inia
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M<U4W-^
EQUITY
AND
THE FORMS OF ACTION
CAMBRIDGE UNIVERSITY PRESS
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C. F. CLAY, Manager
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ALSO
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[A!/ Rights reseii'ed'\
EQUITY
ALSO
THE FORMS OF ACTION
AT COMMON LAW
TWO COURSES OF LECTURES
BY
F. W. MAITLAND, LL.D., D.C.L.
LATE DOWNING PROFESSOR OF THE LAWS OF ENGLAND
IN THE UNIVERSITY OF CAMBRIDGE
EDITED BY
A. H. CHAYTOR, M.A., LL.B
OF THE INNER. TEMPLE, BARRISTER-AT-LAVV, FORMERLY
FELLOW OF CLARE COLLEGE, CAMBRIDGE, AND
W. J. WHITTAKER, M.A., LL.B.
OF TRINITY COLLEGE, CAMBRIDGE, AND OF THE MIDDLE TEMPLE AND LINCOLN'S
INN, BARRISTER-AT-LAW, ASSISTANT READER IN THE LAW OF REAL
PROPERTY TO THE COUNCIL OF LEGAL EDUCATION
Cambridge :
at the University Press
1910
First Edition 1909
Repritited 19 10
PREFACE
A S the Downing Professor of the Laws of England
-^^- Maitland lectured on Equity at Cambridge over a
period of some eighteen years, and for the last time in
the spring and summer of 1906. He said himself, ' The
practising lawyer distrusts the professor of law, and rightly.'
We venture to hope that these lectures may lessen that dis-
trust. Those who heard them delivered — amongst whom we
are — with all Maitland's gaiety, and with all his charm of
manner and his power of making dry bones live, will not
easily forget either the lectures or the lecturer. Equity, in
our minds a formless mystery, became intelligible and in-
teresting ; and as for the lecturer, well, there were few things
that his hearers would not have done, or attempted, to please
F. W. Maitland.
These lectures were written for his students, but when
urged to publish them, a few years ago, he said to one of us
that although he had no time to do so yet they were in such
a form that they could readily be published later on. We
think that our successors at Cambridge will be glad to have
this book, and that the Common Lawyers, a great and grow-
ing body wherever English is spoken, may find here some
clear and trustworthy, if brief, account of the famous system
of Equity.
Though Maitland had written out these lectures very
fully, yet of late years he used the MS. chiefly as a scheme
lor his oral lecture, making a great many marginal notes, and
vi Preface
comments on later cases. We have to thank Mr Roland
Burrows, of the Inner Temple, who heard these lectures
delivered in 1906, for the use of his notebooks, which have
enabled us in many instances to see how Maitland himself
had treated and had expanded these later notes. No doubt
in our incorporation of them into his text there must be errors,
errors that Maitland would have avoided, and without doubt
he would have entirelj^ re-written many passages, but the
blame for any mistakes must be ours, and we shall be grateful
to those who will point them out in order that they may be
corrected in the future.
To the twenty-one lectures on Equity we have added
seven lectures upon the Forms of Action at Common Law,
in order to present at the same time Maitland's account of
the development of the two systems which grew up side
by side. Here was the structure upon which rested the
whole common law of England, and, as Maitland says, ' the
forms of action we have buried but they still rule us from
their graves.' The evasion of the burden of archaic procedure
and of such barbaric tests of truth as battle, ordeal and wager
of law, by the development of new forms and new law out
of criminal or quasi criminal procedure and the inquest of
neighbour-witnesses has never been described with this truth
and clearness. He makes plain a great chapter of legal history
which the learners and even the lawyers of to-da}' have almost
abandoned in despair. The text of the chief writs is given
after the lectures and a paged analysis of the seven lectures
has been printed at the end of the book.
In the editing of these latter lectures Mr E. T. Sandars,
of the Inner Temple, also one of Maitland's pupils, has given
us much invaluable help, and he has also prepared the
Index and the Table of Cases, For him, as for us, the work
has been a labour of love.
Preface vii
Amongst the cases given as references in the footnotes
Equity lawyers may miss certain authorities to which they
frequently refer, but as the lectures were intended, at least
primarily, for the student, we have often preferred to give, by
way of reference, some modern case reported in the Law
Reports series, and for that reason more accessible and more
useful to the student. We have referred in the notes to the
chief cases decided since Maitland's death upon the points
dealt with in the text.
A. H. C.
VV. J. VV.
London, Aus^ust u/, 1909.
CONTENTS
Preface, Index of Cases and List of Chancellors
Lectures on Equity
I The Origin of Equity (I)
H „ „ „ „ (H)
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
XVIII
XIX
XX
XXI
Uses and Trusts .
The Modern Trust
Creation of a Trust
Trusts implied, resulting and constructive
The Rights and Duties of Trustees
The Duties of Trustees
The Nature of Equitable Estates and Interests (I)
J) 5) ^1 )» J) I'lJ
)5 5) 5> J) i) l-^-^V
The Present Relations of Equity and the Common
Law .....
The Remedies for Breach of Trust
Satisfaction and Ademption .
Administration of Assets (I)
» (11)
Conversion
Election .
Specific Performance
Injunctions
Mortgages
Seven Lectures on the Forms of Action
Select Writs .
Index to Equity .......
Paged table of Contents to P^orms of Action
PAGES
i-xvi
1-292
i-ii
12-22
23-42
43-56
57-70
71-85
86-97
98-110
111-121
122-141
142-155
156-170
1 7 1 - 1 80
181-191
192-202
203-214
215-224
225-236
237-253
254-265
266-292
293-375
376-386
387-407
408-4 1 2
INDEX OF CASES
Ackroyd v. Sniithsoa ...
Att. Gen. v. Bipbosphated Guano Co.
Att. Gen. v. Jeffeiys ...
Baddeley v. Baddeley ...
Bailey v. Barnes
Bain v. Fothergill
Baker v. White
Bamford v. Bamford ...
Bate, in re
Battison v. Hobson
Beales' Settlement, in re
Behrens v. Richards ...
Belchier, ex parte
Bentinck v. Bentinck ...
Birchall, in re ...
Biss, in re
Blair v. Duncan
Eonnard v. Ferryman ...
Boursot V. Savage
Boyes, in re
Bradshaw, in re
Brandts v. Dunlop Co.
Breton v. WooUven
Britain v. Rossiter
Bryant v. Hancock
Bulkley v. Wiiford
Burgess v. Wheate
Campbell v. Holyland
Carritt v. Bradley
Carter and Kenderdine's Contract, in re
Carver v. Bowles
Cave V. Cave ...
Churchill v. Churchill ...
Clayton's Case ...
Cogan V. Stephens
Comiskey v. Bowring-Hanbury
Commissioners of Income Tax 77. Penisel
Cook V. Gregson
Copestake v. lioper
Cowles V. Gale ...
Cubitt V. Smith
Curteis v. Wormald
Dallas, in re
Darbey v. Whitaker ...
Davidson, in re
Dawson v. G. N. and City Ry. Co.
Day V. Singleton
Dean, in re
Dearie v. Hall
De Pothonier, in re
Douglas-Menzies v. Umphelby
r Bro. C. C. 503
1 r Ch. D. 327
1908, Ap. Cas. 411
9 Ch. Div. 1 13
1S94, I Ch. 25
L.R. 7 H. of L. 158
L.R. 20 Eq. 166
5 Hare, 203
43 Ch. D. 600
1896, 2 Ch. 403
1905, I Ch. 256
1905, 2 Ch. 614
Amb. 219
1897, I Ch. 673
40 Ch. Div. 439
1903, 2 Ch. 40
1902, Ap. Cas. 37
1 89 1, 2 Ch. 269
L.R. 2 Eq. 134
2") Ch. D. 531
1902, I Ch. 436
1905, Ap. Cas. 454
17 Ch. JDiv. 416
II Q.B.D. 123
1898, I Q.B. 716
1899, Ap. Cas. 442
2 CI. and F. 102
1 Eden, 176
7 Ch. D. 166 ...
1903, Ap. Cas. 253
1897, I Ch. 776
2 R. and M. 301
[5 Ch. Div. 639
L.R. 5 Eq. 44'
I Mer. S72
5 L. J. Ch. (N. S.),
1905, Ap. Cas. 84
1891, Ap. Cas. 531
3 Drew, 547 ...
1908, 2 Ch. 10
L.R. 7 Ch. 12
II L.T. 298
10 Ch. D. 172
1904, 2 Ch. 385
4 Drew, 134 ...
11 Ch. D. 341
1905, I K.B. 260
1899, 2 Ch. 320
41 Ch. Div. 552
3 Russ. I
1900, ; C li. 529
1 90S, Ap. Cas. 2:4
154. 157^
219
170 n.
221 \\.
74
137, 126
23 11., 238
39' 249
366 n.
. ■ 208
129
. 231 n.
262 n.
9.=;
196 n.
83
52
260
93 "
61
148 n.
74
242 n.
164
164 n.
83
'14
292 n.
249 n.
230 n.
131
230 n.
174.17.=;
221
67
51
199 n.
281 n.
244 n.
240 n.
'47
240 n.
223
148 n.
... 2 38 n.
52
139, 145, 146
96
xn
Index of Cases
Dowsett, in re
Durham Bros. v. Robertson
Uycr V. Dyer ...
Earl of Oxford's Case
lillenboroui^li, in re
Ellison V. Ellison
Es(l.\ile 7'. Stephenson
Elhell and Mitchell and Butler's Con-
tract, in re
Farquarson Bros. v. King
Farrand v. Yorkshire Banking Co. ..
