makes
valuable improvements, is as much
entitled to consideration as if he
had received a deed, and ma}''
j.ustly ask for the rectification of
any error which has found its way
into the contract through mistake
or fraud.

The right to relief is indubitable
where the acts of part performance
indicate that the real agreement
differs from that set forth in the
writing, and it may be accorded
independently of such proof

The hardship that may result
from likening the reformation of
a deed to the specific enforcement
of an executory contract, appears
from the case of OMll v. Whit-
taker^ 2 Phillips, 338 ; where the
residue of a term of years was as-
signed under a mistaken belief on
both sides, that it would expire in
eight years, while in point of fact
it had twenty years to run before
reaching its termination. A bill
having been filed to have the as-
signee declared a trustee for the as-
signor as to the twelve years which
the latter had ignorantly conve.yed,
the chancellor said, " It is impossi-
ble, to give any relief on this bill.
It goes far beyond any of the cases
that have been cited. The plain-
tiffs do not ask to rescind the trans-
action altogether : nor could they ;
for, after ten years' occupation and
expectation of the benefit of re-
newal, it would be impossible to
restore the purchaser to his origi-
nal situation. What they say is,
that the contract was improperly

executed by the assignment, and
they ask that what remains of the
term after the expiration of the
eight years may be reassigned.
But what is that, but to call upon
this court to decree specific per-
formance of a contract with a va-
riation ? For the thing that both
the vendor agreed to sell and the
purchaser to buy, was the residue
of the term, and not a portion of
the residue.

" Suppose a party jDroposed to
sell a farm, describing it as 'all
my farm of - 200 acres,' and the
price was fixed on that supposition,
but it afterwards turned out to be
250 acres, could he afterwards
come and ask for a reconvej'ance
of the farm, or payment of the
difference ? Clearly not ; the only
equitjr being that the thing turns
.out more valuable than either of
the parties supposed. And whether
the additional value consists in a
longer term or a larger acreage, is
immaterial.

" Some of the cases cited were
cases in which the parcels in the
deed embraced more than the par-
ties intended to deal with. , But
the misfortune of this case is, tlmt
here the plaintiffs did intend to sell
all the remaining interest in the
lease, but by their own mistake
they misdescribed what that inte-
rest was. I cannot distinguish
such a case from that of a bill to
compel specific performance with
a variation ; for the object of the
bill is to introduce a new term :
either to make the purchaser pay
more ; or to make him a trustee of
the rest the term. That cannot
be done."

WOOLLAM V. HEARN.

1005

The obstacle to . redress, in this
instance, appears to have been not
the statute, but that if the writing
did not express the contract, there
■was none. The mistalie was not
in the wording of the deed, but as
to the length of the term ; and the
powers of a chancellor do not ex-
tend to making an agreement.
Whether the error is as to the
duration of the estate or the
quantity of the land, it cannot be
rectified without compelling the
purchaser to pay a greater price
for the same thing, or the same
price for a less thing. This is as
true of a bill to reform an exe-
cuted contract, as it is of a bill to
enforce an executory contract with
a parol variation. There is this
difference, that while the contract
is executory and the parties can be
restored to their original position,
adequate relief may be aiforded
by setting the contract aside
When thte becomes impracticable
through the execution of a deed,
followed by the payment of the
purchase money, the erection of
improvements, or a change of value
consequent on the lapse of time,
the case is no longer the same, and
there should be a corresponding
change in the remedy.

The remaining branch of the
inquiry, that where the bill is filed
to enlarge the operation of the
deed, has still to be considered.
Such a case is directly within the
statute, if considered as one ex-
contractu, and the question is
whether relief can be afforded on
the ground of tort. The prohibi-
tion is conclusive against the
right to enforce a contract re-

lating to land, which is not re-
duced to writing, or proved by
written evidence, but the legisla-
ture did not intend to preclude a
court of equity from taking cogni-
zance of fraud. To warrant the
exercise of eqitable jurisdiction on
this ground, it must appear not
only that fraud exists, but that
redress cannot be obtained through
the ordinary forms of procedure.
If a verdict for damages would *
afford adequate compensation the
bill should be dismissed, and the
complainant remitted to an action
at law. The right to equitable
relief depends not so much on the
deceit, as on what the complainant
has done or suffered in conse-
quence of the deceit. The ques-
tion, therefore, comes to this :
What is such an injury as will
justify a chancellor in directing a
convej-ance contrary to the letter
of the statute ? So far the au-
thorities agree. But here there
is a wide divergence. Agreeably
to some of the earlier decisions,
which are followed in Massachu-
setts, the execution of a contract
for the sale of real estate by the
delivery or acceptance of a deed
on the faith of a false or fraudu-
lent description of the location or
quantity of tlie land, does not
work such a change in the situa-
tion of the purchaser as to au-
thorize a decree that the vendor
shall rectify the error. In Glass
V. Hulhert, 102 Mass. 24, one of
two adjoining lots belonging to the
vendor, was purchased on the faith
of a fraudulent representation,
that it included sixteen acres,
which were in point of fact con-

1006 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

tained in the other lot. The fraud
was discovered after the delivery
of the deed, and the purchaser
filed a bill praying that the vendor
might be compelled to convey the
land which had been fraudulently
omitted. The court held that the
mere circumstance that the omis-
sion or defect in such an instru-
ment, is occasioned by mistake or
fraud, does not preclude the de-
fendant from relying on the
statute, unless the plaintiff will
suffer an irreparable injury if the
deed is not reformed. As this did
not appear in the case under con-
sideration, the bill was dismissed.
It was held in like manner in
Churchill V. Sogers, 3 Monroe, 81,
that a chancellor cannot rectify a
deed on parol evidence of mistake,
so as to include a greater quantity
of land than that actually con-
veyed. The principle is the same
where a deed which should have
passed the title to two farms, is so
worded through fraud or mistake
as only to convey one, ante, 995 ;
see Smith v. Smith, 4 Bibb. 81 ;
Harrison v. Talbot, 2 Dana, 268 ;
WorleyY. Tuggle,4:Bush. 168,185.
The following extract from the
opinion of Wells, J., in Olass v.
Sulbert, gives a lucid and compre-
hensive view of this side of the
question. " When the proposed re-
formation of an instrument in-
volves the specific enforcement of
an oral agreement within the
statute of frauds, or when the
term sought to be added would so
modify the instrument as to make
it operate to convey an interest or
secure a right, which can only be
conveyed or secured through an

instrument in writing, and for
which no writing has ever existed,
the statute of frauds is a sufficient
answer to such a proceeding, un-
less the plea of the statute can be
met by some ground of estoppel,
to deprive the party of the right
to set up that defence ; Jordan v.
Sawkins, 1 Ves. Jr. 402; Osborn
V. PheliJS, 19 Conn. 63 ; Glinan v.
Cooke, 1 Sch. & Lef. 22. The fact
that the omission or defect in the
writing, by reason of which it
failed to convey the land, or ex-
press the obligation which it is
sought to make it convey or ex-
press, was occasioned by mistake,
or by deceit and fraud, will not
alone constitute such an estoppel.
There must concur, also, some
change in the condition or posi-
tion of the party seeking relief,
by reason of being induced to
enter upon the execution of the
agreement, or to do acts upon the
faith of it as if it were executed
with the knowledge and acquies-
cence of the other party, either ex-
press or implied, for which he
would be left without redress, if
the agreement were to be defeated.
The principle on which courts
of equity rectify an instrument, so
as to enlarge its operation, or to
convey or enforce rights not found
in the writing itself, and make it
conform to the agreement, as
proved by parol evidence, on the
ground of an omission, by mutual
mistake, in the reduction of the
agreement to writing, is, as we un-
derstand it, that in equity the pre-
vious oral agreement is held to
subsist as a binding contract, not-
withstanding the attempt to put it

WOOLL AM V. HEAEN.

1007

in writing; and upon clear proof
of its terms, the court compel the
incorporation of the omitted clause,
or the modification of that which
is inserted, so that ,the whole
agreement, as actually intended to
be made, shall be truly expressed
and executed. Hunt v. Rousma-
nier, 1 Pet. 1 ; Oliver v. Mutual
Insurance Co., 2 Curtis C. C. STt.
But when the omitted term or ob-
ligation is within the statute of
frauds, there is no valid agree-
ment which the court is authorized
to enforce outside of the writing.
In such case, relief may be had
against the enforcement of the con-
tract as written, contrary to the
purport and intent of the real
agreement of the parties. Such
relief may be given as well
upon the suit of a plaintiff seeking
to have a written contract, or some
of its terms set aside, annulled or
restricted, as to a defendant re-
sisting its specific performance.
Ganedy v. Marcy, 3T3; Gillespie
V. Moon, 2 Johns. Ch. 585 ; Keis-
selbrack v. Livingston, 4 Johns.
Ch. 148. Relief in this form, al-
though procured by parol evi-
dence of an agreement differing
from the written contract, with
proof that the difference was the
result of accident or mistake, does
not conflict with the provisions of
the statute of frauds. That sta-
tute forbids the enforcement of
certain kinds of agreement without
writing; but it does not forbid
the defeat or restriction of written
contracts ; nor the use of parol for
the purpose of establishing the
equitable grounds therefor. The
parol evidence is introduced, not

to establish an oral agreement in-
dependently of the writing, but to
show that the written instrument
contains something contrary to or
in excess of the real agreement of
the parties, or does not properly
express that agreement. Higgin-
son V. Clowes, 15 Ves. 516 ; Clowes
V. Higginson, 1 Ves. & B. 524 ;
Squier v. Campbell, 1 Myl. & Cr.
459, 480.

But rectification by making the ,.
contract include obligations or a
subject matter, to which its written
terms will not apply, is a direct
enforcement of the oral agreement,
as much in conflict with the sta-
tute of frauds as if there were no
writing at all. Moale v. B uchanan ,
11 Gill & Johns. 314; Osborn v.
Phelps, 19 Conn. 63; Elder v.
Elder, Fairfield, 80. In Park-
hurst V. Van Cortlandt, 14 Johns.
15, 32, it is said that, "where it is
necessary to make out a contract
in writing, no parol evidence can
be admitted to supplj' any defects
in the writing." Per Thompson,
C. J. Such rectification, when the
enlarged operation includes that
which is within the statute of
frauds, must be accomplished, if at
all, under the other head of equity
jurisdiction, namely, fraud. Irn-
ham V. Child, 1 Bro. Ch. 92; 1
Story Eq. § TtO, a; Davies v. Fit.
ton, 2 Drury & Warren, 225 ; Wil-
son V. Wilson, 5 H. L. Cas. 40, 65 ;
Manser v. Back, 6 Hare, 443 ;
Clark V. Grant, 14 Yes. 519:
Clinan v. Cook, 1 Sch. & Lef. 22."
It has been held on the other
hand, in numerous instances, that
whether the fraud consists in in-
cluding land which the vendor did

1008 SPECIFIC PKRFOKM AN CE. — PAROL EVIDENCE.

not agree to sell, or in omitting
land which ought to have been
convej'ed, it is equally within the
rule that no one shall profit by
his own wrong, and that as a court
of equity may direct a reconvey-
ance in the former case, so it may
compel the execution of a deed
in the latter. The opposite doc-
trine lacks the essential element of
mutuality, and may result in in-
justice, by compelling a grantee
who has been tricked into accept-
ing a lot of less value than that
which he bought and paid for, to
elect between a rescission of the
contract, and a verdict for dam-
ages which the vendor maj^ be un-
able to pay. Tlie powers of a
chancellor are wide enough to em-
brace everj' case of fraud, whather
the subject matter is or is not
within the statute, and although
relief cannot be afforded without
enlarging the operation of a writ-
ten instrument. This is conceded
even by the courts which deny
that they should be exercised to
redress the injury is occasioned by
the fraudulent substitution of a dif-
ferent tract of land, or from a
fraudulent representation by which
the purchaser is induced to pay
for more land than he obtains.
See Glass v. Hulbert, 102 Mass.
24, 39. In Glass v. Hulbert, Wells
J., observed : " An oral agreement
for the sale of land, will not be
specifically enforced, nor will a
written agreement be reformed on
parol evidence in the absence of
proof of change of situation, or
part performance creating an es-
toppel against a plea of the sta-
ute." The question therefore, is,

what change of situation or part
performance will estop. Notwith-
standing the ability of the judg-
ment in Glass v. Hulbert, it is
throughout a petitio principii, in
assuming that the fraudulent sub-
stitution of a different tract, or the
fraudulent omission of land which
ought to be conveyed, can be re-
dressed by rescinding the sale, and
remitting tlie complainant to an
action for the deceit, or to recover
back the purchase money. The
vendor may not be able to respond
in damages, and if he is, the
injury may not admit of a pecu.
niarjr compensation. In Wiswall
V. Hall, 3 Paige, 313, the whole ob-
ject of the contract was frus.
trated by so wording the deed,
as to pass the title to a lot
which the grantee had not agreed
to buy, and which was whoUj^ un-
suited to the use which he had in
view. "We may consequentlj^ be-
lieve that the paj'ment of the pur-
chase money, and acceptance of a
deed on the faith of a false repre-
sentation of the boundaries or lo-
cation of the land convej-ed, is a
change for the worse, which cannot
be compensated without compel-
ling the vendor to make the repre-
sentation good. Payment alone
will not take the case out of the
statute, because the purchaser vol-
untarily neglects a precaution
which the legislature has re-
quired him to observe, but pay-
ment induced by fraud, is a very
different thing, and one requiring
the intervention of a chancellor.
The estoppel is, if possible, clearer
where money is advanced on the
security of a tract of land, and an-

WOOLLAM V. HEARX.