Fawcett and Holmes' Contract, in re ...
FicUlen V. Co.\ ..
Finch V. E. of Winchil.sea
Fleck, in re
Flight V. Booth
Fhireau v. Thornhill
Eortescue v. Banielt ...
Foster V. Cockerell ...
Foster v. Reeves
Furness, in re
General Bill Posting Co. v. Atkin.son
Gordon, in re ...
(jrcenhill v. N. Brit. Ins. Co.
Griffin, in re
Griffith V. Owen
Grimthorpe, in re
Ilalkett V. Dudley
Hall V. Ewin
Ilalleit's Estate, in re
Hancock v. Smith
Handcock's trusts, in re
Hargreavcs, in re
Haipliam v. Shacklock
Harris v. Tubb
Harter v. Coleman
Hasluck :■. Clark
Haynes v. Foster
Haywood v. Brunswicli Building Soc.
Henitley v. Nicholson ...
Heather, in re
Heywood, in re
Hipwell V. Knight
Hoggart V. Scott
Holloway v. KadclilTe ...
Holmes 7'. Mather
Holroyd v. .Marshall
Hughes 7'. Morris
I lunt V. Luck ...
Hunter v. Att. (ien.
Isaacs, in re
Jacobs V. Revel 1
Jane Davis, \\\ re
Jaques, in re
Jared v. Clements
Jennings v. Jordan
1901, I Ch. 398
1898, I Q.B.' 76s
2 Co.\, 93
I \Vh. and Tu. 739 (7th ed.)
190:5, I Ch. 697
^ VVh. and Tu. S35 (7th ed.)
1 S. and S. 1 22
i.)8 n.
80
^57 n.
75
69
245 n.
291 n.
134 "•
246 n.
262 n.
1 17 n.
246 n.
238
73 »•
146
162
190
265 n.
5. -223
236
73
83 n.
2 19 n.
70 L.T. Ch. 498
190:, Ap. Cas. 325 ...
40 Ch. Div. 182 ... 13
42 Ch. D. 150
(1906) 22 Times Reports, 411
I 1'. Wms. 277
37 Ch. D. 677
1 Bing. N.C. 370
2 W.B.L. 1078
3 M. and K. 36
3 Clark and Finnelly, 456 ...
"1892, 2 Q.B. 255
1901, 2 Ch. 346
1909, Ap. Cas. 118 ...
6 Ch. D. 531
1893, 3 Ch. 474
1899, 1 Ch. 408
1907, I Ch. 195
1908, I Ch. 666
1907, I Ch. 590 248 n.
37 Ch. Div. 74 166
13 Ch. Div. 696 ... 174, 175, 176
41 Ch. Div. 456 175
23 Irish Reports, 34 ... ... 231 n.
44 Ch. D. 236 iij6 n.
19 Ch. D. 207 135 n.
42 Ch. D. 79 252 n.
19 Ch. D. 630 288 n.
1899, I Q.B. 699 ... ... 206 n.
1901, I Ch. 361 ... ... 23^
8 Q.B.D. 403 ... 166, 168
L.R. 19 E.|. "233 74
1906, 2 Ch. 230 ... ... 193 n.
1897, 2 Cii. 593 ... ... 206
I V. and C. 401 ... ... 244 w.
1 R. and M. 293 ... ... 248 n.
23 Beav. 163 ... ... ... 224 n.
L. R 10 Ex. 261 362
10 H.L.C. 191 153
2 De G. M. and G. 356 ... 242 n.
1901, 1 Ch. 45, 1902, I Ch. 428 127
1S99, Ap. Cas. 309 ... ... .=^2
1S94, 3 Ch. 506
1900, 2 Ch. 858
1891, 3 Ch. 1 19
1Q03, 1 Ch. 267
1903, I Ch. 428
6 A p. Cas. 698
246 n.
48
186 n.
128
2S7
Index of Cases
Xlll
Job V. Job
John V. John
Johnston, in re ...
Jones V. Gibbons
Joseph V. Lyons
Keech tk Sand ford
Kekewich v. Manning
Kennedy v. De Trafifoid
Kennedy v. Green
Kettlewell v. Watson
King V. Wiihams
Lake, in re
Lassence v. Tierney
Lawes, in re
Lawes v. Bennett
Leighton v. Leighton
Le Neve v. Le Neve
Llandudno Urban Uist. Council
Woods
Lloyd's Banking Co. v. Jones
L.S.W. Ry. V. Gomm
Loveridge v. Cooper
Lowe V. Dixon
Lowther v. Heaver
Lumley v. Wagner
MacdufT, in re ...
Mackay, in re
Mackieth v. Symons
Maddison v. Aldersun
Magennis v. Fallon
Maggi, in re
Malins v. Freeman
Mallott V. Wilson
Manchester Brewery v. Coombes
Mander v. Falcke
Martin v. Mitchell
Marvin, in re
Mason v. Bogg .
Matthews v. Matthews
May, in re
Meek v Devenish
Meinertzagen v. Walters
Meilison, in re ..
Middleton v. Pollock
Miller and anr. v. Sharp
Mill's trusts, in re
M inter v. Carr ...
Monson v. Tussauds
Morton and Hallett, in re
Nat. Prov. Bank v. Jackson ...
Nat. Trustees Co. of Australia v. Genera
Finance Co.
Nelson v. NeLson Line Ltd. ...
Newman v. Rogers
Nisbet and Potts' Contract, in re ..
Noakes v. Rice ...
6 Cli. Div. 562
158
1898, 1 Ch. 573
26 Ch. D. 538
89 n.
66
9 Ves. ^07 ' ...
15 Q.B.I). 280
49' 152
'39
2 Wh. and Tu. 69:5
f7th e(
.) 82
I De G. M. and G.
187
73 n.
1897, Ap. Cas. I So
^ iNI. and K. 699
21 Ch. D. 685
... 278 n.
... 25311.
128
2 B. and C. 538
... 364
1903, I K.B. i.fi
I Mac. and G. S51
147
242 n.
20 Ch. D. 81
... 186 n.
I Cox, 167
222 n.
L.R. 18 P:q. 458
I Amb. 436
1899, 2 Ch. 705
29 Ch. D. 221
20 Ch. D. 562
3 Russ. 49
16 Q.B.D. 455
41 Ch. D. 248
1 D.M.G. 604
1896, 2 Ch. 451
1906, I Ch. 25
15 Ves. 329
8 Ap. Cas. 467
2 MoUoy, 561
20 Ch. D. 545
2 Keen, 25
1903, 2 Ch. 494
1901, 2 Ch. 608
1891, 2 Ch. 554
2 f. and W. 426
190.S, 2 CI). 490
2 My. and Cr. 443 ..,
2 Ves. Sen. 636
4S Ch. D. 499
6'Ch. D. 566
L.R. 7 Ch. 670
1906, 2 KB. CS
2 Ch. D. 104
1899, 1 Ch. 622
Y, Ch. D. 312, 40 Ch.
1894, 3 Ch. 49S
1894. I Q.B. 671
15 Ch. Div. 143
33 Ch. Div. I ...
1905, Ap. Cas. 373 ...
1906, 2 K.B. 217
4 Bro. C. C. 391
1906, I Ch. 386
1902, Ap. Cas. 24
128
262 n.
26
'33"-
169
145
I
58, 159
162
264
'9.=
D.
14
52
48
253 n.
2+2, 243
25 I n.
206
245
55 n.
162
168
247 n.
192 n.
204, 205
182 n.
205
224
190 n.
207 n.
'39
242 n.
89
. 288 n.
260
92 n.
133
104
148 n.
244 n.
165, 169
292 n.
XIV
Index of Cases
Nordenfelt v. Maxim Noidenfelt G.
and A. Co.
N. American Co. v. Watkins
Northern &c. Fire Ins. Co. v. \\\\'\\>\>
Nottage, in re
Kunn V. Fabian
Oliver, in re
Oliver V- Ilinton
Paine v. Meller
Palnian v. Harland
Payne v. Mortimer
Perrins v. Bellamy
Phillips's trusts, in re ...
Pilcher v. Rawlins
Pilling"s trusts, in re
Pitt- Rivers, in re
Pledge V. While
Policy 6402, in re
Poole V. Sliergold
Poulett V. Plill
Powell V. Elliolt
Pyni V. Lockyer
Rattenberry, in re
Rhoades, in re ...
Richards v. Delbridge
Richerson, in re
Robbins, in re ...
Roberts, in ro ...
Rochefoucauld "'. Boustead ...
Royal Bristol Soc. v. Bonia.sh
Rudd V. Lascelles
Russel V. Russel
Ryan v. Mutual Tontine Ass.
Salisbury v. Hatcher ...
Salt, in re
Salt V. Marquess of Nortlianipton ...
Samson, in re ...
Samuel v. Jarrah etc. Coy. ...
Scott V. Shepherd
Scowcroft, in re
Seeley v. J ago ...
Seton V. Sladc ...
Sharp V. Jackson
.Shelley's Case ...
Slade's Case
Slater, in re
Smith, in re
Smith V. Claxton
Smith V. Lucas...
Smith V. Morgan
Smythies, in re ...
Soar V. Ash well
Somcrville and Turner's Contract, in re
Speight V. Gaunt
1894, Ap. Cas. 5
35 •••
... 265 n.
i()04, I Ch. 242
77
1904, 2 Ch. 2.^,3
77
26 Ch. Div. 482
1.^3
1S95, 2 Ch. 649
52
I..R. I Ch. 35
... 242 n.