1009

other tract of inferior value fraudu-
lently or mistakenly substituted in
the mortgage or deed of trust.
Blodgett v. Hobart, 18 Vermont,
414 ; De Peyster v. Hasbrouck, 1
Kernan, 582.

The preponderance of American
autliority, accordingly, is that one
who takes advantage of a fraud or
mistake in the wording of a deed,
to withhold land in a way to occa-
sion irreparable injury to the gran-
tee, may be compelled to rectify
the error by a conveyance, not-
withstanding the statute. Worley
V. Tugijle^ 4 Bush, 182 ; Craig v.
Kittredge, 3 Foster, 231 ; Smith v.
Oreeley, 14 New Hamp. STS ; Flag-
ler \. Pleiss,S Rawle,345 ; Provost
V. Bebman, 21 Iowa, 419 ; Wright
v. M'Gormick, 22 Id. 545.

In Wiswall v. Hall, 3 Paige,
313, a vendor who knew that the
vendee accepted the deed, under
the erroneous impression that it
passed the title to a wharf which
was his main object in buying,
was compelled to rectify the error.
So in Flagler v. Pleiss, the opera-
tion of a deed was enlarged on
parol evidence, that land which
ought to have been included had
been left out by mistake ; and a
similar decree was made in Tyson
V. Passmore, 2 Barr, 122. In Cham-
berlain V. Thompson, 10 Conn.
243 ; the accidental omission of the
word "heirs" from a mortgage
was rectified by a decree which
charged the fee ; and in Hend-
rickson v. Ivins, Saxton, 562,
a bond was reformed, and en-
forced against a surety, although
the contract was for the default
VOL. II 64

of another, and within the 4th
section of the Statute of Frauds.
The principle was recognized in
Hunter v. Bilyeu, 30 Illinois, 228,
although the circumstances dil not
admit of its application; while in
Oouverneur v. Titus, 1 Edwards
Ch. 480; 6 Paige, 341, a deed
which had been so worded by mis-
take, as to pass the title to a
diflTerent tract from that which
the grantor intended to convey,
was reformed as against a judg-
ment creditor. In Tillon v. Tilion, 9
New Hamp. 385, the court rectified
a deed of partition by including land
which had been accidently omitted.
This case was followed in Craig
V. Kittredge, 3 Foster, 231 ; and in
Smith V. Greeley, 14 New Hamp.
378, an heir was compelled to rectify
the deed of his ancestor, by convej'-
ing the land actually sold. And
it has been held in several in-
stances, that a mortgage or deed
of trust maj' be enforced against
land wliicli it does not include in
terms, on proof that the omission
was due to fraud or mistake.
Blodgett v. Hobert, 18 Yermont,
414; Moale v. Buchanan, 11 Gill
& Johnson, 314 ; DePeysterw Has-
brouck, 1 Kernan, 582. In De-
Peyster v. Hasbrouck, the de-
fendant proposed to secure
the repayment of a sum of money
which he wished to borrow, by a
mortgage of a tract of land which
had been conveyed to him by the
Bank of Poughkeepsie, and fraud-
ulently induced the complainant
to believe that it contained a
tannery and bark mill, which stood
on an adjoining lot. The com-

1010 SPECIFIC PERFORMANC:

•PAROL EVIDENCl

plainant, thereupon, advanced the
money and took the mortgage,
and now sought relief against the
fraud. He also averred that the
premises actually covered by the
mortgage were an inadequate se-
curity, and that the defendant was
insolvent, and had conveyed the
tannery and the bark mill to a
third person, in trust for his wife.
Denio, J., likened the case to that
of Wisivall V. JIall, where the
vendee accepted a deed for " lot
No. 22," in the belief that he would
thereby obtain the title to a wharf,
which the vendor held under a
grant from the eit^', and the ven-
dor was compelled to convey the
wharf. It was accordingly de-
creed, that the premises described,
in the mortgage should be sold,
and if the proceeds did not satisfy
the debt, that the deficiency should
be made good by a sale of the
tannery and bark mill. In The
Stackhridge I?-on Go. v. TAe Hud-
son Iron Co., 102 Mass. 45, the
court held that a reservation or
exception ma}' be narrowed by
parol, although the effect is to
enlarge the operation of the deed ;
a result which seems hardly re-
concilable with the rule laid down
in Olanii v. Eulhert, in the same
volume of reports.

The dicta in some of the states
go farther and to the point that a
written instrument may be re-
formed on the ground of fraud or
a mistake, whether the contract be
executed or executory, and in aid
of a specific performance as well as
against it; Philpot v. Elliott, 4
Maryland Ch. 213 ; Phyfe v.
Warden, 2 Edwards, 41 ; Qower

V. Sterner, 2 Wharton, 15. Thus
in Keiisselbrack v. Livingston, 4
Johnson Ch. 144 ; Chancellor
Kent, asked, "Why should not
the party aggrieved by a mistake
in the agreement have relief as
well when he is plaintiff as when
he is defendant ? It cannot make
any difference in the reasonable-
ness and justice of the remedy,
whether the mistake were to the
predjudice of one party or the
other. If the court be a com-
petent jurisdiction to correct such
mistakes (and that is a point
understood and settled), the agree-
ment, when corrected and made
to speak the real sense of the
parties, ought to be enforced, as
well as any other agreement per-
fect in the first instance. It ought
to have the same efficacy and be
entitled to the same protection
when made accurate under the
decree of the court as when made
accurate by the act of the par-
ties."

A similar view is taken in 1
Story Eq. sect. 161; and in Work-
Tnan v. Guthrie, 5 Casey, 495,
510, Woodward, J., said: "The
point ruled in Woollam v. Hearn,
that although a defendant resist-
ing specific performance may go
into parol evidence to show that
by fraud the written agreement
does not express the real terms,
a plaintifi" cannot do so for the
purpose of obtaining a specific
performance with a variation — is
an emphatic expression of the
distinction between a plaintifi" seek-
ing and a defendant resisting
specific performance, but it is, in
itself considered, a doctrine which

WOOLLAM V. HEARN.

1011

■we do not follow. In cases of
fraud, mistake, surprise, or trust,
we allow either plaintiff or de-
fendant to go into parol. We
follow Chancellor Kent's able
opinion in Oillespie v. Moon^ 2
Johns Ch. R. 585, as was indica-
ted in our recent opinion in Raff-
ensberger v. Gullison, 4 Casey, 426.
In Tyson v. Passmore, 2 Barr,
122, the plaintiflF brought an equit-
able ejectment to enforce a cove-
nant to convey" " all the land
acquired by the warrant and survey
aforesaid." The plaintiff offered
to show that the defendant had
falsely represented that the war-
rant covered the whole of a vacant
tract of 260 acres, whereas, it
embraced less than one-third, and
that the plaintiff had paid the
price in full on the belief that
this allegation was true. The
court held that this evidence
should have been admitted, and
would if credited by the jury,
warrant a verdict and judgment
that the defendant should make
the representation good.

It should, notwithstanding, be re-
membered that parol evidence is
not admissible to qualify or control
a written instrument, except on the
ground of mistake or fraud. This
is a universal rule and applies a
fortiori where the case is within
the statute of frauds ; Lee v. Kirby,
104 Mass. 130 ; Blakeslee v. Bla-
keslee, 10 Harris, 23*7. In Bla-
keslee V. Blakeslee, Black, C. J.,
said : " There was but one bargain
between the parties, and that was
attested and consummated by an
interchange of their solemn deeds.
When the plaintiff claims land not

embraced in the deed, he is en-
countered not only by the statute
of frauds, but also by that other
rule of law, equally unbending,
which makes the deed conclusive
evidence of the contract."

" It is argued in this case, that
the deed does not express the
contract, and that a chancellor
would reform it or decree on the
evidence as if the forty-six acres
were included. This is an error ;
parol evidence can only be ad-
mitted in cases of fraud, or plain
mistake of fact. Simply stated,
the case stands thus : A father
agrees, by parol, to give his son
sixty-eight acres of land. He
afterwards makes and delivers a
deed for twenty acres, a portion
onlj' of the sixty-eight. The deed
being made without fraud and
accepted without mistake, cannot
be treated as a conveyance of land
which it does not mention. The
promise to convey the remaining
forty-six acres, whether made at
the date of the deed or before,
still rests in parol, and cannot be
enforced because the statute of
frauds forbids it, and because
there was no such exclusive pos-
session under it as will enable a
court to decree performance."

In Tilton v. Tilton, 9 New
Hampshire, 385, the ground taken
in Elder v. Elder, ante, 995, was
denied, and the power of the court
said to extend to the rectification
of a written contract, and carry-
ing it into effect. But the ques-
tion arose on a deed of partition,
and there was a part performance
by actual possession of the land
alleged to have been omitted from

1012 SPECIFIC PERFORMANCE. PAROL EVIDBNCE.

the deed, which would have taken
the case out of the statute if the
agreement had been merely oral.
It may be added, that in Cowles
V. Broivn, 10 Paige, 535, the ques-
tion was treated as still open in
New York.

This course of decision is not
wholly without precedent in Eng-
land. In Clarke v. Grant, 14
Vesey, 519, 524 ; the Master of
the Rolls said : " A defendant in
a suit for specific performance may
give the same evidence now wliich
he might have given before the
Statute of Frauds, and Lord
Thurlow in Pember v. Mathers, 1
Brown C. C. 54( went the length
of making a parol promise avail in
the case even of a plaintiff, and de-
creed a specific performance on the
ground of it. That was a bill for
a specific performance, brought by
the original lessees of a leasehold
estate, against the assignee of the
lease on his parol undertaking to
indemnify the plaintiffs against all
rents and covenants, to be paid or
kept on the part of the lessee, and
to execute a bond for such an in-
demnity. The assignment had been
made by a sale by auction, and the
conditions of sale did not stipulate
the indemnity ; but it rested only
on parol evidence. Lord Thur-
low held this evidence to be ad-
missible ; and laid it down, that,
where the objection is taken before
the party executed the agreement,
and the other side promises to
rectify it, it is to be considered as
a fraud on the partj-, if such
promise is not kept. There being
in that case a doubt as to the suf-
ficiencjr of evidence, establishing

the parol undertaking to indem-
nify, entered into by the the de-
fendants. Lord Thurlow directed
an issue to be tried, whether such
promise was made on the day of
the execution of the assignment,
and it being found in the affirma-
tive, the plaintiff had a decree for
a specific performance."

It is generally conceded, that a
case may be taken out of the stat-
ute on the ground of fraud
Crocker v. Higgins, 7 Conn. 342
Collins V. Tillou, 26 Id. 368
Thynn v. Thynn, 1 Vernon, 296
Strickland v. Aldridge, 9 Vesey,
516 ; Mestaer v. Gillespie, 11
Vesejr, 621 ; Brown v. Lynch,

1 Paige, 14Y ; Swett v. Jacocks, 6
Id. 355 ; Martin v. Martin, 16 B.
Monroe, 8 ; Kennedy v. Kennedy,

2 Alabama, 571; Beech v. Kev-
vegal, 1 Vesey, Sr. 123 ; Trapnall
V. Brown, 19 Arkansas, 39, 49;
Shields V. Trammell, lb. 51 ;
ante, vol. 1, p. 274 ; although there
has been much diversity of opinion
as to the limits within which the
doctrine should be applied ; Glass
V. Hulhert, 102 Mass. 24. In
Taylor v. Luther, 2 Sumner, 228.
Story, J. said, " nothing is better
settled, than that the true construc-
tion of the Statute of Frauds, does
not exclude the enforcement of
parol agreements respecting the
sale of lands in cases of fraud ;
for, as it has been emphatically
said, ttiat would be to make a stat-
ute, purposely made to prevent
fraud, the veriest instrument of
fraud. The whole class of cases
in which courts of equity act, in
enforcing contracts for the sale of
lands in cases of part performance,

WOOLLAM V. HEARN.

1013

turns up this general doctrine. It
is laid down with great clearness
and strength by my learned friend
Mr. Chancellor Kent, in his com-
mentaries (vol. 4, 143), and he is
fully borne out by the authorities
which he has cited (which I have
also examined), and also by other
authorities in pari materia. He
states it thus : ' a deed absolute
upon the face of it, and though
registered as a deed, will be valid
and effectual as a mortgage, as be-
tween the parties, if it was in-
tended by them to be merely a se-
curity for a debt. And this would
be the case, though the defeasance
was by an agreement resting on
parol ; for parol evidence is admis-
sible to show, that an absolute
deed was intended as a mortgage,
and that the defeasance had been
omitted or destro3'ed by fraud or
mistake.' It is the same, if it be
omitted by design, upon mutual
confidence between the parties ;
for the violation of such an agree-
ment would be a fraud of the most
flagrant kind, originating in an
open breach of trust against con-
science and justice. I do not com-
ment upon this subject at large,
because it seems to me wholly un-
necessary, in the present state of
the law, to do more than to enun-
ciate the principles which govern
eases of this nature, and which are
as well established as anj^ which
govern any branch of our juris-
prudence. In the present case
there is no pretence to saj^, that
Algernon Westcott, or the defend-
ant, have ever paid to the plaintiffs
the full value of the land; and,
indeed, the defendant does not

himself assert, as a distinct matter
of defence. So, that, if the facts
are fully made out, and the plain-
tifi's are remediless, there will have
been perpetrated a gross fraud
and injustice upon the plaintiffs,
and the defendant will reap the
full reward of an iniquitous bar-
gain on his side, obtained by medi-
tated fraud and deceit. It is
hoped that the morals of a court
of equity will at all times be found
too strong to suffer such injustice
to go unredressed."

This language approaches, if it
does not reacli the full extent of
the proposition, that parol evidence
is admissible, not only for the pur-
pose of proving fraud or mistake,
and thus varying or avoiding the
effect of a deed or writing, but for
that of adding a term to the in-
strument, and then treating the
attempt to enforce it as actually
drawn, as a fraud or breach of trust.
If this can be done, the salutary
restraints imposed bj' the rule of
evidence laid down in Lord Irn-
ham V. Child, and by the Statute
of Frauds, are at an end.

The mere circumstance that a
confidence lias been reposed and
violated, is not sufficient to exclude
the operation of the statute. This
is obvious, because the defendant
may admit the agreement and yet
plead the statute in bar. So an
insolvent vendor may induce the
vendee to pay the purchase-money
by the promise of a deed, and then
allege the want of written evidence
as an excuse for the non-fulfilment
of his engagement; vol. 1, 351.
The object of the Legislature, in
requiring a writing signed by the

1014 SPECIFIC PERFORMANCB. — PAROL EVIDENCE.

party to be charged, was to estab-
lish a rule which, though operat-
inghardlyin some instances, would
yet in the long run conduce to cer-
tainty and prevent fraud. This
object must necessarily fail, if evi-
dence is admissible that the writ-
ing was executed on t)ie faith of
an assurance that it should be sub-
ject to an oral variation. There is
a preliminary question in every
such case, was the assurance
given ? and this is precisely what
cannot be proved b}^ parol con-
sistently with the statute. To
justify the reformation of a writ-
ing, it must consequently be shown
that the stipulation which the
complainants seeks to introduce
was omitted through fraud or mis-
take, ante, 944. If it appears from
the defendant's acts and declara-
tions, or from the source and na-
ture of the consideration, that the
agreement has not been correctly
reduced to writing, the court may
go outside of the writing to look
for the agreement ; Gripps v. Jee,
4 Brown Ch. 412 ; Thomas v. J/'-
Cormick, 9 Dana, 108 ; Moses v.
Margatroyd, 1 Johnson Ch. 119.
But until such proof is adduced,
parol evidence is inadmissible
whether the question arises at
common law or before a chancel-
lor. The decisions are clear, and
with few exceptions, uniform,
that one who executes or ac-
cepts a written instrument pur-
porting to be a memorandum
of the contract, with a full
knowledge of the contents, is es-
topped from averring that the con-
tract is not what the writing shows

it to be. Beall v. Greenwade, 9
Maryland, 185. He cannot there-
fore prove that the other party
procured his signature by promis-
ing to do something which the
terms of the instrximent do not re-
quire, or charge the refusal to ful-
fil such an alleged assurance as a
fraud ; Lamborn v. Watson, 6 Har-
ris & Johnson, 252 ; Lamborn
V. Moore, Id. 422 ; Wilson v. Watts,
9 Maryland, 356. This results
from the rule of evidence estab-
lished at common law ; Fvlton v.
Hood, 10 Casey, 365 ; and applies
a fortiori where the case is within
the statute of frauds ; Brougfiton
V. Coffer, 18 Grattan, 184 ; Tow-
ver V. Lucas, 13 Id. 105, 116
Lamborn v. Watson, 6 Harris & J
252 ; Wilson v. Watts, 9 Maryland
461 ; Wilton v. TT'orwoorf, 23 Maine
131 ; Fisher v. Shaiv, 42 Id. 32
40; Glass v. Hulbert, 102 Mass
24 ; BlakesleeY. Blakeslee, 10 Har
ris, 231, ante, 944, 946.

" It is argued,'' said Strong, J., in
Fulton V. Wood, " that under the
doctrine of Renshaw v. Gans, 1
Barr, 111, and Rearich v. Swine-
hart, 1 Jones, 233, the parol evi-
dence was admissible. The prin-
ciple of those cases is, that obtain-
ing a paper for one purpose, and
subsequently using it for a differ-
ent and unfair purpose, is fraudu-
lent ; and that the subsequent
abuse will open the door for the
admission of parol evidence of
what took place at the execution
of the instrument. But if the
principle reaches as far as is con-
tended by the plaintiff in error,
the rule which excludes parol evi-

WOOLLAM V. HEARN.

1015

dence, when offered to alter, add
to, or contradict a written instru-
ment, is utterly annihilated.

The offer of such evidence al-
ways presupposes that the instru-
ment which it attempts to reform
is used for a purpose not originally
contemplated, and that it is so used
the parol evidence proposes to
prove. If it must be admitted, on
the ground that such abuse of the
instrument constitutes a fraud,
then the very fact is assumed, be-
fore the evidence is given, which
it is introduced to prove. This
cannot be. Until the abuse or
perversion of the written instru-
ment is shown, no fraud appears
sutBcient to make way for the ad-
mission of parol evidence to affect
it."

The principle is the same where
an oral agreement is alleged as
the foundation of a trust. It is
not enough that the complainant
was induced to change his position
for the worse by a promise which
has not been fulfilled. It must
appear that the promise was used
as a means of imposition or deceit.
If the case taken as a whole is one
of fraud, the promise may be re-
ceived in evidence as one of the
steps by which the fraud was ac-
complished. But until the fraud
appears, there is no room for the
admission of the promise. To de-
duce the fraud from the contract,
and then give effect to the contract
on the score of fraud, is obviously
reasoning in a vicious circle ; or as
the rule has been stated in Mary-
land, the parol evidence must show
that the contract had its inception
in the fraudulent contrivance of

the party against whom the relief
is sought, and not merely that he
is making an unjust use of the
contract to keep an advantage ob-
tained through the reliance of the
opposite party on his good faith and
fair dealing ; Lamborn v. Watson,
6 Harris & Johnson, 252 ; Wilson
V. Watts, 9 Maryland, 461.

The line was drawn in McDon-
ald V. May, 1 Richardson Eq. 91 ;
Schmitt V. Heywood, 2 Id. 162;
and Johnson v. La Motte, 6 Id.
356, where the court held that
an oral agreement to purchase
land at a judicial sale, for the de-
fendant in the execution, is invalid
and cannot be admitted in evi-
dence to prove a trust ; although
it may be sliown that the defend-
ant attended the sale, and deterred
bidders b}' declaring that he was
p.urchasing for the owner, and
would hold the land for his use.

In Joh-nson.\. Lainotte,th.e, com-
plainant's land was about to be
sold under a decree of foreclosure,
and one Beard promised to buy it
in, take the deed in his own name,
collect the rents and profits, and
convey the premises as soon as he
was reimbursed. The announce-
ment of this purpose at the sale
prevented competition, and he be-
came the purchaser at a price
much below the real value of the
land. Beard died not long after-
wards, and the complainant filed a
bill against his heirs and executors
setting forth the promise, and ask-
ing that it should be specifically
enforced, but also charging fraud.
The Chancellor said, " It is entirely
conceivable that a party, under the
obligation of a contract to pur-

1016 SPECIFIC PERFORMANCE. PAROL EVIDENCE,

chase a debtor's property for his
benefit, may purchase it even at
an under rate, and yet be liable to
the imputation of no other fraud
than a subsequent repudiation of
the contract, and a refusal to carry
it into effect ; as, for instance,
■where the agreement is secret, and
he is merely silent respecting it
at the time of his purchase, and is
guilt}' of no attempt to extinguish
competition. Here the sale is fair,
and, indeed, his contract has only
added one more to the number of
competitors. The only fraud of
which he can be guilty is in chang-
ing his mind after his purchase,
and refusing to perform what he
had undertaken. He maj^ have
been willing to perform it, but
may be prevented by death, and
and his executors and heirs not
being conusant of the agreement,
may not feel at liberty to execute
it. Such may well be the case in
the present instance. In all such
cases, the imputation of fraud has
no other basis than a mere refusal
to perform the contract. Such
fraud, whether intentional or un-
intentional, depends, as is said in
Schmidt V. Oateivood, entirtly
upon the question whether there
was in fact an agreement to be
performed : and the statute will
not allow that preliminary fact to
be established by parol. It is else-
where said, I think justly, that
if fraud, consisting in the mere
non-performance of an agreement,
or the injury resulting from non-
performance, be sufficient to take
the agreement out of the statute,
every case of non-performance is
taken out of it, and the statute is

a nullity. It seems to me incon-
clusive to answer this observation
by replying that an unconscientious
refusal to perform is such fraud,
as should be held to displace the
statute. The epithet unconscien-
tious is applicable to every naked
refusal to perform a fair agreement.
It adds, therefore, nothing to the
fraud of mere repudiation, and if
it be allowed to do so, and to take
the case out of the statute, we are
brought back to the original posi-
tion, to wit, tliat holding a refusal
to perform obviates the statute, is
a virtual abrogation of the statute
itself." But it was at the same
time held, that although the
contract was invalid. Beard's
declarations at the sale were
fraudulent, unless he bought the
land for the complainants' use.
The defendants were accordingly
declared to be trustees, and ordered
to execute a conveyance.

It has been held in like manner
in New Jersey, that a promise to
buy land at a sheriff's sale for the
defendant in the execution, will
not give rise to a trust, or preclude
the promisor from purchasing the
land for his own benefit ; Merritt
V. Broivn, 6 C. E. Green, 401 ;
vol. 1, 362.

It results from a like principle,
that a deed may be converted into
a mortgage, by evidence tliat it was
given in consideration of an ante-
cedent debt, on which interest was
paid and accepted subsequently to
the execution of the deed ; Cripps
V. Jee, 4 Brown Ch. 412; Rufier
V. Womack, 30 Texas, 342 ; Phil-
lips V. Hulsizer, 5 C. E. Green, 308 ;
or that the defeasance was omitted

WOOLL AM V. HE ARN.

1017

through the mistake of the scrive-
ner, or the fraudulent procurement
of the grantee, but not by proof of
a cotemporaneous oral stipulation,
which does not appear in the deed ;
Thomas v. M'Gormick, 9 Dana,
108 ; Franklin v. Boberta, 2 Ire-
dell Eq. 560; Kelly v. Bryan, 6
Id. 283. See Shay v. Norton, 48
Illinois, 100 ; Kent v. Lesley, 24
Wisconsin, 654 ; vol. 1, 351.

The defendant in a bill for spe-
cific performance may show by
parol or extrinsic evidence, that
the subject matter of the con-
tract differs materially from what
the complainant had led him to
believe. Where the minds of the
parties do not meet on the same
subject matter, as where the pur-
chaser supposes himself to be buy-
ing what the vendor does not in-
tend to sell, the basis of the contract
fails ; Glassell v. Thomas, 3 Leigh,
113, and with it the right to a spe-
cific performance ; Galverlyy. Wil-
liams, 1 Vesey, Jr. 210; Graham
V. Henderson, 5 Munford, 185 ;
Schmidt v. Livingston, 3 Edwards
Ch. 213 ; Bowen v. Waters, 2 Paine
C. C. R. 1. A chancellor will not
enforce such an agreement, and
may intervene to set it aside. See
Underivood v. West, 43 Illinois,
403 ; WiswallY. Hale, 3 Paige, 183,
ante. But a misrepresentation as to
quantity, quality or value, does not
invalidate the contract ; Powers v.
Mayo, 97 Mass. 180; Martin v.
Hamlin, 18 Michigan, 354 ; Mason
v. Chappell, 15 Grattan, 572;
Juzan V. Toulmin, 9 Alabama,
662 ; unless the vendor said what
he knew to be false, or positively

asserted what he did not know to
be true ; 1 Smith's Lead. Cases, T
Am. ed. 320 ; Tryon v. Wliitmarsh,
1 Metcalf, 1 ; Hazard v. Irivin,
18 Pick. 95. If there be an excep-
tion, it is where one of the parties
has no means of information, ex-
cept the statements made on the
other side. One who sells a tract
of land by dint of an untrue alle-
gation that it contains a rich vein
of ore which has not been opened,
cannot rely on his own good faith
as a reason why the purchaser
should be bound. See Fisher v.
Worrall, 5 W. & S. 483 ; Tyson v.
Passmore, 2 Barr, 122. Under
these circumstances, a court of
equity may reform the contract or
declare it void, as will best pro-
mote the ends of justice.

Although a contract will not
ordinarily be set aside for a mis-
representation falling short of
fraud, it is a sufficient answer to
a bill to enforce the contract, that
the defendant was misled by the
complainant's statements inno-
cently made. Here, as elsewhere,
a chancellor acts on the maxim
that specific performance is of
grace not right, and will stand
aloof unless the circumstances are
such as to render it a duty to in-
tervene ; Boynton v. Hazleboom,
14 Allen, lOT ; Best v. Stowe, 2
Sandford's Cli. 298; Fisher v.
Worrall. Accordingly, where it
appeared that the vendor had re-
presented the land as being in a
different county from that in which
it was really situated, the bill was
dismissed ; Best v. Stowe. The
Yice-Chancellor said that the mis-

1018 SPECIFIC PERFOKMANCE. PAKOL EVIDENCE.

statement need not be fraudulent,
if it is material and deceives the
purchaser.