1905, I Ch. 191
66, 231 n.
i.S99, 2 Ch. 264
... 133 n.
6 Vcs. 347
17 Ch. D. Y:,:,
4 De G. and J. 447
1899, I Ch. 797
1903, I Ch. 183
I..R. 7 Ch 259
L.R 7 Ch. Ap. 268
26 Ch. D. 492
1902, I Ch. 403
1896, Ap. Cas. 187
1902, I Ch. 282
I Cox, 111
1893, I Ch. 277
1,.R. (o Ch. 424
5 My. and Cr. 29
1906,
I Ch. 667
1899,
2 Q.B. 347
L.R.
18 Eq. II
1892,
I Ch. 379
'f.07.
2 Ch. 0 ...
1902,
2 Ch. 834
1897,
I Ch. i9(J
.^.^ CI
1. D. 390
1900, 1 Ch. 815
2 \Vb. and Xu. 76
1893, I CIi. 116
^tli ed.)
: V. and C.C.C. 54 ...
1895, 2 Ch. 203
1892, Ap. Cas. 18
1906, 2 Ch. 584
1904, Ap. Cas. 323 ...
2 W. Bl. 892
1898, 2 Ch. 638
I P.W. 3S9
7 Ves. 2(55
1899, Ap. Cas. 419 ...
I Salk, 296
4 Rep. 92 b
1907, I Ch. 665
33 Ch. D. 195
4 Madd. 484
18 Ch. D. ci3i
.=; C.P.D. 337
1903, I Ch. 259
1893, 2 Q.B. 390
1903, 2 Ch. 583
9 Ap. Cas. 1 ...
197 n.
104
146
119
T35 n.
89
62 n.
287 n.
81 n.
251 n.
272 n.
245 n.
189
182 n.
207 n.
74
220
208
59
251 n.
246 n.
286
240
... 248.1.
208
... 269
196 n., 198 n.
292 n.
.^61
.SI
... 22411.
... 244 n.
139
40, 65
364
1 88 n.
213
220
235
206
190
76. 179
90
95
.39.
Index of Cases
XV
Spencer's Case ...
Spradbery's Mortgage, in re
Stanley v. I'owell
Stead, in re
Stuart, in re
Swain, in re
Swain v. Ayre.s...
Toilby V. Official Receiver
Tamplin v. James
Tarn v. Turner
Taylor v. Blakelock
Taylor v. London County Banking Co.
Taylor v. Russell
Terry and White's Contract, in re ...
Thomas, in re ...
Thorndike v. Hunt
Timmis, in re ...
Timson v. Ramsbottom
Tolhurst V. Ass. Cement Manufac. ...
Trethewy v. Helyar
Tringham, in re
Tulk V. Moxhay
Tussaud, in re ...
Tyrrell's Case ...
Union Bank of London v. Kent
Van Grutten v. Foxwell
Van Praagh v. Everidge
Vardon's trusts, in re ...
Vernon, in re ...
Walker v. Linom
Walsh V. Lonsdale
Walters v. Walters
Ward V. Duncombe
Warren's trusts, in re ...
Wasdale, in re ...
Weir V. Crum- Brown ...
West London Commercial Bank v. Re-
liance Building Soc.
Wlieatley, in re
Whitaker, in re
White V. Southend Hotel Co.
White V. White
Whitehead v. Palmer ...
Whit wood Chemical Co. v. Hard man
Wilkes V. Bodington ...
Williams's estates, in re
Williams, in re ...
Williams v. Glenton ...
Williams v. Hunt
Williams v. Thomas ...
Wollaston v. King
Wolverhampton Corp. v. Emmons ...
Wood, in re
Wright, in re ...
5 Rep. i6a, r Sm. L.C. 163, 164, 169
14 Ch. D. 5r4
^91
1891, I Q.B. 86
362-
1900, I Ch. 237
61
1897, 2 Ch. 5' 3
104
1891, 3 Ch. 233
iS
21 Q.B.D. 289
161
13 Ap. Cas. 523
75
i^ Ch. D. 215
245 n.
3r3 Ch. D. 456
282 n.
32 Ch. D. 5O0
'39
1901, 2 Ch. 23 1
126, 138, 144 n.
1892, Ap. Cas. 244
132, 135
32 Ch. D. 14 ...
246 n.
34 Ch. D. j66
251 n.
3 De G. and J. 563
1.39
1902, I Ch. 176
.. 48, -C^ n., 179
2 Keen, 35
146 n.
lyo^, Ap. Cas. 414
148 n.
4 Ch. D. 53
208
1904, 2 Ch. 487
66
2 Phil. 774 ... iC
5, 167, 168, 169
9 Ch. D. 363
.. 186, 189, 191
Dyer, 155
41
39 Ch. Div. 238
133
1897, Ap. Cas. 658
39, 40, 64
1902. 2 Ch. 266
245 n.
31 Ch. D. 275
232, 234
33 Ch. D. 402
140
1907, 2 Ch. 104
r33n-
21 Ch. Div. 9
159, 161
18 Ch. Div. 182
200
1893, .Ap- Cas. 369
145, 146
26 Ch. D. 219
231 n.
1099, I Ch. 163
146
1908, Ap. Cas. 162
52 n.
29 Ch. D. 954
278 n.
27 Ch. D. 606
231
42 Ch. D. 1 19
197 n-
1 90 1, I Ch. 9 ...
2C6
1897, I Ch. 767
'63
22 Ch. D. 555
230
1908, I K.t). 157
89 n.
1891, 2 Ch. 416
264
2 \'ern. 599
141
L.R. 15 Eq. 270
196 n.
1897, 2 Ch. 12
67
1904, I Ch. 52
201 n.
L.R. 1 Ch. 200
238 n.
1905, I K.B. 512
272 n.
1909, I Ch. 713
366 n.
L.R. 8 Eq. 175
231 n.
1901, I K.B. 515
240 n.
1896, 2 Ch. 596
221
1906, 2 Ch. 288
231 n.
LIST OF LORD CHANCELLORS AND LORD KEEPERS
(Since Henry VII with dates ok taking ihe seal)
Hen. VIII.
VVarham, Abp Canterbury i
509
Wolsey, Abp York ... i
515
Sir T. More i
529
Sir T. Audley ... ... i
532
Edw. VI.
Wriothesley ... ... i
544
St John I
547
Rich I
547
Goodrich, Bp Ely ... i
55'
Mary,
Gardiixr, Bp Winchester... i
55.^
Heath, Abp York ... i
.S56
Eliz.
Sir Nic. Bacon i
558
Sir T. Bromley ... ... i
579
Sir Chris. Hatlon i
587
Burleigh and others ... i
591
Sir J. Puckering ... ... ]
592
Jac. I.
Ellesmere i
5<;6
Bacon
6.7
Car. I.
Williams, Bp Lincoln
621
Coventry ... ... ... i
625
Finch
640
Lyttleton
641
Car. II.
Clarendon ...
660
Sir Orlando Bridgeman ...
667
Shaftesbury
672
Nottingliani
673
Jac. II.
Guilford
682
Jeffreys
685
Wm. III.
Somers
693
Anne.
Sir Nathan Wright
700
Cowper
70.^.
1714
Harcourt
708
Geo I.
Macclesfield
[718
King
725
Geo. II.
Talbot
[733
Hardwicke ...
737
Geo. III.
Northington
760
Camden
766
Bathurst
771
Thurlow
778
Loughborough
793
Geo. IV.
Eldon
[801.
1807
Erskine
806
Will. IV.
Lyndhurst ...
1827,
1834. '841
Brougham ...
1830
Vict.
Cottenhani ...
1836,
1846
Truro
1850
St Leonards
[851
Cranvvorth ...
1852,
i86s
Chelmsford...
8s8,
1866
Campbell
■8.^9
Westbury ...
1861
Cairns
1868,
1874
Ilatherley ...
[868
Selborne
1872,
1S80
IIalsl)ury
188^,
18S6, 1895
rierschell
S86,
1892
Edw. VII.
Loreburn
'905
LECTURE I.
THE ORIGIN OF EQUITY. (l.)
During the present term I intend to give a course of
lectures of an elementary character upon some of the main
doctrines of Equity. I intend to speak of Equity as of an
existing body of rules administered by our courts of justice.
But for reasons which you will easily understand a brief
historical prelude seems necessary. For suppose that we ask
the question — What is Equity? We can only answer it by
giving some short account of certain courts of justice which
were abolished over thirty years ago. In the year 1875 we
might have said ' Equity is that body of rules which is
administered only by those Courts which are known as Courts
of Equity.' The definition of course would not have been
very satisfactory, but now-a-days we are cut off even from
this unsatisfactory definition. We have no longer any courts
which are merely courts of equity. Thus we are driven to
say that Equity now is that body of rules administered by
our English courts of justice which, were it not for the
operation of the Judicature Acts, would be administered only
by those courts which would be known as Courts of Equity.
This, you may well say, is but a poor thing to call a
definition. Equity is a certain portion of our existing sub-
stantive law, and yet in order that we may describe this
portion and mark it off from other portions we have to make
reference to courts that are no longer in existence. Still I
fear that nothing better than this is possible. The only
alternative would be to make a list of the equitable rules and
say that Equity consists of those rules. This, I say, would
be the only alternative, for if we were to inquire what it is
that all these rules have in common and what it is that marks
them off from all other rules administered by our courts, we
M. £. z
2 Lectures on Equity Lect.
should by way of answer find nothing but this, that these rules
were until lately administered, and administered only, by our
courts of equity.