A false representation renders the
contract voidable, not void. The
injured party may waive the tort,
and ask that the contract shall be
enforced with a compensation or
abatement, for the loss occasioned
by the fraud. Voorheesv.De Meyer,
2 Barbour, 137. But one who is
chargeable with a deceit, cannot
ask that the part affected by the
fraud shall be stricken out and the
rest enforced, because a misrepre-
sentation as to a material particu-
lar, affects the whole. It is well
settled, that the complainant must
come into court with clean hands,
and without any shadow of blame.
Codwan v. Harmer, 18 Vesey, 10 ;
Chremont v. Tasburgh, 1 Jacobs &
Walker,112,ani!(», QSt ; Thompson v.
Todd, 1 Peters C. C. R. 388 ; Boyn-
ton V. UazeJbooni, 14 Allen, 107.

The court cannot make a con-
tract for the parties because that
which they made for themselves is
invalidated by fraud or mistake ;
Olass V. Hulbert, 104 Mass. ; Olas-
sell V. Thomas, 3 Leigh, 113 ; but
it will adapt the relief to the cir-
cumstances as disclosed in proof,
and may substitute compensation
for performance, or couple a de-
cree for specific performance with
an award of compensation. See
Masson's Appeal, 20 P. F. Smith,
26, 29 ; Pratt v. Carroll, 8 Cranch,
47 ; M'Corkle v. Brown, 9 Smedes
& Marshall, 167 ; Anthony v. Left-
wich 3 Randolph, 258 ; Oibbs v.
Champion, 3 Ohio, 338 ; Slaughter
V. Tindale, 1 Littell, 358 ; Wood-
cock V. Bennett, 1 Cowen, 71. A

vendor who misrepresents the
quantitj'' or value of the land, may
be compelled to convey with an
abatement of the price. But such
a decree will not be made in favor
of one whose conduct has not been
fair and honest, or who has, al-
though unintentionally, misled the
other party to the agreement.

It has been seen that the varia-
tion of a written contract by parol
evidence, reduces the whole to
parol. Whether the alleged varia-
tion is cotemporaneous with the
execution of the contract, or the
result of a subsequent modifica-
tion, the bill will fail unless
it can be sustained on the writ-
ten proofs. But the complain-
ant may notwithstanding, suc-
ceed by showing such a part per-
formance, as would take the case
out of the statute if the agreement
was merely oral. If a deed which
should embrace two lots of land,
is so worded as only to convey one
of them, and the grantee goes into
possession of both with the con-
sent of the grantor, the latter can-
not rely on the want of written
evidence as a reason why the error
should not be rectified. That part
of the case is established by a
writing, is not a reason for refus-
ing any relief that would be given,
if the whole depended on the
uncertain memory of witnesses.
Moale V. Buchanan, 11 Gill &
Johnson, 314. The case of Park-
hurst V. Cortland, 1 Johnson Oh.
273, 14 Johnson, 14, was decided
on this principle, which was also
applied in Moale v. Buchanan ;
and the case of Tilton v. TLlton,
9 New Hamp. 385, admits of a

WOOLLAM V. HEARN.

1019

similar explanation. See Glass v.
Eulbert, 102 Mass. 25, 43.

In Moales v. Buchanan, a deed
was executed, and possession de-
livered, as well of the propertj' in-
cluded in the deed, as of other
land which the vendor had agreed
to sell, but which was accidentally
omitted in preparing the convey-
ance. The court said : " The parties
have ineffectually attempted to
execute the contract, the deed of
ITth July having left out a part
of the property agreed and intended
to be conveyed, and the complain-
ant's seek to rectify the mistake,
and specifically enforce the agree-
ment. It is supposed, that by the
established principles of chancery,
this object is not attainable; and
that the evidence ought not to be
let in to show the mistake in the
executed contract, where the com-
plainant is seeking to enforce the
contract ; because it would con-
trovert the statute of frauds, and
charge a party with the sale of
lands, by an agreement not in
writing ; but if the party have so
far executed the contract, by put-
ting the complainant in possession,
that it would be a fraud upon
them to insist that their agree-
ment was not in writing, a case
is presented not within the Stat-
ute of Frauds, so that the statute
is not contravened by letting in
the evidence. And such it would
seem was the opinion of Lord
Redesdale, who, although he held
the doctrine that a complainant in
a bill for a specific performance of
a contract in relation to land,
could not offer evidence of a mis-
take in the agreement, and have it

executed as rectified, still thought
that the contract miglit be exe-
cuted, where there was such a part
performance as took the case out
of the statute. 2 Scho. & Lef. 39.
Had the agreement been entirely
by parol and a part performance,
the complainant would have been
entitled to relief. Shall he be in
a worse situation by having at-
tempted to reduce the whole agree-
ment into the form of a convey-
ance, if he shall make an omission
in the conveyance, by mistake of
an essential part of the agreement.
This is not the case of a party
resting solely on a written con-
tract for the sale of lands, and who
seeks to reform it by parol, and as
reformed to have it executed. But
the complainant rests on posses-
sion, amounting to such a part
performance as withdraws his case
from the operation of the statute,
and then there would be nothing
to distinguish it from the ordinary
case of a complainant going into
chancery to reform a contract on
the ground of mistake."

In like manner an oral modifica-
tion of a written contract may be
enforced, on proof of acts of part
performance, which take the case
out of the statutes. Ligal v. Miller^
2 Vesey, 299 ; Price v. Byer, IT
Id. 356.

The rule does not apply unless
the act of part performance sub-
stantiates the contract in its altered
form; vol. 1, 1040, 1051, 1058. It
is not enough that the grantee en-
ters ; his possession must be such
as cannot be explained and j nstified
by the instrument as it stands, nor
without admitting the alleged va-

1020 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

riation. Possession in conformity
with the deed will not authorize a
decree that the grantor shall con-
vey land not embraced in the
deed. See Allen's Estate, 1 W. &
S. 383. Glass v. Hulbert, 102
Mass. 24, 28, ante. " Possession of
by the purchaser," said Wells, J.,
in the case last cited, " under such
a deed as was given to the
plaintiff, is possession according
to the title thereby conveyed ; and
is not such a possession as to
afford ground for enforcing an
alleged oral agreement to convey
other land claimed to have been
embraced in the same contract
with that conveyed. Moale v.
Buchanan, 11 Gill & Johns. 314.
The plaintiff does not appear to
have been let into actual possession,
of the seventeen acres, nor to
have been induced to do any act
thereon, as owner, under his sup-
posed rights as purchaser. The
conveyance of a portion of the
land is neither a part performance,
nor is it a recognition of the
alleged oral contract, so far as it
relates to the remaining land not
included in the deed. On the
contrary, it is in distinct disregard
and implied disavowal of such a
contract. The deed was given and
accepted in execution of the entire
contract of sale. Its terms are in
literal conformity with the agree-
ment as made." The same doctrine
will be found in Broughton v.
Coffer, 18 Grattan, 184.

By the general rules of the com-
mon law, said Lord Denman, " if
there be a contract which has been
reduced into writing, verbal evi-
dence is not allowed to be given

of what passed between the parties,
either before the written instru-
ment was made, or during the
time that it was in a state of pre-
paration, so as to add to or sub-
tract from, or in any manner to
vary or qualify the written con-
tract ; but after the agreement has
been red uced into writing, it is com-
petent to the parties, at any time
before breach of it, by a new con-
tract not in writing, either alto-
gether to waive, dissolve, or annul
the former agreements, or in any
manner to add to, or subtract
from, or vary or qualify the terms
of it, and thus to make a new
contract ; which is to be proved,
partly by tlie written agreement,
and partly by the subsequent
verbal terms engrafted upon what
will be thus left of the written
agreement."

It is well settled in accordance
with these principles that an execu-
tory written contract may be va-
ried or rescinded orally at any
time before breach ; Foster v.
Dawher, 6 Exchequer, 839 ; Stead
V. Dawber, 10 A. & E. 501 ; 1
Smith's Lead. Ca. 601, 622, T Am.
ed. ; Goss v. Lord Nugent, 5 B. &
Ad. 65. But this rule does not
apply where a writing is required
by statute. An oral modification
of such a contract is invalid, be-
cause it would otherwise be im-
possible to draw the line, and the
whole might ultimately depend on
the memory of witnesses. Every
such change is in effect a new
agreement, and as much within
the statute, as if the original
agreement had not been made ;
Goss V. Lord Nugent, 5 B. & Ad.

WOOLLAM V. HEARN.

1021

65. In Goes v. Lord Nugent, Lord
Denrnan said, tliat the object of
the legislature was " to exclude
oral evidence as to contracts for
the sale of lands, and that any
contract which is sought to be
enforced, must be proved by
writing onl3^ But in the present
case the written contract is not
that which is sought to be en-
forced ; it is a new contract
which the parties have entered
into, and that new contract is to
be proved, partly by the former
written agreement, and partly by
the new verbal agreement ; the pre-
sent contract, therefore, is not a
contract entire!}' of writing."

The rule is established in Eng-
land on this basis, and generally
in the United States ; Goss v.
Lord Nugent; Stead \. Dawher ;
Moore v. Campbell, 10 Exchequer,
325 : Noble v. Ward, Law Kep. 1
Exchequer U1 ; 2 Id. 135; Has-
hrouck V. Tappen, 1 5 Johnson, 200 ;
Brooks V. Wheelock, 11 Pick. 489 ;
Dana v. Hancock, 30 Vermont ;
Gumming v. Arnold, 3 Metcalf,
486 ; Stearns v. Hall, 9 Gushing,
31 ; although a different view was
taken in Gnff v. Penn, 1 M. & S.
21, and still prevails in Massachu-
setts, in cases growing out of the
sale of goods under the ITth sec-
tion of the statute. An action
cannot therefore be maintained on
a contract for the sale of land as
altered by parol, nor can such a
variation be specifically enforced,
unless there has been a " part per-
formance which substantiates the
variation ;" Goucher v. Martin, 9
"Watts, 106 ; Cravener v. Bowser,
4 Barr, 259. But while this rule

precludes the plaintiff' from ob-
taining a decree for the specific
performance of the contract as
modified by parol, it. does not
necessarily apply to the defend-
ant, who may, as we have seen,
show that the prayer of the bill
is inequitable by any means of
proof consistent with the general
rules of evidence, ante, 999 ; Work-
man V. Guthrie, 5 Casey, 495, 510 ;
Stevens v. Cooper, 1 Johnson's
■Ch. 429. Proof that he has
changed his position for the
worse on the faith of an oral
modification of the writing, and
will be a loser if it is not fulfilled,
will consequently lead to a dis-
missal of the bill, unless the plain-
tiff elects to have the contract
executed in its altered form. So
a purchase by a third person on
the faith of an oral waiver or re-
scission, may be a good answer to
a bill for a specific performance ;
Boyce v. M'Cullough, 3 W. & S.
429 ; Workman v. Guthrie, 5 Ca-
sey, 495. And it is a general rule
that acts of part performance maj'
authorize a decree for the specific
performance of the contract as
varied by a subsequent oral stipu-
lation ; 0' Connor v. Spaight, 1
Schoales & Lefroy, 305 ; Devlin
V. Little, 2 Casey, 502. In the
case last cited the court held that
a stipulation in articles of agree-
ment for a title clear of incum-
brances, might be waived by a sub-
sequent parol agreement, that the
vendee should pay the purchase-
money to the mortgagee, and take
a release from him, and that the
court would not suffer the vendor
to fall back on the original agree-

1022 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

ment after the release had been pre-
pared, and was ready for delivery.
The authorities above cited
show that a partial change or
modification of the contract is
invalid, unless reduced to writing;
Pry on Specific Performance, 696 ;
Sugden on Vendors, ch. 4, sect.
9 ; Price v. Dyer, IT Vesey, 356 ;
Moore v. Campbell, 10 Excheq.
323 ; Marahall v. Lynn, 6 M. & W.
Ill ; Noble v. Ward, 1 Law Rep.
Ex. in ; 2 Id, ante, 1020. It has,
nevertheless, been contended that
the whole contract may be re-
scinded or dissolved by parol.
The statute says that the defend-
ant shall not be charged without a
writing ; it does not say that he
shall not be discharged orally.
Accordingly, a parol rescission
before breach seems to be a de-
fence to an action brought on the
contract as such, for the recovery
of damages. The right involved
is a mere chose in action, and not
an estate or interest in land ; Goss
V. Lord Nugent. If a different
conclusion is deduced, it must be
drawn from the spirit of the act,
and not from its letter. " As
there is no clause in the act which
requires tlie dissolution of such
contracts to be in writing, it
would seem that a written con-
tract concerning the sale of lands
may still be waived and aban-
doned by a new agreement not in
writing, so as to prevent either
party from recovering on the con-
tract which was in writing ;" Goss
V. Withers, 5 B. & A. 58. But,
however true this may be at law, it
does not follow that such a waiver is
an answer to a bill lor the specific

performance of a written agree-
ment concerning land. In the
language of Sir William Grant,
" a contract for a purchase is an
equitable title, and the person
having such a title is in equitj' for
most purposes considered as the
complete owner of the estate ; "
Buckle V. Mitchell, 18 Vesey, 111 ;
post notes to Seton v. Slade. If
the premises rise in value, the ad-
vantage is his, and he must bear
the loss if they fall in value, or
are destroyed by fire.