Therefore for the mere purpose of understanding the
present state of our law, some history becomes necessary.
I will try to tell the main story in a few words but you should
read it at large in the books that I have just mentioned —
Story, Lewin, Ashburner, Strahan, Holdsworth — or in other
books such as Spence's Equitable Jurisdiction'^.
In Edward I's day, at the end of the thirteenth century,
three great courts have come into existence, the King's Bench,
the Common Bench or Court of Common Pleas and the Ex-
chequer. Each of these has its own proper sphere, but as
time goes on each of them attempts to extend its sphere and
before the middle ages are over a plaintiff has often a choice
between these three courts and each of them will deal with
his case in the same way and by the same rules. The law
which these courts administer is in part traditional law, in
part statute law. Already in Edward I's day the phrase
'common law' is current. It is a phrase that has been
borrowed from the canonists — who used 'Jus commune' to
denote the general law of the Catholic Church; it describes
that part of the law that is unenacted, non-statutory, that is
common to the whole land and to all Englishmen. It is
contrasted with statute, with local custom, with royal preroga-
tive. It is not as yet contrasted with equity, for as yet there
is no body of rules which bears this name.
One of the three courts, namely, the Exchequer, is more
than a court of law. From our modern point of view it i.s
not only a court of law but a ' government office,' an adminis-
trative or executive bureau ; our modern Treasury is an
offshoot from the old Exchequer. What we should call the
'civil service' of the country is transacted by two great offices
or ' departments ' ; there is the Exchequer which is the fiscal
department, there is the Chancery which is the secretarial
department, while above these there rises the king's permanent
Council. At the head of the Chancery stands the Chancellor,
^ For the titles of these books which had been memioiied before the lecture
began see the note at page ii.
I Tlie Chancery and tJie JVrits 3
usually a bishop; he is we may say the king's secretary of
state for all departments, he keeps the king's great seal
and all the already great mass of writing that has to be
done in the king's name has to be done under his super-
vision.
He is not as yet a judge, but already he by himself or his
subordinates has a great deal of work to do which brings him
into a close connexion with the administration of justice.
One of the duties of that great staff of clerks over which he
presides is to draw up and issue those writs whereby actions
are begun in the courts of law — such writs are sealed with the
IHng's seal. A man who wishes to begin an action must go to
the Chancery and obtain a writ. Many writs there are which
have been formulated long ago; such writs are writs of course
{brcvia de ciirsii), one obtains them by asking for them of
the clerks — called Cursitors — and paying the proper fees.
But the Chancery has a certain limited power of inventing
nev.' writs to meet new cases as they arise. That power is
consecrated by a famous clause of the Second Statute of
Westminster authorising writs in consimili casii. Thus the
Chancellor may often have to consider whether the case is
one in which some new and some specially worded writ
should be framed. This however is not judicial business.
The Chancellor does not hear both sides of the story, he only
hears the plaintiff's application, and if he grants a writ the
courts of law may afterwards quash that writ as being con-
trary to the law of the land.
But by another route the Chancellor is brought into still
closer contact with the administration of justice. Though
these great courts of law have been established there is still
a reserve of justice in the king. Those who can not get relief
elsewhere present their petitions to the king and his council
praying for some remedy. Already by the end of the
thirteenth century the number of such petitions presented in
every year is very large, and the work of reading them and
considering them is very laborious. In practice a great share
of this labour falls on the Chancellor. He is the king's prime
minister, he is a mernber of the council, and the specially
learned member of the council. It is in dealing with these
I — 2
4 Lectures on Equity Lect.
petitions that the Chancellor begins to develop his judicial
powers.
In course of time his judicial powers are classified as being
of two kinds. It begins to be said that the Court of Chancery,
'Curia Canccllariae'— for the phrase is used in the fourteenth
century — has two sides, a common law side and an equity
side, or a Latin side and an English side. Let us look for a
moment at the origin of these two kinds of powers, and first at
that which concerns us least.
(i) Many of these petitions of which I have spoken seek
for justice not merely from the king but against the king. If
anybody is to be called the wrong doer, it is the king himself.
For example, he is in possession of land which has been seized
by his officers as an escheat while really the late tenant has
left an heir. Now the king can not be sued by action — no
writ will go against him ; the heir if he wants justice must
petition for it humbly. Such matters as these are referred to
the Chancellor. Proceedings are taken before him ; the heir,
it may be, proves his case and gets his land. The number of
such cases, cases in which the king is concerned, is very large
— kings are always seizing land on very slight pretexts — and
forcing other people to prove their titles. Gradually a quite
regular and ordinary procedure is established for such cases —
a procedure very like that of the three courts of law. The
proceedings are enrolled in Latin — just as the proceedings of
the three courts of law are enrolled in Latin (hence the
name ' Latin side ' of the Court of Chancery) — and if a
question of fact be raised, it is tried by jur)'. The Chancellor
himself does not summon the jury or preside at the trial, he
sends the question for trial to the King's Bench. All this is
by no means unimportant, but it does not concern us very
much at the present time.
(2) Very often the petitioner requires some relief at the
expense of some other person. He complains that for some
reason or another he can not get a remedy in the ordinary
course of justice and yet he is entitled to a remedy. He is
poor, he is old, he is sick, his adversary is rich and powerful,
will bribe or will intimidate jurors, or has by some trick or
some accident acquired an advantage of which the ordinary
I The IVrit of Subpoena 5
courts with their formal procedure will not deprive him. The
petition is often couched in piteous terms, the king is asked
to find a remedy for the love of God and in the way of charity.
Such petitions are referred by the king to the Chancellor.
Gradually in the course of the fourteenth century petitioners,
instead of going to the king, will go straight to the Chancellor,
will address their complaints to him and adjure him to do
what is right for the love of God and in the way of charity.
Now one thing that the Chancellor may do in such a case is
to invent a new writ and so provide the complainant with a
means of bringing an action in a court of law. But in the
foiirteenth century the courts of law have become very con-
servative and are given to quashing writs which differ in
material points from those already in use. But another thing
that the Chancellor can do is to send for the complainant's
adversary and examine him concerning the charge that has
Been made against him. Gradually a procedure is established.
The Chancellor having considered the petition, or ' bill ' as it
is called, orders the adversary to come before him and answer
the complaint. The writ whereby he does this is called a
subpoena — because it orders the man to appear upon pain of
forfeiting a sum of money, e.g. subpoena centnvi librarmn. It
is very different from the old writs whereby actions are begun
in the courts of law. They tell the defendant what is the
cause of action against him — he is to answer why he assaulted
and beat the plaintiff, why he trespassed on the plaintiff's
land, why he detains a chattel which belongs to the plaintiff.
The subpoena, on the other hand, will tell him merely that he
has got to come before the Chancellor and answer complaints
made against him by A. B. Then when he comes before the
Chancellor he will have to answer on oath, and sentence by
sentence, the bill of the plaintiff. This procedure is rather
like that of the ecclesiastical courts and the canon law than
like that of our old English courts of law. It was in fact
borrowed from the ecclesiastical courts, not from their ordinary
procedure but from the summary procedure of those courts
introduced for the suppression of heresy. The defendant will
be, examined upon oath and the Chancellor will decide ques-
tions of fact as well as questions of law.
6 Lectures on Equity Lect.
I do not think that in the fourteenth century the Chan-
cellors considered that they had to administer any body of
substantive rules that differed from the ordinary law of the
land. They were administering the law but they were ad-
ministering it in cases which escaped the meshes of the
ordinary courts. The complaints that come before them are
in general complaints of indubitable legal wrongs, assaults,
batteries, imprisonments, disseisins and so forth — wrongs of
which the ordinary courts take cognizance, wrongs which they
ought to redress. But then owing to one thing and another
such wrongs are not always redressed by courts of law. In
this period one of the commonest of all the reasons that
complainants will give for coming to the Chancery is that
they are poor while their adversaries are rich and influential —
too rich, too influential to be left to the clumsy processes of
the old courts and the verdicts of juries. However this sort
of thing can not well be permitted. The law courts will not
have it and parliament will not have it. Complaints against
this extraordinary justice grow loud in the fourteenth century.
In history and in principle it is closely connected with another
kind of extraordinary justice which is }'et more objectionable,
the extraordinary justice that is done in criminal cases by the
king's council. Parliament at one time would gladly be rid
of both — of both the Council's interference in criminal matters,
and the Chancellor's interference with civil matters. And so
the Chancellor is warned off the field of common law — he is
not to hear cases which might go to the ordinary courts, he is
not to make himself a judge of torts and contracts, of property
in lands and goods.
But then just at this time it is becoming plain that the
Chancellor is doing some convenient and useful works that
could not be done, or could not easily be done by the courts
of common law. He has taken to enforcing uses or trusts.
Of the origin of uses or trusts you will have read and I shall
have something to say about it on another occasion. I don't
myself believe that the use came to us as a foreign thing. I
don't believe that there is anything Roman about it. I believe
that it was a natural outcome of ancient English elements.
But at any rate I must ask you not to believe that either the
1 Popularity of Uses 7
mass of the nation or the common lawyers of the fourteenth
and fifteenth centuries looked with disfavour upon uses. No
doubt they were troublesome things, things that might be
used for fraudulent purposes, and statutes were passed against
those who employed them for the purpose of cheating their
creditors or evading the law of mortmain. But I have not a
doubt that they were very popular, and I think we may say
that had there been no Chancery, the old courts would have
discovered some method of enforcing these fiduciary obliga-
tions. That method however must have been a clumsy one.
A system of law which will never compel, which will never
even allow, the defendant to give evidence, a system which
sends every q^uestion of fact to a jury, is not competent to
deal adequately with fiduciary relationships. On the other
hand the Chancellor had a procedure which was very well
adapted to this end. To this we may add that very possibly
the ecclesiastical courts (and the Chancellor you will remem-
ber was almost always an ecclesiastic) had for a long time
past been punishing breaches of trust by spiritual censures,
by penance and excommunication. And so by general con-
sent, we may say, the Chancellor was allowed to enforce uses,
trusts or confidences.
Thus one great field of substantive law fell into his hand
— a fruitful field, for in the course of the fifteenth century
uses became extremely popular. Then, as we all know,
Henry Vlll^for it was rather the king than his subservient
parliament — struck a heavy blow at uses. The king was the
one man in the kingdom who had everything to gain and
nothing to lose by abolishing uses, and as we all know he
merely succeeded in complicating the law, for under the name
of 'trusts' the Chancellors still reigned over their old province.
And then there were some other matters that were considered
to be fairly within his jurisdiction. An old rhyme' allows
him ' fraud, accident, and breach of confidence ' — there were
many frauds which the stiff old procedure of the courts of law
could not adequately meet, and ' accident,' in particular the
accidental loss of a document, was a proper occasion for the
* ' These three give place in court of conscience,
Fraud, accident, and breach of confidence.'
ir
8 Lectures on Equity Ll-xt.
Chancellor's interference. No one could set any very strict
limits to his power, but the best hint as to its extent that
could be given in the sixteenth century was given by the
words 'fraud, accident and breach of confidence.' On the
other iiand hewas not to interfere where a court of common
law offered an adequate remedy. A bill was 'demurrable for
want ol equity ' on that ground.
In the course of the sixteenth century we begin to learn a
]ittle^t)0Ut the rules that the Chancellors arc administering
in the field that is thus assigned to them. They are known
as 'the rules of equity and good conscience.' As to what
they have done in remoter times we have to draw inferences
from very sparse evidence. One thing seems pretty plain.
I They had not considered themselves strictly bound by pre-
• cedent. Remember this, our reports of cases in courts of law
go back to Edward I's day-j-the middle ages are represented
to us by the long series of Year Books. On the other hand
our reports of cases in the Cgurt_of Chancer^y_go -back_Jio_
further than 1557 ; and the mass of reports which come to us
from between that date and the Restoration in 1660 is a light
matter. This by itself is enough to show us that the Chan-
cellors have not held themselves very strictly bound by case
law, for men have not cared to collect cases. Nor do I believe
that to any very large extent the Chancellors had borrowed
from the Roman Law — this is a disputed matter, Mr Spence
has argued for their Romanism, Mr Justice Holmes against it
No doubt through the medium of the canon law these great
ecclesiastics were familiar with some of the great maxims
which occur in the Institutes or the Digest. One of the parts
of the Corpus Juris Canonici, the Liber Sextus, ends with a
bouquet of these high-sounding maxims— (^//Z prior est
tempore potior est Jure, and so forth, majdics familiar to all
readers of equity reports. No doubt the early Chancellors
knew these and valued them — but I do not believe that we
ought to attribute to them much knowledge of Roman law or
any intention to Romanise the law of England. For example,
to my mind the comparison sometimes drawn between the
so-called double ownership of England, and the so-called
double ownership of Roman law can not be carried below the
I Ideas and Methods of the Chancellors 9
surface. In their treatment of uses or trusts the Chancellors
stick close, marvellously close, to the rules of the common law
— they often consulted the judges, and the lawyers who pleaded
before them were common lawyers, for there was as yet no
' Chancery Bar.' On the whole my notion is that with the
idea of a law of nature in their minds they decided cases
without much reference to any written authority, now making
use of some analogy drawn from the common law, and now
of some great maxim of jurisprudence which they have
borrowed from the canonists or the civilians.
In the second half of the sixteenth century the juris-
^iid.en.ce of the court is becoming settled. The day for
ecclesiastical Chancellors is passing away. Wolsey is the last
of the great ecclesiastical Chancellors, though in Charles I's
day we have one more divine in the person of Dr Williams.
Ellesmere, Bacon, Coventry, begin to administer an established
set of rules which is becoming known to the public in the
sTiape of reports and they begin to publish rules of procedure.
In James I's day occurred the great quarrel between Lord
Chancellor Ellesmere and Chief Justice Coke which finally
decided that the Court of Chancery was to have the upper .,
hand over the~courts of law. If the Chancery was to carry '
Out its maxims about trust and fraud it was essential that it
should have a power to prevent men from going into the
courts of law and to prevent men from putting in execution
the judgments that they had obtained in courts of law. In
fraud or in breach of trust you obtain a judgment against me
in a court of law ; I complain to the Chancellor, and he after
hearing what you have to say enjoins you not to put in force
your judgment, says in effect that if you do put your judg-
ment in force you will be sent to prison. Understand well
that the Court of Chancery never asserted that it was superior
to the courts of law; it never presumed to send to them such
mandates as the Court of King's Bench habitually sent to the
inferior courts, telling them that they must do this or must
not do that or quashing their proceedings— the Chancellor's
injunction was in theory a very diffpjent thing fmm a
-xnandamus, a prohibition, a certiorari, or the like. It vvas
addressed not to the judges, but to the party. You in breach
lO Lectures on Equity Lect.
of trust have obtained a judgment — the Chancellor does not
say that this judgment was wrongly granted, he does not
annul it, he tells you that for reasons personal to yourself it
will be inequitable for you to enforce that judgment, and that
you are not to enforce it. For all this, however, it was natural
that the judges should take umbrage at this treatment of their
judgments. Coke declared that the man who obtained such
an injunction was guilty of the offence denounced by the
Statutes of Praemunire, that of calling in question the judg-
ments of the king's courts in other courts (these statutes had
been aimed at the Papal curia). _King J^nies had now a wished-
for opportunity of appearing as supreme over all his judges,
and all his courts, and acting on the advice of Bacon and other
great lawyers he issued a decree in favour of the Chancery.
From this time forward the Chancery had the upper hand.
It did not claim to be superior to the courts of law, but it
could prevent men from going to those courts, whereas those
courts could not prevent men from going to it.
Its independence being thus secured, the court became an
extremely busy court. Bacon said that he had made 2000
orders in a year, and we are told that as many as 16,000
causes were pending before it at one time: indeed it was
hopelessly in arrear of its work. Under the Commonwealth
some vigorous attempts were made to reform its procedure.
Some were for abolishing it altogether. It was not easily
forgotten that the Court of Chancery was the twin sister of
the Court of Star Chamber. The projects for reform came to
an end with the Restoration. Still it is from the Restoration
or thereabouts — of course a precise date can not be fixed —
that we may regard the equity administered in the Chancery
as a recognised part of the law of the land. Usually, though
not always, the great seal is in the keeping of a great lawyer —
in 1667 Sir Orlando Bridgman, the great conveyancer, has it;
in 1673 Sir Heneage Finch, afterwards Lord Nottingham,
who has been called the father of equit}'; in 1682 Sir Francis
North, afterwards Lord Guilford; in 1693 Sir John Somers,
afterwards Lord Somers, a great common lawyer. I think
that Anthony Ashley, Earl of Shaftesbury, the famous Ashley
of the Cabal, was the last non-lawyer who held it, and he held
I Equity becomes a System 1 1
it for but one year, from 1672 to 1673. Then during the
eighteenth century there comes a series of great Chancellors.
In 1705 Cowper, in 1713 Harcourt, in 1725 King, in 1733
Talbot, in 1737 Hardwicke, in 1757 Northington, in 1766
Camden, in 1778 Thurlow, in 1793 Loughborough, in i8oi
Eldon. In the course of the century the Chancery reports
improve; the same care is spent upon reporting the decrees
of the Chancellors that has long been spent on reporting
the judgments of the judges in the courts of common law.
Gradually, too, a Chancery bar forms itself, that is to say.
some barristers begin to devote themselves altogether to
practising before the Chancellor, and do not seek for work
elsewhere. Lastly, equity makes its way into the text-books
as a part, and an important part, of the law of the land. Bj'
far the greatest text-book of the century is, I need hardly
say it, Blackstone's Comuientaries — it comes to us from the
middle of the century — but of Blackstone's view of equity I
must speak next time.
Note. — Before beginning this course of lectures Professor
Maitland used to recommend various books to his students.
The list in 1906 appears to have been the following : —
Story, Equity Jurisprudence (1S92).
Lewin, Law of Trusts (1904).
Ashburner, Principles of Equity (1902).
Strahan and Kenrick, Digest of Equity (1905).
_^oldsworth, History of English Law. Vol. I (1903).
Digby, History of the Law of Real Property (1S98).
LECTURE II.
THE ORIGIN OF EQUITY, (il.)
Wk have brought down our brief sketch of English Equity
to the time of Blackstone. Let us now look at the matter
through the eyes of the great commentator. He is concerned
to show that the so-called equity of the Court of Chancery
is in reality law, and he also considers himself concerned to
show that the so-called law of the three old courts is in a
sense equity. I shall read a somewhat long excerpt from him
because it contains some valuable illustrations. He begins
by asserting that every definition or illustration which draws
a line between the two jurisdictions, by setting law and equity
in opposition to each other, will be found either totally
erroneous, or erroneous to a certain degree.