It is difficult to believe that such
an interest can be relinquished bj'
parol consistently with the statute.
In Burthouse v. Grosly, 2 Eq.
Cases, 32, pi. 44 ; Lord Hardwicke
said " an agreement to waive a
contract for the purchase of real
estate is as much an agreement
concerning lands as the original
contract." A similar view was
taken in Bell v. Howard, 9 Mod-
ern, 305 ; and Parteriche v. Pow-
let, 2 Atkyns, 383 ; and the ques-
tion seems to have been regarded
as an open one in Price v. Dyer,
IT Vesey, 356. But the English
doctrine is now said to be "that
a contract in writing, and bj' law
required to be in writing, may in
equity be rescinded by parol ; and a
waiver by parol therefore furnishes
a sufficient answer to a bill for spe-
cific performance," Fry on Specific
Performance, 305, ante, 935.
The same rule has been laid down
in Tennessee and New Hampshire ;
and such decisions may be found
in some of the other States ; Buel
V. Miller, 4 New Hampshire, 196 ;
Walker v. Whaley, 2 Humphreys,
119; England v. Jackson, 3 Id.

WOOLLAM V. HEARN.

1023

584 ; see Workman v. Guthrie, 5
Casey, 495, 509; McCorkle v.
Brown, 9 Smedes & Marshall,
161 ; Tolson v. Tolson, 10 Missouri,
13& ; Bohitford v. Burr, 2 Johnson,
416 ; Ryno v. Darby, 5 C. E. Green,
231 ; although there has generally
been a change of circumstances,
or some act done on the faith of
the waiver and rendering it inequit-
able to enforce the contract.

The doctrine as thus stated is
open to the objection that the
agreement may be dissolved by
means which would not suffice for
its modification. The parties may
rescind the agreement, but they
cannot varj' or annul a particular
clause, although the greater power
ordinarily implies the less. The
right to rescind a written contract
by parol, is accordingly questioned
by Sugden as at variance with the
maxim, unumquodque dissolvitur
eodem ligamine quo ei ligatur.

" The agreement must be in
writing or no action can be main-
tained upon it. Does not this by
a necessary implication, exclude
a parol agreement which is to
waive a written one ? Is not a
like mischief to be guarded against
in either case." Sugden on Ven-
dors, ch. 4, sect. 9, 167 ; Boyce v.
McCullough, 3 W. & S. 439. If
the purchaser transfers his interest
to a third person, the contract
must be in writing ; why should
the rule be different when he re-
sells to the vendor. Ooucher v.
Martin, 9 Watts, 106. An equita-
ble estate is as much shielded by
the statute as if it were legal, and
cannot be divested by a naked
parol agreement, Gaucher v. Mar-

tin, 9 Watts, 106; Cravener v.
Bowser, 4 Barr, 259. It has accord-
ingly been held in Pennsylvania
that an oral waiver without more,
is not an answer to a bill for the
specific performance of a written
contract ; Eapy v. Anderson, 2
Harris, 308, 310. To render such
a rescission valid, it must be
evinced by acts, and not rest
merely in parol. The original
agreement must be cancelled or
surrendered, or the vendee must
surrender tlie possession of the
premises to the vendor ; Lauer v.
Lee, 6 Wright, 165.

The principle is clearly stated in
Goucher v. Martin, 9 Watts, 106,
110 ; "A written agreement may be
waived and discharged by parol.
But in Burthouse v. Grossly, 2 Bq.
Cases Ab. 26 ; the chancellor said
" that he would not say a contract
in writing could not be waived by
parol, yet he should expect, in
such a case, very clear proof; and
the proof in that case he thought
insufficient to discharge a contract
in writing ; and observed that the
statute of frauds and perjuries re-
quires that all contracts and agree-
ments concerning lands, should be
in writing. Now, an agreement to
waive a contract of purchase, is as
much an agreement concerning
land as the original contract." In
Goman v. Salisbury, lYer. 240; the
single point was, whether an agree-
ment made since the statute of
frauds and perj uries, might be dis-
charged by parol ? And the Lord
Keeper held it might, and there-
fore dismissed the bill which was
brought to have the agreement exe-
cuted in specie. In both the

1024 SPECIFIC PERFOEMANCE. PAROL EVIDENCE.

cases cited, it was a mere agree-
ment to convey without any act
done, and even then, notwithstand-
ing the case in 1 Ves. was cited,
the chancellor doubted (inasmuch
as it was a contract concerning
land) whether it could be waived
by parol. But where the contract
is in part executed, and the party
becomes seized of an estate in the
land, I hold it to be a very clear
proposition, that he cannot be de-
prived of his estate on the pretext
that the agreement had been wai-
ved by a parol contract. And
even if this should be held to be
the law, a chancellor would require
the most clear and satisfactory
proof of the contract, and of all
its terms and limitations. But
here the point does not arise, for
there is no proof whatever, of any
waiver of the original bargain, but
the case is presented on the fact of
a contract of sale and a repurchase
of land on diflferent terms and con-
ditions, from the original agree-
ment." See Bleason v. Kaine, 13
P. F. Smith, 339.

It is notwithstanding clear, that
an equity may be rebutted b}' evi-
dence which would not sustain a
decree of specific performance ;
and although a chancellor will not
execute an oral modification, he
may still regard it as a reason why
the contract should not be enforced
in its original form ; Raffenshurger
V. Cullison, i Casey, 426, 429;
Workman v. Guthrie, 5 Id. ; Espy
V. Anderson, 2 Harris, 308, 810.
A parol waiver or rescission execu-
ted by the parties, or followed by
a change of circumstances render-
ing it inequitable to enforce the

contract, is consequently asufficient
answer to a bill for a specific per-
formance ; Lauer v. Lee, 6 Wright,
165; Bowser v. Cramer, 6 P. F.
Smith, 132; especially if third
persons have given value in the
well founded belief that the con-
tract is at an end ; Boyce v. Mc Cul-
lough, 3 W. & S. 429 ; Raffensber-
ger v. Cullison; Workman v.
Guthrie.

In Ong v. Campbell, 6 Watts,
392, the purchaser went into pos-
session under an oral contract.
The vendor subsequently took an
assignment of a mortgage which
he had agreed to extinguish, and
issued a scire facias, which is the
substitute in Pennsylvania for a
bill of foreclosure. It was held that
he had thereby forfeited the right to
a specific performance. Ch. J. Gib-
son said that " an agreement for
the sale of land, may be resisted
for a waiver of it by parol, or for
acts which induce a presumption
of abandonment." The defence
in this case rested on the act ; and
it is established under the subse-
quent decisions, that an oral waiver
without more, is not enough as
against a purchaser who has gone
into actual possession ; Boyce v.
Mc Culloch ; Raffenshurger v.
Cullison ; Workman v. Guthrie,
ante. The principle is the same
whether the contract is oral or in
writing, if it has been so far exe-
cuted as to confer an equitable
right.

Whatever the rule may be when
the rescission is absolute, an agree-
ment by a purchaser who has gone
into possession, that the land shall
revert to the vendor on terms or

WOOLLAM V. HEARN.

1025

conditions which do not appear in
the contract as originall}' made, is
manifestly within the statute, and
invalid unless reduced to writing
or substantiated by an actual sur-
render of the premises; Gaucher
V. Martin ; Meason v. Kaine.

In Moore v. Campbell, 10 Ex-
chequer, 328 ; the parties agreed
orally tliat the goods should be de-
livered at a different place from
that provided by the terms of the
written contract of sale. It was
contended that this was virtually
a rescission, which put an end to
the agreement. The original con-
tract could not be enforced because
a new one had been substituted,
and the new contract was invalid
under the Statute of Frauds. The
court held on the authority of
Marshall v. Lynd, 6 M. & W. 109;
that as the new contract was in-
valid, it did not vary or affect the
existing obligation. It was not a
rescission, because the parties did
not intend to dissolve the agreement
but to perpetuate it in an altered
form. This decision was followed
and confirmed in Noble v. Ward,
L. R. lEx. 117; 2Id.l35. These
cases arose under the ITth section
of the statute, but the rule which
they lay down is applicable to con-
tracts for the sale of land.

The rule that prevention is equiv-
alent to performance, is not ex-
cluded by the Statute of Frauds.
A failure to comply with the terms
of the writing, may consequently
be excused by proving a tender,
and that it was refused. It is an
established principle, that no one
can take advantage of a breach
■which he has caused. The prin-
VOL. II 65

ciple is nearly, if not quite the
same, where the defendant author-
izes or sanctions tlie default which
he sets up as a defence to the con-
tract. In Guff V. Penn, 1 M. &
S. 21, the plaintiff was accordingly
allowed to excuse a failure to de-
liver the goods at the time pre-
scribed, by showing that the delay
was at the defendant's request, and
for his accommodation. Such a
waiver does not vary the contract,
because like a license, it may be
recalled at any time before it is
acted on or executed, but it also
resembles a license in being a jus-
tification for every thing done in
pursuance of it, while still stand-
ing and unrevoked. M'Covibsy.M'-
Kennan, 2 W. & S. 216. Although
this distinction has been overruled
in England, it is generally recog-
nized in the United States, and
may help to reconcile the decisions
in Massachusetts, under the ITth
section of the statute, with the
rule deduced in Goss v. Lord
Nugent, from the 4th. See
Brown v. Wheelock, 1 1 Pick, 439 ;
Pierrepont v. Barnard, 5 Barb.
664; 2 Selden, 279; 2 American
Lead. Cases, 593, 5 ed.

In M' Combs v. McKennan, Ser-
geant, J., said: "The defendant
contends that the contract had
been subsequently varied by the
agreement of the parties, that the
residue of the seed should be de-
livered at Indiana instead of Pitts-
burg ; and therefore the plaintiff's
action should have been assumpsit
on the new contract, and not cove-
nant on the original one. We
think, however, the true principle
is stated in the charge of the

1026 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

court, that this was not so much
an alteration of the original con-
tract, as a waiver or dispensation
on the part of the defendant, of
certain things to be done by the
plaintiff, which were conditions
precedent to be performed by him.
If a party agrees to accept the
thing to be deliyered, at another
time or place than that stipulated,
a performance of this by the other
party is equivalent to a perform-
ance of the original undertaking.''
The principle is the same wlien
the question arises under the Sta-
tute of Frauds. Devling v. Little,
2 Casey, 502.

Proof that the writing was in-
accurately drawn, or that it under-
went a subsequent alteration, does
not necessarily put the complain-
ant out of court, and he may gene-
rally elect to have the contract
performed with the variation.
Bradford v. The Union Bank of
Tennessee, 13 Howard, SY, 69;
Eyno V. Darby, 5 C. E. Green, 231 ;
see Martin v. Pycroft, 2 De Gex,
M. & G. 785. So the contract may
be reformed and enforced at the
instance of the defendant, without
the expense and delay of a cross-
bill, ante. See Sfapylton v. Scott,
13 Vesey, 425 ; Givynn v. Leth-
bridge, 14 Vesey, 585. Bradford
v. The Union Bank of Ten-
nessee. But such relief will not
be granted where the subject mat-
ter of the contract is real estate,
unless the evidence is sufficient to
take the case out of the statute.
Harrison v. Talbot 2 Dana, 268;
Miller v. Ghetwood, 1 Green Ch.
199. In Harrison v. Talbot, the
court dismissed a cross-bill filed to

rectify the contract, and enforce
it as reformed, because the de-
fendant could not in the attitude
of a complainant, compel a specific
execution of the contract as
varied or modified by parol evi-
dence, nor otherwise than accord-
ing to the written memorandum of
the sale. The line is accurately
drawn in the following citation
from the opinion of Sir Wm.
Grant, in Winch v. Winchester, 1 V.
& B. 311. "If the defendant in-
sists that the evidence being re-
ceived, he will be entitled to have
the contract performed with an
abatement of the price, I think
it not admissible for that purpose
as the court cannot execute in his
favor a written agreement, with a
variation introduced by parol tes-
timony ; but, if he saj-s he was de-
ceived by this representation, and
therefore was induced by fraud to
enter into the contract, and offers
the evidence for the purpose of
getting rid of such contract alto-
gether, for that purpose, I think it
ma}' be received."

It is a matter of some nicety to
determine, when evidence of a
parol variation of the contract
will deprive the plaintiff of all
claim to a specific performance, or
merely put him to his election be-
tween a dismissal of the bill and
the performance of the contract as
modified by the defence. A plaintiff
cannot set up one case in pleading
and have judgment on another as
disclosed in evidence ; Allen v.
Burke, 1 Maryland Ch. 584 ; Sims
V. M'Hwen, 21 Alabama, ,184, vol.
1, 1051. It is immaterial in this
regard whether the variance ap-

■ffOOLLAM V. HEAKN.

1027

pears from his evidence or from
the defendant's. Proof that the
allegata are false in an essential
particular, is accordingly a de-
fence, unless the defect can be
cured by an amendment ; Har-
ris V. Knickerbacker, 5 Wend.
638, 1 Paige, 209 ; Bellows v. Stone,
14 New Hampshire, 1 '75 ; Craigey.
Graige,6 Iredell Bq. 191 ; Phillips
V. Thompson, 1 Johnson Ch. 131,
146 ; Home v. Garr, 1 Sumner,
173; Parrish r. Koons, 1 Parsons'
Equity Cases, 79 ; Forsyth v. Clark,
3 Wend. 637 ; Sims v. M'Ewen,
21 Alabama, 184. A specific per-
formance will not therefore be de-
creed where there is a material
difference between the contract as
set forth in the bill, and that con-
fessed in the answer or appearing
in the proofs. Harris v. Knicker-
hacker. In the case last cited, the
complainant alleged that the pur-
chase-money was to be paid in
seven annual instalments, with in-
terest annually from the date of
the agreement. The defendant
denied that he had agreed to be
liable for interest, although ad-
mitting the contract in all other
respects. This was held to be a
material variance, which precluded
a decree for specific performance;
In Lyndsay v. Lynch, 2 Sch. & Lef.
1, the prayer was for the execu-
tion of a lease for three lives ; the
answer admitted an agreement for
a lease for one life. The com-
plainant amended his bill, and
prayed for a decree in the alterna-
tive, for a lease for three lives or
for one life, and it was refused.