I. 'Thus in the first place it is said that it is the business
of a court of equity in England to abate the rigour of the
common law. But no such power is contended for. Hard was
the case of bond-creditors, whose debtor devised away his real
estate; rigorous and unjust the rule which put the devisee in
a better condition to the heir : yet a court of equity had no
power to interpose. Hard is the common law still subsisting,
that land devised, or descending to the heir, shall not be liable
to simple contract debts of the ancestor or devisor... and that
the father shall never immediately succeed to the real estate
of the son: but a court of equity can give no relief; though
in both these instances the artificial reason of the law, arising
from feudal principles, has long ago entirely ceased.' He
gives other instances of hard and antiquated rules, for the
rigour of which equity has no mitigation.
Lect. II B/acksfones View of Equity 13
2. ' It is said that a court of equity determines according
to the spirit of the rule and not according to the strictness of
the letter. But so also does a court of law. Both for instance
are equally bound and equally profess, to interpret statutes
according to the true intent of the legislature'
3. * Again, it hath been said, that fraud, accident and
trust are the proper and peculiar objects of a court of equity.'
But, he urges, all frauds are equally cognizable by a court of
law and some are only cognizable there. Many accidents are
relieved against in courts of law. And, though it is true that
the courts of law will not take notice of what is technically
called a trust — created by a limitation of a second use — still
it takes notice of bailments and a bailment, e.g. a deposit, is
in fact a trust.
4. 'Once more; it has been said that a court of equit}'
is not bound by rules or precedents, but acts from the opinion
of the judge founded on the circumstances of every particular
case. Whereas the system of our courts of equity is a laboured,
connected system governed by precedents, from which they
do not depart, although the reason of some of them may
perhaps be liable to objection. Thus the refusing a wife her
dower in a trust estate, yet allowing the husband his curtesy'
— and he gives several other illustrations of rules which are
but questionably just — 'all these, and other cases that might
be instanced are plainly rules of positive law.'
He sums up: 'The systems of jurisprudence in our courts
both of law and equity are now equally artificial systems,
founded in the same principles of justice and positive law; but
varied by different usages in the forms and mode of their
proceedings: the one being originally derived (though much
reformed and improved) from the feudal customs, as they
prevailed in different ages in the Saxon and Norman judi-
catures ; the other (but with equal improvements) from the
imperial and pontifical formularies, introduced by their clerical
chancellors^'
You will see what this comes to. Equity is now, what-
ever it may have been in past times, a part of the law of
our land. What part ? That part which is administered by
^ Biackstone ni 429 et seq.
14 Lectures on Equity Lect.
certain courts known as courts of equity. We can give no
other general answer. We can give a historical e.xplanation.
We can say, for example, that the common law is derived
from feudal customs, while equity is derived from Roman and
canon law (Blackstone, I think, greatly overrates the influence
of Roman and canon law in the history of equity), but in no
general terms can we describe cither the field of equity or the
distinctive character of equitable rules. Of course we can
make a catalogue of equitable rules, and we can sometimes
point to an institution, such as the trust strictly so called,
which is purely equitable, but we can make no generalization.
We will come back to this point by and by. Meanwhile
let us carry our hurried sketch to an end. The first three
quarters of the nineteenth century saw an enormously rapid
development of the equitable jurisdiction. Remember this,
that until 1813 there were only two judges in the Court of
Chancery. There was the Lord Chancellor, and there was
the Master of the Rolls, and it was but by degrees that the
latter had become an independent judge ; for a long time
he appears merely as the Chancellor's assistant. In 181 3
a Vice-Chancellor w'as appointed. In 1841 two more Vice-
Chancellors. In 185 1 two Lords Justices of Appeal in
Chancery. When the Court was abolished in 1875 it had
seven judges. Cases in the first instance were taken before the
Master of the Rolls, or one of the three Vice-Chancellors, and
then there was an appeal Court constituted by the Chancellor
and the two Lords Justices ; but the Chancellor could sit as a
judge of first instance if he pleased and sometimes did so.
I need hardly say that every Chancellor has been a great
lawyer — some like Brougham, Campbell, Herschell, Halsbury,
have been by origin common lawyers, others like St Leonards,
Westbury, Hatherley, Selborne, Cairns, equity lawyers. There
was a large body of practitioners who never, or only on the
rarest occasions, went into courts of law, just as there was
another large-body of practitioners w^ho never saw the inside
of a court of equity, and who would have very frankly admitted
that of equity they knew next to nothing.
There came great reforming statutes which recast the
procedure of both courts. Some of their provisions we may
n The Judicatuve Acts 15
now regard as prophetic, that is to say, they paved the
way for that fusion of the two procedures which was accom-
plished in 1875. Thus, for example, the Court of Chancery
was enabled in certain cases to give damages \ and the courts
of law were enabled in certain cases to grant injunctions ^i
formerly the injunction had been characteristic of the Court
of Chancery, while the judgment for damages had been
characteristic of the court of law. Again the statutes which
enabled the parties to an action and other interested persons
to give evidence in courts of law did something towards
bridging over the gulf^.
At last came the Judicature Acts of 1873 ^nd 1875, which
took effect in the latter year. The old courts were abolished,
Chancery, Queen's Bench, Common Pleas, Exchequer, also
the Court of Probate, the Court of Divorce, and the Court of
Admiralty. In their place was put a High Court of Justice
with a Court of Appeal above it. This High Court of Justice
was divided into five divisions. Chancery, Queen's Bench,
Common Pleas, Exchequer — that makes four — the fifth being
Probate, Divorce and Admiralty. But you should understand
that the divisions of the High Court are utterly different
things from the old independent courts. Certain particular
business was assigned to each division. Thus for example
to the Chancery Division was assigned (among other things)
'the execution of trusts charitable or private,' 'the redemption
and foreclosure of mortgages,' and so forth. But this is now
to be regarded as a mere matter of convenience : the dis-
tribution of business might at any time be changed without
any act of parliament merely by rules made by the judges,
and even the divisions of the High Court can be abolished
or changed without any act of parliament by an order in
council, and indeed the Common Pleas and Exchequer
Divisions were abolished by an order in council of 16 De-
cember, 1880. But this is not all, for in the second place
we must note that every judge, to whatever division he may
belong, is bound to administer in any case that comes before
1 The Chancery Amendment Act 1858 (Lord Cairns's Act), s. 2.
^ The Common Law Procedure Act 1854, ss. 79 and 82.
3 6 & 7 Vic. c. 85, s. 1 (1843) (interest); 14 & 15 Vic. c. <^^, s. 2 (1851) (parties).
1 6 Lectures on Equity Lect.
him whatever rules our law — taking the term 'law' in its
j widest meaning — has for that case; be those rules rules of
common law or rules of equity. It is no longer possible for
"a judge to say to a litigant 'You are relying on a trust and
this court can take no notice of a trust,' or ' This is a matter
of pure common law and not within the cognizance of a court
of equity.' It is no longer necessary for a man to institute a
suit in equity in order to obtain evidence that he wants to
use in an action at law. It is no longer possible for him to
obtain an injunction from equity restraining his adversary
from taking proceedings at law.
Then as to procedure there was a great change. Prac-
tically we have now what might well be called a Code of
Civil Procedure. It is to be found partly in the Judicature
Acts, partly in a large body of Rules of Court made by tiie
judges in exercise of rule-making powers given to them by
statute. This code of procedure is supposed to combine all
the best features of the two old systems, the system of the
common law, and the system of equity.
Then as to substantive law the Judicature Act of 1873
took occasion to make certain changes. In its 25th section it
laid down certain rules about the administration of insolvent
estates, about the application of statutes of limitation, about
waste, about merger, about mortgages, about the assignment
of choses in action, and so forth, and it ended with these
words :
' Generally in all matters not hereinbefore particularly
mentioned, in which there is any conflict or variance between
the rules of equity and the rules of the common law with
reference to the same matter, the rules of equity shall prevail.'
Now it may well seem to you that those are very im-
portant words, for perhaps you may have fancied that at all
manner of points there was a conflict between the rules of
equity and the rules of the common law, or at all events a
variance. But the clause that I have just read has been in
force now for over thirty years, and if you will look at any
good commentary upon it you will find that it has done very
little — it has been practically without effect. You may indeed
find many cases in which some advocate, at a loss for other
II
Equity not in Conflict z^'it/i Lau' 17
arguments, has appealed to the words of this clause as a last
hope ; but you will find very few cases indeed in which that
appeal has been successful. I shall speak of this more at
large at another time, but it is important that even at the
very outset of our career we should form some notion of the
relation which existed between law and equity in the year
1875. And the first thing that we have to observe is that
this relation was not one of conflict. Equity had come not to
destro\- the law, but to fulfil it. E\-ery jot and every tittle of
the law was to be obeyed, but when all this had been done
something might yet be needful, something that equit\- would
require. Of course now and again there had been conflicts :
there was an open conflict, for example, when Coke was for
indicting a man who sued for an injunction. But such conflicts
as this belong to old days, and for two centuries before the
year 1875 the two s\'stems had been working together
harmoniously.
Let me take an instance or two in which something that
may for one moment look like a conflict becomes no conflict
at all when it is examined. Take the case of a trust. An
examiner will sometimes be told that whereas the common
law said that the trustee was the owner of the land, equity
said that the cestui que trust was the owner. Well here in all
conscience there seems to be conflict enough. Think what
this would mean were it really true. There are two courts of
co-ordinate jurisdiction — one sa\'s that A is the owner, the
other says that B is the owner of Blackacre. That means
civil war and utter anarchy. Of course the statement is an
extremely crude one, it is a misleading and a dangerous
statement — how misleading, how dangerous, we shall see
when we come to examine the nature of equitable estates.
Equity did not sa}' that the cestui que trust was the owner of
the land, it said that the trustee was the owner of the land,
but added that he was bound to hold the land for the benefit
of the cestui que trust. There was no conflict here. Had
there been a conflict here the clause of the Judicature Act
which I have lately read would have abolished the whole law
of trusts. Common law says that A is the owner, equit)- says
that B is the owner, but equity is to prevail, therefore B is
M- £. a
1 8 Lectures on Equity Lect.
the owner and A has no right or duty of any sort or kind
in or about the land. Of course the Judicature Act has
not acted in this way ; it has left the law of trusts just
where it stood, because it found no conflict, no variance even,
between the rules of the common law and the rules of
equity.
Other instances might easily be taken. As a remedy for
a breach of contract a court of law could give damages ; as a
remedy for a breach of contract a court of equity could grant
a decree for specific performance. In many cases it would
happen that a man would have his choice between the two
remedies — he could go to law for damages, he could ask the
Court of Chancery to compel his adversary to do just what
he had promised to do. In many other cases he had no
choice, the one remedy open to him was an action for
damages ; equity would give him no help. In yet other
cases the converse was true, he had no action for damages,
but he could none the less obtain a decree for specific per-
formance. Here again there is no conflict. There is nothing
absurd, nothing contradictory in the statement 'You are
entitled to damages for the breach of this contract, but no
court will compel your adversary to perform it specifically';
nor in the statement 'You can not obtain damages for the
breach of this contract, and yet you may have a decree for
specific performance.' There is here no room for the play
of these words in the Judicature Act about the prevalence of
equity.
Or take a case of tort, a case of nuisance. There is
no absurdity, no self-contradiction in this statement: 'X by
building that wall has done you a wrong for which he can be
compelled to pay you damages, but all the same the case is
not one in which he ought to be enjoined to pull the work
down on pain of going to prison.'
No, we ought to think of equity as supplementary law, a
sort of appendix added on to our code, or a sort of gloss
written round our code, an appendix, a gloss, which used to
be administered by courts specially designed for that purpose,
but which is now administered by the High Court of Justice
as part of the code. The language which equity held to
II Equity is Supplementary Law 19
law, if we may personify the two, was not 'No, that is not so,
you make a mistake, your rule is an absurd, an obsolete one';
but 'Yes, of course that is so, but it is not the whole truth.
You say that A is the owner of this land ; no doubt that is so,
but I must add that he is bound by one of those obligations
which are known as trusts.'
We ought not to think of common law and equity as of
two rival systems. Equity was not a self-sufficient system,
at every point it presupposed the existence of common law.
Common law was a self-sufficient system. I mean this: that
if the legislature had passed a short act saying 'Equity is
hereby abolished,' we might still have got on fairly well ; in
some respects our law would have been barbarous, unjust,
absurd, but still the great elementary rights, the right to
immunity from violence, the right to one's good name, the
rights of ownership and of possession would have been decently
protected and contract would have been enforced. On the
other hand had the legislature said, 'Common Law is hereby
abolished,' this decree if obeyed would have meant anarchy.
At every point equity presupposed the existence of common
law. Take the case of the trust. It's of no use for Equity to
say that A is a trustee of Blackacre for B, unless there be
some court that can say that A is the owner of Blackacre.
Equity without common law would have been a castle in
the air, an impossibility.
For this reason I do not think that any one has expounded
or ever will expound equity as a single, consistent system,
an articulate body of law. It is a collection of appendixes
between which there is no very close connexion. If we
suppose all our law put into systematic order, we shall find
that some chapters of it have been copiously glossed by
equity, while others are quite free from equitable glosses.
Since the destruction of the Star Chamber we have had no
criminal equity. The Court of Chancery kept very clear of
the province of crime, and since the province of crime and
the province of tort overlap, it kept very clear of large portions
of the province of tort. For example, before 1875 it would
grant no injunction to restrain the publication of a libel, for
normally the libel which is a tort is also a crime and it was
2 — 2
20 Lectures on Equity Lect.
thought, and rightly thought, that such a matter should not
be brought before a court where a judge without any jury
tried both fact and law. Indeed if you will look at your
books on tort you will find that on the whole — if we except
the province of fraud — equity has had little to do with tort,
though it has granted injunctions to restrain the commission
of nuisances and the like. The law of contract has been
more richly provided with equitable appendixes. The power
of the Chancery to compel specific performance, and its
power to decree the cancellation or rectification of agreements
brought numerous cases of contract before it, and then it had
special doctrines about mortgages, and penalties, and stipula-
tions concerning time. Property law was yet more richly
glossed. One vast appendix was added to it under the title
of trusts. The bond which kept these various appendixes
together under the head of Equity was the jurisdictional and
procedural bond. All these matters were within the cognizance
of courts of equity, and they were not within the cognizance
of the courts of common law. That bond is now broken by
the Judicature Acts. Instead of it we find but a mere
historical bond — ' these rules used to be dealt with by the
Court of Chancery' — and the strength of that bond is being
diminished year by year. The day will come when lawyers
will cease to inquire whether a given rule be a rule of equity
or a rule of common law : suffice it that it is a well-established
rule administered by the High Court of Justice.
Certainly I should have liked at the outset of my course
to have put before you some map, some scheme of equity.
But for the reasons that I have endeavoured to state I do not
think that such a map, such a scheme can be drawn. Attempts
at classification have been made, but they have never been
pushed very far and are now of little, if any, service to us.
The scheme adopted by the great American judge. Story, and
which found very general acceptation, was this — Equity is
(i) exclusive, (2) concurrent, (3) auxiliary. You see the basis
of this scheme — it is one on which we can no longer build.
Equity has an exclusive cognizance of certain subjects, e.g.
trusts, a cognizance that is exclusive of courts of law. Then
it has a concurrent jurisdiction, a jurisdiction that is con-
II Story's Scheme of Equity 21
current with the jurisdiction of courts of law over certain
other subjects, e.g. fraud. Finally men sometimes go to
equity merely in order to obtain its assistance in proceedings
which they are taking or are about to take in courts of law,
e.g. the plaintiff in an action at law goes to the Chancery in
order that he may obtain discovery of the documents on
which his opponent will rely. Here equity exercises an
auxiliary jurisdiction. Then under each of these titles Story
and other writers will give a string of sub-titles. Thus the
concurrent jurisdiction deals with account, mistake, actual or
positive fraud, constructive fraud, administration, legacies,
confusion of boundaries, dower, and so forth. But you will
at once see that this string is a mere string and not a logical
scheme — observe for example the leap from legacies to boun-
daries, and from boundaries to dower. I am not complaining
of Story's procedure ; on the contrary it seems to me the
only procedure open to him. In my opinion he had to deal
not with a single connected system, but with a number of
disconnected doctrines, disconnected appendixes to or glosses
on the common law. And you will observe that such classifi-
cation as he could make is no longer useful. It presupposes
that there is one set of courts administering law, another set
administering equity. That is no longer the case in England.
No court, no division of a court, can now say these or those
rules are my exclusive property ; for every division of the
High Court is capable of administering whatever rules are
applicable to the case that is before it, whether they be rules
of the common law or rules of equity.
When some years ago the new scheme for our Tripos was
settled, we said that candidates for the second part were to
study the English Law of Real and Personal Property and
the English Law of Contract and Tort, with the equitable
principles applicable to these subjects. It was a question
whether we ought not to have mentioned equity as a separate
subject. I have no doubt however that we did the right
thing. To have acknowledged the existence of equity as a
system distinct from law would in my opinion have been a
belated, a reactionary measure. I think, for example, that
you ought to learn the many equitable modifications of the
22 Lectures on Equity Lect. ri
law of contract, not as part of equity, but as part, and a very
important part, of our modern English law of contract. And
books such as those of Anson and Pollock enable you to do
so. I should consider a book on Contract extremely imperfect
if it gave no account of the equitable doctrine of part per-
formance, the equitable doctrine of undue influence, the
equitable remedy of rectification, and the like. For all this
however it has seemed to me possible that certain important
provinces of equity, in particular the great province of trust,
may not be fully dealt with by other lecturers. Hence these
lectures. At the end of my course I hope to speak once
more of the modern relation between equity and law and of
the prevalence which is assured to equity by the Judicature
Act of 1873.
In my view equity has added to our legal system, together
with a number of detached doctrines, one novel and fertile
institution, namely the trust ; and three novel and fertile
remedies, namely the decree for specific performance, the
injunction, and the judicial administration of estates. Round
these, as it seems to me, most of the equitable rules group
themselves. Of course I do not intend to speak of all or
nearly all equitable rules, but I mean to deal at some length
with trusts and then to speak of certain other matters in an
order that I shall endeavour to explain from time to time.
LECTURE III.
USES AND TRUSTS.
Of all the exploits of Equity the largest and the most
important is the invention and development of the Trust.
It is an ' institute ' of great elasticity and generality ; as
elastic, as general as contract.
This perhaps forms the most distinctive achievement of
English lawyers. It seems to us almost essential to civiliza-
tion, and yet there is nothing quite like it in foreign law.