It results from these authorities,
and the general course of decision.

that where the contract alleged in
the bill is denied in the answer,
and not established by the evi-
dence, the defect is fatal and the
complainant will. not ordinarily be
suffered to amend. The case is
widely different where the defend-
ant admits the contract, and seeks
to vary it by parol. Such a de-
fence is an appeal from the strict
letter of the law to equity. Whe-
ther it should be allowed and on
what terms, is a question depend-
ing on the circumstances in each
case. It may be a ground for dis-
missing the bill, or simply for
modifying the relief accorded. A
complainant who fails in the en-
deavor to establish an unjust de-
mand, should not readily be allowed
to insist on a different case
presented by the defendant's
answer or proofs. See Clowes v.
Higginson, 1 Vesey & Beames,
524 ; Pilling v. Armitage, 12
Vesey, 78 ; Lindsay v. Lynch.
So one who makes a false repre-
sentation concerning a pa^'ticu-
lar clause, cannot strike that out
and have a specific performance
of the residue, aiite, 987 ; althougli
a variance which is consistent with
good faith, and leaves the sub-
stance of the contract intact, will
not preclude the enforcement of
the contract as gathered from the
evidence adduced on either side.
Bamsbottom v. Gosden, 1 Vesey &
Beames, 165; The London Rail-
way Go. v. Winter, 1 Craig & Phil-
lips, 57 ; Martin v. Pycroft, 2 D.
G. M. & G. 788 ; 11 English Law
& Equity, 110; 15 Id. 376. The
better way is to plead the transac-
tion according to the truth, setting

1028 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

forth the contract as reduced to
writing, and also an^^ promise or
representation by which it has been
varied or moditied, and then leave
the defendant to elect whether he
■will abide by the written instru-
ment, or accept the variation.
Martin v. Pycroft; Ives y. Hazard,
4 Rhode Island, 14. But a failure
to pursue this course, is not con-
clusive against the plaintiff, and
the court vaay in the exercise of a
sound discretion, base a decree in
his favor on the defendant's case,
although differing materially from
that alleged in the bill. Bradford
V. The Union Bank, 13 Howard,
51 ; Wallace v. Broirrt, 2 Stockton
Ch. 308; Ryno v. Darby, 5 C. E.
Green, 230. In Ryno v. Barby, the
coraplainant was accordingly held
entitled to a decree for the specific
performance of the substituted
contract alleged in the answer,
without amending the bill, and
the same rule was applied in
M' Comas v. Easley, 21 Grattan,
31. A specific performance may
in like manner be decreed in favor
of the defendant on his answer and
proofs, without the expense and
delay of a cross-bill. Bradford v.
The Union Bank of Tennessee, \'i
Howard, 5f, 69; see Spurrier v.
Fitzgerald, 6 Vesey, 548 ; Fife v.
Clayton, 13 Id. 546 ; Gwynn v.
Lethbridge, 14 Id. 585.

To justify a decree of spocifie
performance the contract must ap-
pear with reasonable certainty
from tlie written evidence. This
maj' consist of letters or memo-
randa, which, read together, make
a consistent whole ; see Bell v.
Bruen, 1 Howard, 169, lt3 ; Neuf-

ville V. Steward, 1 Hill Oh. 159 ;
Tallman v. Franklin, 4 Kernan,
584; Dobell v. Hutchinson, 3 A.
& E. 365 ; 1 Smith's Lead, cases,
497 ; 1 Am. ed. ; 2 Id. 256 ;
although if there is an ambi-
guity or hiatus, witnesses can-
not be called to supply the defect
or make that plain which the par-
ties have left in doubt. No chain
of proof can be stronger than its
weakest link, and an agreement
which depends in Any material
particular on oral testimony is for
all legal purposes merelj' parol ;
Stoddertw Tuck, 5 Maryland, 18;
Willis V. Forney, 1 Busbee Eq.
256 ; AdayY. Echols, 18 Alabama,
353 ; Steel v. Stamps, 2 Sneed,
172 ; Talman v. Franklin, 3 Duer,
395; Soles v. Hickman, 8 Harris,
180; Farivell v. Loivther, 18 Illi-
nois, 253; McClintock v. Laine,

22 Michigan, 212 ; Taylor v. Wil-
liams, 45 Missouri, 80 ; Baker v.
Glass, 6 Munford, 212 ; Graham
V. Coll, 5 Id. 396 ; Nicholls v. Wil-
liams, 7 C. E. Green, 63 ; Minium
V. Baylis, 33 California, 129 ; The
Canton Co. v. The R. R. Co., 21
Id. 395 ; Foot v. WeM, 59 Barb.
38 ; Labdell v. Labdell, 36 New
York, 327 ; Buckmaster v. Thomp-
son, lb. 558 ; Waring v. Ayres, 40
Id. 457 ; Madeira v. Hopkins, 12
B. Monroe, 595 ; Jordan v. Beaton,

23 Arkansas, 704 ; Munsell v.
iorer, 21 Michigan, 491 ; 1 Smith's
Lead. Cases, 497 ; 2 Id. 259 ; vol.
1, 1058. The law was so held by
Chancellor Kent, in Parkhurst v.
Van Cortland, 1 Johnson Ch.
273 ; 14 Johnson, 32, and although
the decree was reversed by
the Court of Errors, it was be-

W 0 0 L T. A M V

n E A R \

1029

cause the contract had been taken
out of the statute by part per-
formance. The rule was applied
in Seitzinger v. Eidgway, 4 W. &
S. 412; and again in Parrish v.
Koo)is, Parson's Eq. Cases, 19 :
" To constitute an adequate writ-
ten agreement for the sale of lands
within the statute, it is necessary
that it should state the terms of
the contract with reasonable cer-
tainty, so that the substance of it
can be made to appear and be un-
derstood from the writing itself,
without having recourse to parol
proof. An agreement defective in
certainty, cannot be supplied by
parol proof, because that would at
once open the door to perjury, and
introduce all the mischiefs which
the statute was intended to pi'e-
vent. A contract cannot rest
partly in writing and partly in
parol. Unless the essential terms
of the bargain and sale can be
ascertained from the writing itself,
or by a reference contained in it
to something else, the writing is
not a compliance with the statute ;
Parkhurst v. Van Cortland, 1
John Ch. R. 213. If a contract
be vague and uncertain, a court of
equity will not exercise its extra-
ordinary jurisdiction, but leave the
party to his legal remedy ; Golson
V. T/icon^json, 2 Wheat. 341 ; Abeel
V. Radcliff, 13 John. R. 291. In
Seed's Heirs v. Hornback, 4 J. J.
Marsh. 311, it was ruled that
specific execution of a contract will
not be enforced, unless the parties
have described and identified the
particular tract, or unless the con.
tract furnishes the means of iden-
tifying with certainty the land to

be conveyed. Other American
cases on the doctrine will be found
in Ellis V. Deadman's Heirs, 4
Bibb. 461 ; Kendall v. Almy, 2
Sumner, 218; Garr v. Dural, 14
Peters, 11 ■ Abeel v. Raddiff, 13
John. R. 291. The English cases
on this subject are cited and com-
mented upon in Sugden on Ven-
dors, vol. 1, p. 118. And whether
the instrument from which the
contract is sought to be deduced
is a receipt for a deposit, earnest,
or purchase-money, it must con-
tain the same requisites to bring
it within the statute. In Blagden
V. Bradbear, 12 Yesey, 466, it was
held by the master of the rolls,
that although an auctioneer's re-
ceipt for the de|)0sit may amount
to a sufficient note or memoran-
dum of an agreement within the
statute, yet for that purpose
the receipt must contain in itself,
or by reference to something else,
what the agreement is. This doc-
trine had previously been strongly
intimated by Lord Eldon, in Coles
V. Trecothick, 9 Ves. 252, 253.

" The application of these prin-
ciples to the case before the couit,
seems decisive against the plain-
tiff. The only written memoranda
of the original contract are found
in the defendant's proposal and
the plaintiff's receipt, which are
considered by the plaintiff as form-
ing one instrument. The absolute
insufficiency of these documents
to constitute anj' definite contract
in themselves, appears best from
simply reciting them. They are
as follows : ' The most is 3100,
subject to 3000 mortgage. No
taxes or other liens (except the

1030 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

mortgage) will be allowed. Re-
ceived Ten Dollars on account of
the purchase. The mortgage to
be removed from the Fifth street
lot as soon as the title is made,
witliout delay. R. A. Parrish :
For Isaac Koons, Richard Tea.'
Can anything be extracted ■ from
such papers, from which a court of
chancery can advisedly decree a
specific performance ? Where is
the estate bargained for? What
is the quantity of land to be con-
veyed ? What is the kind of
estate to be conveyed ? Without
associating these papers with the
parol evidence in the cause, it is
impossible to extract anything in-
telligible from them. This, as has
been seen, is wholly inadmissible;
Parkhurst v. Van Courtland,
supi-a. Every agreement wiiieh
is required to be in writing by
the Statute of Frauds, must be
certain in itself, or capable of
being made so by reference to
something else, whereby the terms
can be ascertained with reasonable
precision, or it cannot be carried
into efiect."

In Soles V. Hickman, 8 Harris,
180, a memorandum acknowledg-
ing the receipt of " $30 in part
payment of a lot in Keesport, Xo.
34," was held too vague to be
specifically enforced, because it
did not state how much more was
to be paid, or when.

The land, the price, and the
time of payment, must be desig-
nated witli a clearness which
leaves nothing to conjecture ;
Carr- v. The Passaic Land Co., 4
C. E. Green, 424 ; T Id. 25 ; Mc-
Kihbin v. Brown, 1 M'Carter, 13 ;

Bydev. Ooofier, 13 Richardson Eq.
250 ; and an agreement to sell for
a sum, or on a credit to be subse-
quently arranged or settled, will
not be specifically enforced unless
there is written proof that the par-
ties came to terms, and what the
determination was; M'Kibbin v.
Brown ; Welsh v. Bayand, 6 C. E.
Green, 186 ; Nichols v. Williams,
1 C. E. Green, 63; Hyde v.
Cooper.

If the agreement is certain to a
common intent, more will not be
required ; see Broom v. Batchelor,
1 H. & N. 255 ; Barry v. Coombe,
1 Peters, 640 ; White v. Hormann,
51 Illinois, 243 ; and in Matteson
V. Sanjield, 27 Wisconsin, 611, a
letter oifering certain land for
"three thousand dollars, $1,000
down, and $500 annually with in-
terest, until the whole is paid ; to
be secured by mortgage," was held
to be within this principle as im-
pl3'ing that the conveyance was to
be made to the purchaser, and the
mortgage given by him. The
court may, moreover, go outside
of the writing for the purpose of
ascertaining and identifj'ing the
subject matter ; and a contract to
sell " my farm" or " the mill" is
sufficiently certain, if it appears
that the vendor has but one such
building or tract of land ; Fish v.
Hubbard, 21 Wend. 652; Robe-
son V. Hornbaker, 2 Green Ch. 60 ;
1 Smith's Tjeading Cases, 496 ; 2
Id. 256, 1 Am. ed. See Shortride
V. Cheek, 1 A. & E. 51 ; Haigh v.
Brooks, 10 A. & E. 309 ; Aldridge
V. Eshelman, 10 Wright, 420 ;
Barry v. Coombe, 1 Peters, 640.

In the case last cited " Coombe

WOOLLAM V. HBARN.

1031

made out a statement of an ac-
count between himself and Barry,
consisting of various items,
amounting to a large sum. In
this statement he credits Barry as
follows : " By my purchase of
your half E. B. wharf and prem-
ises this day, as agreed on be-
tween us, $1,578.63." This paper
was signed by Coombe, each party
having a copy. On a bill filed for
a specific performance, Barry set
up the uncertainty of the agree-
ment, and relied on the Statute of
Frauds. The court said, "that
for anything that appeared on the
face of the instrument, E. B. wharf
may be as definitive a description
of locality as F. street ; and then
there would be no ambiguity, un-
less the bargainor had more tlian
one house in F. street, like the
manors of Dale put in the old
books ;" Roheson v. Hornhaker.

In like manner, the considera-
tion of a contract within tlie stat-
ute may be identified by the aid
of parol evidence. Such proof is
always admissible to acquaint
the judge with every material cir-
cumstance known to the parties ;
Lawrence v. M'Gabnont, 1 Bl. C.
C. 232 ; Aldridge v. Hahelman, 10
Wright, 420 ; Goldshede v. Swan,
1 Exchequer, 154 ; 2 Smith's Lead-
ing Cases, 256, 1 Am. ed., ante,
674. These cases arose under the
fourth section of the statute, but
are equally applicable where land
is the subject matter of the con-
tract.

On the other hand in Hammer
V. M'Eldowney, 10 Wright, 334, a
bill to enforce the specific per-
formance of a contract for the sale

of " the houses on Smithfleld
street" was dismissed on demurrer,
although it averred that the de-
fendant had two houses on Smith-
field street, and that he owned no
otlier property on the said street ;
the ground of the judgment ap-
parently being, that the lots ex-
tended at the rear to an alley, and
that it did not appear how much
of them was to be set off to the
complainant, or whether he was to
have the whole.

An agreement to sell at a fair
valuation, or appraisment, is suffi-
ciently certain, and if the parties
cannot agree on who shall fix the
price, it may be ascertained by a
master ; 3 De G. M. & G. 24 ; Van
Doren v. Robinson, 1 C. E. Green,
256 ; Whitlock v. Duffield, 1 Hoff-
man Ch. 130 ; City of Providence
V. St. John''s Lodge, 2 Rhode
Island, 46 ; Dike v. Greene, 4 Id.
285. Where, however, the contract
designates a mode of ascertaining
the price which fails in consequence
of the disagreement or refusal of
the arbitrators, a court of equity
cannot remedy the defect ; Nor-
fleet V. Southall, 1 Murphy, 189.
See Dike v. Greene, 4 Rhode
Island, 285, 289 ; Graham v. Call,

5 Munford, 396 ; Baker v. Glass,

6 Id 212.

It is an established legal prin-
ciple, that if a consideration is
shown to'exist, the court will not
inquire wliether it is adequate ;
Kidder v. Chamberlain, 41 Ver-
mont, 62 ; Viele v. The Troy and
Boston Rail Road, 21 Barb. 381 ;
Worth V. Case, 42 New York,
362. The rule prevails in equity
as well as at law, and a chancellor

1032 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

will not pronounce a contract void
or direct that it shall be given up
or cancelled for mere inadequacy
aside from fraud ; Eyre v. Potter^
15 Howard, 42 ; Davidson v. Little,
10 Harris, 245, 252 ; Harris v.
Tyson, 12 Id. 341, 360 ; Cribbins
V. Blarkwood, 13 Grattan, 495. It
has nevertheless been contended,
that as specific performance is dis-
cretionary, it should not be decreed
where the bargain is hard and un-
equal. A manifest disproportion
between price ahd value, is in this
aspect of tlie question a defence
to a bill to enforce the contract.
It has accordingly been said, that
a specific performance may be re-
fused on the single ground of in-
adequacy ; Clithcrall v. Ogilvie, 1
Dessaussure, 251 ; Gasque v.
Sinall, 2 Strobliart Eq. 12;
Clements v. Ileid, 9 Sniedes &
Marshall, 535 ; although there is
no pretence of fraud, surprise, or
undue influence ; Lucas v. Barrett,
1 Iowa, 510. It has been contended
on the other hand with more rea-
son, that as a sale at an under-
value is obligatory in law and
morals, it should be enforced by a
chancellor if there is' no other ob-
jection. Tiie maxim caveat emptor,
is an auswer to argument drawn
from the inadequacy of the con-
sideration unless so gross as to be
evidence of fraud, or where there
is actual fraud, or undire advan-
tage taken of iuibecility or ignor-
ance; Crocker v. Young, Rice,
30; Seymour v. Delancy, 6 John-
son oil. 222; 3 Cowen, 445;
Barter v. Gordon, 2 Hill Ch. 121 ;
Fripp V. Fripp, Rice Eq. 84 ;
The Western R. R. Corporation v.

BabcocJe, 6 Metcalf, 346; Burirh
V. Hogge, Harrington Ch. 31 ;
Harrison v. Town, 11 Missouri.
231; Real v. Vailee, 12 Id. 126;
Viele V. The Troy & Boston Rail
Road, 21 Barbour, 381 ; Lee v.
Kirby, 104 Mass. 420 ; Westervelt
v. Matheson, 1 Hofl=nian Ch. 31;
Garnet v. Macon, 2 Brock, 185 ;
Calhcart v. Robinson, 5 Peters,
263; Barton Y. Sehaffer, 21 Grat-
tan, 414 ; Rodman v. ZiUy, Saxton,
320 ; Hale v. Wilkinson, 21 Grat-
tan, 151 ; Osgood v. Franklin, 2
Johnson Ch. ; 14 Johnson, 521 ;
Black V. Cord, 2 Harris & Gill, 100.
In Adams v. Weare, 1 Brown Ch.
561, Lord Thurlow said, tliat no
case could be found where the
court had refused a specific per-
formance on such a ground, as be-
tween parties wlio liad contracted
with tlieir eyes perfectly open ; and
if this dictum did not accurately
reflect the past, it is sustained by
the subsequent course of decision.
In Seymour v. Delancy, Ch.
Kent held, that " inadequacy of
price, may of itself and without
fraud or other ingredient, be suf-
ficient to stay the power of the
court to enforce a specific per-
formance of a contract to sell
land ; although it may be true,
that mere inadequacy independent
of other circumstances, is not suf-
ficient to set aside the transaction."
A court of equity " should not en-
force a hard, unreasonable, or un-
equal bargain, but ratlier leave it
to a jury at law to investigate or
apportion the damages as the posi-
tion of the case shall appear ; "
Willan V. Willan, 16 Yesej^, 83.
See Campbell v. Spencer, 2 Binney, ■

WOOLLAM V. HEARN.

1033

133. These rlicta must he taken in
connection with the facts. The
controversy grew out of an agree-
ment to exchange a farm for an
undivided third of a lot in the vil-
lage of Xewburg. The testimony
as to value was conflicting, but
the chancellor arrived at the con-
clusion, that the farm was worth
twice as mucli as the eomphiinant's
share of the lot. It also appeared
that the defendant was habitually
intemperate, although lie was not
shown to have been incapable of
transacting business when free
from the influence of liquor. This
gave rise to the inference, that " his
mind must have felt the pernicious
effects of that habit and have lost
its original strength." Thus re-
garded, the contract was clearly
one which a court of equity should
decline to enforce.

The court of appeals took a dif-
ferent view of the evidence, wliich
led to a corresponding change in
the legal result. In their judg-
ment, the difierenoe between what
the defendant agreed to give, and
what he was to receive, did not ex-
ceed one-sixth. It did not appear
tliat the natural vigor of his in-
tellect had been impaired by his
excesses, or that he was intoxi-
cated at the time of entering into
the contract. He proposed the ex-
change, and it was not concluded
until after a negotiation of several
weeks. If he made a disadvan-
tageous bargain, it could not be
imputed as a fault to the com-
plainant, or be a ground for refus-
ing to exercise the established
jurisdiction of the court. The
decree was consequently reversed,

and a specific performance decreed
in accordance with the prayer of
the bill.

The authorities are not insus-
ceptible of being reduced to a
common basis. It is universally
conceded that a chancellor should
not enforce a hard and unconscien-
tious bargain, and the difficulty is
to know what bargains are within
this principle. The vendor is ob-
viously entitled to determine what
he will accept, and the purchaser
how much it is worth his while to
give. If a price is deliberately
agreed upon, the question will not
be reconsidered in either jurisdic-
tion ; Davidson v. Little, 10 Har-
ris, 245, 347 ; Harris v. Tyson, 12
Id. 360. " Inadequacy of price is
not fraud. A man may be as
honest in making a profitable bar-
gain as a bad one, and the law
does not require him to pay a full
price, if the person he deals with
is willing to take less. The owner
of property may sell it for very
little, or give it away for nothing,
if he thinks fit ; and however un-
reasonable his conduct may seem,
his will alone is sufficient to vouch
the act ;" Davidson v. Little, 10
Harris, 245, 251. But this is en-
tirely consistent with the proposi-
tion that gross inadequacy gives
rise to a presumption, which shifts
the burden of proof; Davidson v.
Little; Seymour v. Delancey, 3
Cowen, 445, 529. If the com-
plainant can succeed in demon-
strating the fairness of the trans-
action, a specific performance will
not be refused merely on the
ground of inadequacy.

The doctrine is not at variance

103i SPECIFIC PERFORMANCE. PAKOL EVIDENCE.

with the original decree in Sey-
mour V. Delancey, or the judg-
ment of reversal pronounced by
the court above. The difference
was rather as to figures than prin-
ciple. If the exchange had been
one which no fair man could have
proposed, and which no man of
sound judgment would have ac-
cepted, both courts might have
concurred in dismissing the bill.
But inasmuch as the value on
either side was to a great extent
speculative, the court might prop-
erly decline to be wiser than the
parties themselves.

There is another consideration
which influenced .the judgment of
the court of error. The defendant
owned two-thirds of the lot, and
his motive for making the ex-
change was to acquire the residue.
The case, therefore, came within
the rule that one who offers a pre-
tium affectionis, or fancy price,
cannot allege that it is in excess of
the market value. He may want
the land to build on, because it is
near his dwelling, or as a means
of accomplishing some other ob-
ject on which he has set his heart.
A contract made under the influ-
ence of such motives is not less
obligatory, because the price is
liigher than could be obtained from
any other purchaser ; see Coles v.
Trecothick, 9 Vesey, 246.

Where the consideration is both
good and valuable, as in the case
of a sale to a child or relative, the
unfavorable inference that might
otherwise be drawn from the in-
adequacy of the ]3rice is repelled,
and the contract may be specifi-
cally enforced ; Fripp v. Fripp),

1 Rice Eq. 84 ; White v. Thomp-
son, 1 Dev. & Bat. Eq. 493;
Shepherd v. Bevin, 9 Gill, 33, 39 ;
4 Maryland Ch. 133; Haines v.
Haines, 6 Maryland, 435.

The agreement, said Frick, J., in
Shepherd v. Bevin et al., " is not
between strangers, but the parties
are mother and son, in the closest
relation of life. The contract has
the meritorious consideration of
love and affection, superadded to
the valuable consideration which
passed between them. Could the
appellant reasonably have declined
the proposition to release the
amount of his claim against the
mother, when coming from her-
self? And, as her own proposi-
tion to her child, of what weight
is the objection on the score of the
inadequacy of the price proposed
and accepted by herself? No
small part of the consideration
besides, acting upon her motives,
was the desire to gratify the last
expressed wishes of her deceased
husband. And in an agreement
made by a parent with a child, a
slight consideration will be suffi-
cient to support it ; 4 H & McH.
258. The case of Hays v. Hollis,
8 Gill, 35Y, decided at the present
terra of this court, is, upon this
point, precisely parallel, and ob-
viates all further remarks upon
the objection to the adequacy of
consideration in the case now be-
fore us."

It was, nevertheless, said in
Callaghan v. Callaghan, 8 CI. &
Fin. STi, that such evidence brings
the case within the rule, that a
court of equity will not enforce a
voluntary contract ; see notes to

WOOLLAM V. HEARN.

1035

Ellison V. Ellison,vo\. 1, 420, and
there can be no doubt that near
relationship, coupled with great
disproportion between price and
value, may give rise to a presump-
tion of undue influence, which will
invalidate the sale; Whelan v.
Whelan, 3 Cowen, 5S1.

The inadequacy of the consid-
eration must be judged by the
state of things when the contract
is made, and not in the light of
subsequent events ; Lee v. Kirby,
104 Mass. 420. Hence, where land
was bought, and paid for in Con-
federate money, the court com-
pelled the execution of a deed,
although the notes in which the
paj^ment was made had not only
depreciated, but become worthless
before the hearing ; Hale v. Wil-
kinson, 21 Grattan, 75. In this
case, however, the complainant
showed himself ready, prompt and
eager, and the case would have
been decided the other way, if he
had waited for the fall of the
Confederacy to make the tender ;
Whitaker v. Bond, 63 North Caro-
lina ; Borton v. Schaffer, 21 Grat-
tan, 414. See M'Garty v. Kyle,
4 Caldwell, 349 ; Hudson v. King,
2 Heiskell, 561.

The effect of inadequacy of
price on the right to specific
performance, depends to a great
extent on the circumstances of
the case as disclosed by the
evidence. Standing alone, it may
be nothing ; but it amounts to
much when coupled with proof
that the losing party was under
the control or influence of the
other, or that from ignorance,
weakness of mind, or the pressure

of debt, he could rot exercise
a sound or unbiased judgment ;
Powers V. Hale, 5 Foster, 145 ;
Cathcart v. Bohinson, 5 Peters,
264 ; Byers v. Surget, 19 Howard,
303 ; Brooke v. Berry, 2 Gill &
J. 83 ; Benton v. Shreeve, 4 Indi-
ana, 66. In Glitherall v. Ogilvie,
1 Dessaussure, 25"?, the court re-
fused to execute an unequal con-
tract between an inexperienced
youth and a man of mature life,
and a similar decision was made
in Gasque v. Small, 2 Strobhart Eq.
72. The same principle was ap-
plied in Graham v. Pancoast,
6 Casey, 89, where the inca-
pacity arose from old age. On
tlie other hand, a court of equity
may disregard the unfavorable in-
ference arising from a dispropor-
tion between price and value, on
proof that both parties knew what
they were about, and entered into
the contract with their eyes open,
or that the contract was prompted
by friendship or afiection, and
should not be viewed as a mere
business transaction ; Shepherd v.
Bevin, 9 Gill, 32 ; 4 Maryland Ch.
133 ; Haines v. Haines, 6 Mary-
land, 435 ; Fripp v. Fripp, 1 Rice,
Eq. 84.

Where one buys at auction, or
at a judicial sale, fraud will not
be inferred from inadequacy of
price, however gross ; Damon v.
Damon, T Vesey, 30 ; Ayers v.
Baumgarten, 15 Illinois, 444, al-
though the transaction may be set
aside on proof of actual fraud, or
that the buyer controlled the sale,
and was at once vendor and pur-
chaser; Byers v. Surget, 19 How-
ard, 309.

1036 SPECIFIC PERFORMANCE. PAROL EVIDENCE.

All the authorities agree that
inadequacy of price throws a
doubt on the transaction, and
may, wlien coupled with other cir-
cumstances, be a ground for refus-
ing specific performance, although
the evidence does not establish
actual fraud. There are many de-
greed of mental weakness short of
the entire want of a disposing
mind, and memory, which renders
a deed, or will merely void. A
contract just and equal in all its
part§ may be enforced, although
the vendor is, from age, disease, or
other causes, below the average
capacity of mankind. But where
incapacity and inadequacy go
hand in hand, a chancellor may
refuse to enforce the contract, al-
though the purchaser was guilty of
no greater fault than making a hard
and unconscientious bargain ; Gra-
ham v. Pancoaat, 6 Case}', 89.

A contract made under the in-
fluence of the complete intoxica-
tion, which suspends the reason,
is invalid, and should be so
treated whether the question
arises at law or in equity ; Pren-
tiss V. Acorn, 2 Paige, SO ; Donel-
son, Adm'r, v. Posey, 13 Alabama,
152 ; Gore v. Gibson, 13 M. & W.
626 ; Clifton v. Davis, 1 Parsons'
Eq. 31. Such a condition is a
temporary madness precluding the
assent without which the most
solemn instrument is an empty
form ; Clifton v. Davis. Nor is
this all ; to contract with one who
from whatever cause, is unable to
act understandingly on any propo-
sition, is a wrong nearly akiu to
fraud ; Gore v. Gibson. It is an
obvious inference that such a con-

tract should not be specifically
enforced; Pr^ntiss v. Acorn, 2
Paige, 30 ; Shaw v. Thackeray , 1
Smale & Giflford, 53Y.

It has, nevertheless, been held
in some instances, that intoxica-
tion is not an answer to a bill for
specific performance, without the
aid of other circumstances ; Rod-
man V. Zille.y, Saxton, Bq. ; Pit-
tinger's Adm'r v. Pittinger, 2
Green's Ch. 156.

The case of Shaw v. Thackray,
1 Smale & Giff'ord, 53Y ; might
seem to incline in this direction,
but reallj' turned on the point, that
the bill was filed against a third
person, who had taken advantage of
the vendor's incapacity, to obtain a
conveyance of the premises which
he had already sold to the com-
plainant. In Pittinger v. Pittin-
ger, the chancellor said that " sup-
posing the purchaser to haA^e been
so much intoxicated at the time of
the sale as not to understand what
he was doing ; it would still be in-
cumbent on him to make out that
such intoxication was procured or
induced by the vendor, or that
some undue advantage was taken
of him while in that situation."
Stated as a general proposition,
this would have a tendency to
mislead. To induce or even suffer
one who has lost the power of
judging what his necessities re-
quire, to part with his property or
convert it into another shay.e, is
unfair, although a full price is
given and no false representation
made. The explanation of the
decision in Pittinger v. Pittinger,
is that the purchaser bought at a
public sale whither he had gone

WOOLLAM V. HEARN.

1037

■with a view to bidding ; that the
objection was raised after his
death ; and finally that it did not
sufficiently appear that he was
BO much under the influence of
liquor as to be unable to exercise
his judgment.

Whatever the rule may be under
these circumstances, it is settled
that one who induces another to
drink, with a view of obtaining
his assent, or takes advantage of
the helplessness of intoxication,
to impose hard and disadvanta-
geous terms, is guilty of a fraud
justifying a rescission of the con-
tract, and which will for a still
stronger reason jDreclude a decree
of specific performance ; Crane v.
Conklin, Saxton, 346 ; Hotchkiss
V. Forston, 1 Yerger, 67 ; Reynolds
v. Weller, 1 Washington, 164;
Lavalelte v. Sage, 29 Conn. 517 ;
Whitesides v. Greenlee, 2 Dev. Ch.
152 ; Morrison v. McLeod, 2 Dev.
& Bat. Eq. 221 ; Calloway v.
Witherspoon, 5 Iredell Eq. 128 ;
Prentiss v. Acorn, 2 Paige, 30 ;
Shaw V. Thackeray.

A chancellor does not readly in-
tervene to set aside a grant, sale,
or other executed agreement,
on the ground of intoxication,
where it does not appear from in-
adequacy of price or other circum-
stances, that the defendant took ad-
vantage of the complainant's con-
dition, and the inclination of the
authorities seems to be against
such an exercise of jurisdiction ;
Cook V. Claypoole, 18 Vesey, 12 ;
Shaw V. Thackeray ; one rea-
son being that the question
■whether the grantor knew what
he was about and could assent

understandingly, is one of fact
which should be deteiTuined with
the aid of a jury. A man may be
under the influence of liquor, and
yet shrewd enough to take care of
himself, or play on the weaknesses
of others ; nor can it alwaj-s be
readily ascertained whether such
a defence has a real foundation, or
is an after thought to get rid of a
bargain which does not suit the
complainant. A deed or contract
executed bj^ one who has become
insane through habitual excess,
presents a different case, and may
be declared void in a court of law or
by a chancellor ; Clifton v. Davis,
1 Parsons Eq. 31 ; Lavalette v.
Sage, 5 Conn. 77.

The mere circumstance that one
is of less than ordinary strength of
mind, from a congenital defect
from the inroads of disease, or
from the abuse of ardent spirits, is
not necessarily inconsistent with
the power to contract ; Graham v.
Pancoasl, 6 Casey, 89; Nace v.
Boyer, lb. 99. It is an established
principle that legal capacity may
co-exist with mental weakness ;
Greer v. Greer, 9 Grattan, 330 ;
Stewart v. Lispenard, 26 Wend.
255.

A different rule would be cruel
to a considerable portion of man-
kind, by depriving them of the
power to make agreements which
may be essential to their welfare
in life. A chancellor will not
therefore order a deed to be deliv-
ered up or cancelled, merely be-
cause the grantor is of feeble
intellect, imless there is something
in the transaction to indicate that
the opportunity afforded by his

1038 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

weakness was abused ; Oraham v.
Pancoast, 6 Casey, 89 ; Nace v.
Boyer, lb. 99 ; Thomas v. Shep-
pard, 2 McCorcl Ch. 36 ; and it
has been held that contracts with
such persons may be specifically
enforced when fair and equal, and
made with full opportunity for de-
liberation and advice ; although
such a decree should not be pro-
nounced readilj'^, or without a rigor-
ous scrutiny of all the facts ; Gra-
ham V. Pancoast.

The hardship of the contract, is
not in the absence of other causes
a ground for refusing a specific
performance. If this cannot be
laid down as a universal proposi-
tion ; see The City of London v.
Nash, 3 Atkyns, 512, 1 Vesey,
512 ; Dean of Ely v. Stewart,

2 Atkyns, 44 ; Talhot v. Ford, 13
Simons, 113; Hamilton v. Grant,

3 Dow, 33, 41 ; Clark v. The Each-
ester Bl. Bd., 18 Barb. 350, it is in
general true that the failure of the
hope or expectation which induced
the purchase, is not a reason why
it should not be enforced ; Adams
V. Weare, 1 Brown, C. C. 561. If
a man deliberately parts with that
which is useful to him for that
which he cannot use, the inconve-
nience concerns him and not the
buj-er. A chancellor will not re-
fuse a decree of specific per-
formance, because of an incon-
venience growing directly out of
the terms of the agreement, and
which the parties must be presumed
to have anticipated ; Corson v.
Mulvany, 13 Wright, 88, 91.
But here, as in the kindred case of
inadequacy, courts of equity in-
cline to those who from any cause

are unable to protect themselves,
and will not enforce an improvident
bargain against one who from
weakness of intellect, ignorance, or
the pressure of adverse circum-
stances, was incapable of exercis-
ing a free and unbiased judgment ;
Hays V. Henderson, 2 Watts, 448,
152. The contract may be for a
full price and untainted by fraud or
undue influence, and yet within the
scope of this principle ; Graham v.
Pancoast, 6 Casey, 89, 91 ; Hays
V. Henderson.

A sale will not be enforced
at the risk of exposing the ven-
dor to a forfeiture ; See Frame
V. Brown, cited 2 Vesey, Sr.
301 ; Peacock v. Pearson, 11 Be-
van, 355 ; Henderson v. Hays, 2
Watts, 148, 151 ; and in Henderson
v. Hays, the court refused to com-
pel a man whose mind had been
weakened by habitual intoxication,
to execute a contract with the ef-
fect of turning his land into money
which would in all probability be
squandered at the tavern. In
Campbell v. Spencer, 2 Binnej^,
133 ; the defendant agreed to ex-
change his farm for the stock in
trade of a shopkeeper. It appeared
that the parlies were drinking at
an inn, and that the vendor ex-
pressed great regret immediately
after the writing was executed, and
implored the purchaser to let him
off. The court treated the bargain
as an improvident one, which
should not be enforced, although
the consideration was full, and it
did not appear that the defendant
was drunk, or was materially af-
fected by liquor.

The right to enforce a fair and

WOOLLAM V. HEARN.

'1039

equal contract, will not be defeated
by a change of circumstances for
which the complainant is not di-
rectly or indirectly responsible,
however hardly it may bear on the
defendants ; notes to Seton v.
Slade, post ; Hale v. Wilkinson, 21
Grattan, 15 ; Morgan v. Scott, 2
Casej', 51, although such a change
may turn the scale against one
who has been in default, oris guilty
of laches ; Garrett v. Macon, 6
Call. 309 ; Borton v. Shaffer, 21
Grattan, 414 ; Whittaker v. Bond,
63 N. Carolina. The complainant
must show himself ready, prompt,
and diligent, and one who delays
until the course of events lias
rendered the fulfilment of the con-
tract hard or oppressive, is not
entitled to the aid of a chancellor,
although the opposite party may
also have been in fault ; The Bk.
of Alexandria v. Lyman, 1 Peters,
371 ; Porter Y. Dougherty, 1 Casey,
305 ; Patterson v. Martz, 8 Watts,
314. The court may under these
circumstances look beyond the
parties, to the effect which the de-
cree will have on third persons
who have acquired an interest by
descent, devise, or contract; John-
son V. Huhhell, 2 Johnson Ch. 232 ;
Patterson v. Martz ; Anthony v.
Leftwich, 3 Randolph, 238. In
Anthony v. Leftwich, 3 Randolph,
238, the purchaser did not institute
proceedings until after the lapse of
six years, and the death of the ven.
dor, who had devised the land to his
daughter during the interval with-
out making any other provision
for her in his will, and it was held
to be a sufficient reason for dis-
missing the bill.

A contract made in a depreci-
ated paper currency, will not be
enforced after that has been swept
away by conquest or revolution,
and another substituted which
makes a much nearer approach to
specie. Hudson v. King, 2 Hies-
kell, 561 ; M'Carty v. Kyle, 4 Cald-
well, 349. Under these circum-
stances, the measure of value
chosen by the parties fails, and the
contract with it. But a contract
which has been executed by the
payment of the price, may be en-
forced, although the paper money
in which the payment was made
has depreciated in value or become
worthless. See Hall v. Wilkinson,
21 Grattan, 15 ; Borten v. Schaffer,
21 Id. 414.

In Secrest v. M'Kenna, 1 Strob-
hart Eq. 356, the chancellor put
the complainant on terms to in-
demnify the vendor who was an-
swerable as his surety in a col-
lateral obligation ; and the case
was likened to that of a mortgagee
who may tack other debts to that
which the instrument was intended
to secure. See Walling v. Aiken,
1 M'Mullen 1 ; ante, vol. 1, 858.

There is much force in the posi-
tion, that where a collateral de-
mand could be set off if the suit
were brought for damages at law,
it should not be excluded by a
change of forum, or because the
complainant asks for performance
instead of compensation. But in
Seamen v. Rensselaer, 10 Barb.
81, the defendant was compelled
te convey a lot of land which the
complainant had bought and paid
for, although the latter was unable
to pay for another lot which he

1040 SPECIFIC PERFORMANCE. — PAROL EVIDENCE.

had purchased at the same time
under a distinct contract.

Where pa_yment is by the terms
of the agreement to be deferred,
the court may have regard to the
pecuniary ability of the complain-
ant, Grosbie v. Tooke, 1 Mjdne &
Keene, 436 ; Price v. Asaheton
1 Younge & Collier, 441, and his
insolvency may be a defence to a
bill for the specific performance of
a contract in the nature of a part-
nershi[), although relating to land,
or having real estate for its sub-
ject. Semmes v. M'Ewen, 21 Ala-
bama, 184. The principle is the
same where the obligation of tlie
complainant is continuing, as in
the case of a bill filed to enforce a
covenant to give or to renew a lease.
Wellington v. Joyce, 3 Vesey, 168.

But in Corson v. Mulvaney, 13
Wright, 88, the insolvency of the
purchaser was held not to be a de-
fence to a bill for specific perform-
ance, although the price was to be
secured by mortgage, and the use
to which he intended to put the
land, would diminish its value.

A contract by a husband, or by
a husband and wife, for the sale
of the wife's land, will not be spe-
cifically enforced at the instance of
the purchaser, because a decree
that he should convey would be
futile, and the court will not com-
pel her to perform a contract
which is destitute of legal obliga-
tion. Clark V. Reims, 12 Grattan,
98 ; Young v. Paul, 2 Stockton
Ch. 401 ; Welsh v. Bayand, 6 C.
E. Green, 186.