Take up for instance the Biirgerliches Gesetzbuch — the Civil
Code of Germany ; where is trust ? Nowhere. This in the
eyes of an English practitioner is a big hole.
Foreigners don't see that there is any hole. * I can't
understand your trust,' said Gierke to me. We must ask
why this is so. Well, the trust does not fit easily into what
they regard as the necessary scheme of jurisprudence.
Let me explain a little ; for this will be of service in
practical consideration of the nature of equitable rights.
Jurists have long tried to make a dichotomy of Private
Rights : they are either in rem or iti personam. The types of
these two classes are, of the former, dominium, ownership ; of
the latter the benefit of contract — a debt.
Now under which head does trust — the right of cestui que
trust — fall .'' Not easily under either. It seems to be a
little of both. The foreigner asks — where do we place it in
our code — under Sachenrecht or under Obligationenrecht ?
The best answer may be that in history, and probably in
ultimate analysis, it is jtis in personam ; but that it is so
treated (and this for many important purposes) that it is
very like jus in rem. A right primarily good against certa
persona, viz. the trustee, but .so treated as to be almost
e'quivalent to a right good against all — a dominium, owner-
24 Lectitres on Equity Lect.
ship, which however exists only in equity. And this is so
from a remote time.
The modern trust developed from the ancient ' use.'
Therefore we must speak briefly of uses and of the famous
Statute of Uses, not for antiquarian purposes, but in order to
throw light on the juristic nature of the modern trust.
First as to words. The term 'use' is a curious one ; it has,
if I may say so, mistaken its own origin. You may think
that it is the Latin 7isus, but that is not so ; it is the Latin
opus. From remote times — in the seventh and eighth cen-
turies in barbarous or vulgar Latin you find 'ad opus' for 'on
his behalf It is so in Lombard and Frank legal documents.
In Old French (see Godefroy)^ this becomes al oes, ties. In
English mouths this becomes confused with ' use.' In record
Latin it remains ad opus. If I hold land ad opus Johannis,
this of course means that I hold it on behalf of John. Some-
times you get ad opus et ad itsum Johannis, and sometimes a
pedantic re-introduction of the Latin ' p ' — ' oeps ' and ' eops!
If the sheriff seizes land ad opus domini Regis this means that
he seizes land on behalf of the king, that he is acting as the
king's agent. Now this phrase thus used we can trace back
far in our legal history — certainly it appears in Domesday
Book ; one man is constantly doing things, ad opus another
man. In particular the sheriff is always making seizures ad
opus Regis, as os le Roy. Thus from 1224 we get this phrase^,
coniniisit terravi suaui custodiendam Wydoni fratri suo ad
opus pueroruni suorum—hc committed his land to his brother
Guy to be kept to the use of his children. So also we can
trace back into the thirteenth century the conveyance of
villain land by surrender and admittance. The seller comes
into court and surrenders the land ad opus, to the use (we
must say) of the purchaser. There is as yet no law, no equity
of ' uses ' ; but in many cases this term ad opus points to a
legal relationship. In the fourteenth century (which for us is
the important time) it has long been used currently to
describe cases of agency and bailment. My agent receives
money to my use. This leaves its mark in such phrases as
1 Dictionuaire de rAnc. Langue Fram^aise.
2 Bracton's Note Book, pi. 999.
1 1 1 Derivation of ' Use 'from ' opus ' 7iot ' usus ' 25
'convert to his use' — 'goods received to his use.* If I seize
land to your use, or to the use of the king, that means that I
have acted as your agent or the king's agent. Then again
we find the same phrase employed in cases which are more
akin to those which beget the law, or rather the equity of
uses at a later day. Already in the thirteenth century a land-
owner will sometimes want to make a settlement. Perhaps
he is tenant in fee simple and desires to become tenant in
tail. In order that this may be accomplished — for he cannot
enfeoff himself — he will enfeoff some friend to the use {ad
opus) that the friend shall re-enfeoff him in tail. The law will
enforce such a bargain for as yet the use, if we may already
so call it, can be regarded as a condition : to enfeoff X. Y. to
the use that he shall make a feoffment is the same thing as
enfeoffing him upon condition that he shall make a feoff-
ment.
So far as I am aware however the first occasion on which
we find that land is being permanently held by one man to
the use {ad opus) of another man, or rather, by one set of men
to the use of another set is this. In the second quarter of the
thirteenth century came hither the Franciscan friars. The
rule of their order prescribes the most perfect poverty : they
are not to have any wealth at all. They differ from monks.
The individual monk can own nothing, but a community of
monks, an abbey, a priory, may own land and will often be
very rich. On the other hand, friars' priories are not to have
property either individually or collectively. Still, despite
this high ideal, it becomes plain that they must have at least
some dormitory to sleep in. They have come as missionaries
to the towns. The device is adopted of having land conveyed
to the borough community to the use of the friars. Thus in
a MS. at Oxford Ricardus le Muliner contulit areain et donmin
cominunitati villae Oxoniae ad opus fratruni^. Very soon in
various towns in England a good deal of land is held thus.
Attention was directed to this case by the outbreak of the
great dispute as to Evangelical Poverty, the quarrel between
the Franciscans and Pope John XXII.
But in the fourteenth century this old phrase is being used
^ See History of English Law, 2nd edn. vol. 11, pp. 237, 238.
26 Lectures on Equity Lect.
to express a substantially new relationship in connexion with
the holding of land.
We find the landowner conveying his land to his friends
ad opus SHuni. Why ? Unquestionably the main reason is in
order that he may in effect make a will. He will have the
benefit and the profits while he lives, and after his death his
friends will convey the land according to his direction.
Remember that as regards freehold land every germ of
testamentary power is stamped out in the twelfth century
(except as to burgage tenures).
Note in passing that a device of this kind is not new.
The power to make a will of chattels was acquired in this
way among the Germanic tribes. The institution of an
executor was originally a transaction ijiter vivos — a convey-
ance of goods by a dying man to friends who will execute his
wishes. But the revived Roman law (in the eleventh century)
plays upon this, and the will of chattels becomes a true testa-
ment, revocable, ambulatory — but with the executor keeping
his place.
History in some sort is repeating itself. In the four-teenth
century (we may say) we see an attempt to do in the case of
land what had long ages before been done in the case of
chattels.
Why was the power to make a will of land desired ? In
order to increase the fund applicable for the good of the soul,
and in order to provide for daughters and for younger sons.
Further, the law bore hardly on the dying landowner —
with its reliefs, wardships, marriages, escheats. Can these be
evaded ? Yes, by a plurality of feoft"ees. Here joint tenancy
comes to his aid (trustees, as you know, are always joint
tenants). There will be no inheritance and no relief, ward-
ship, marriage. By keeping up a wall of joint tenants, by
feoffment and refeoffment, he can keep out the lord and
can reduce the chances of reliefs and so forth to nothing.
During the fourteenth century landowners begin to discover
that a great deal can be done by means of this idea. A
landowner will convey land to a friend, or rather to a
party of friends, for his own use {ad opus siium). There is
a bargain between them that he is to have the profits and
Ill Wills made and Burdens evaded 27
the enjoyment of the land, while the feoffees are to be the
legal owners. Many objects can be gained by such a scheme,
(i) One may thus evade the feudal burdens of wardship and '•
marriage. Of course if you had a single feoffee and he left an
heir under age, the scheme would break down, for the lord
would claim a wardship of this infant heir. But the plan was, as
I have said, to enfeoff, not a single friend, but a party of friends
— sometimes as many as ten — as joint tenants, and as these
feoffees died off fresh feoffees could be put in their places so
that the lord's chance of a wardship could be reduced to nil.
The lord could not look behind the feoffees ; they were his
tenants ; it was nothing to him that they were allowing
another person to enjoy land which by law was theirs. (2) So
too the law of forfeiture for treason and escheat for felony
could "be evaded. The king and the lord could not look
behind the feoffees to the feoffor who had no longer any
rights in the land, while that every one of seven or eight
feoffees should commit treason was hardly to be expected.
(3) The Statutes of Mortmain might be evaded. If I choose 3
to allow the members of a religious house to enjoy the pro-
ceeds of my land, this is no breach of the Statutes. That
house is not the owner of the land for I am the owner.
(4) One might defeat one's creditors in this way. I incur -
debts ; my creditors obtain judgment, they obtain a writ of
elegit ; they come to seize my land ; they find that I have
not got any land to seize, and you must not seize the land of
X, Y and Z, because A owes you a debt. (5) Lastly, by i
means of this device one could give oneself the power of
making something very like a will of lands. My feoffees
undertake to carry out any testaiiientary disposition that I
may make of the land which has been conveyed to them.
Why should they not do so? I do not attempt to devise
land by my will, I merely request certain people to deal in a
certain way with land which belongs to them, not to me.
You will see that the success of this scheme would have
been marred if the courts of law had compelled the feoffees to
fulfil the honourable understanding by virtue of which they
had acquired the land. If they had begun to say 'After all
this land is the feoffor's land ; the feoffees are a mere screen,
28 Lectures on Rqirity Lect.
or the feoffees are merely the feoffor's agents,' then the whole
scheme would have broken down — wardships, marriages,
forfeitures, escheats would have followed as a matter of
course. But the common law was not prepared to do this.
It had no forms of procedure, no forms of thought, which
would serve for these cases. They could not extend the law
of conditional feoffments to meet these uses, for the uses were
too vague. The feoffees are not enfeoffed upon condition that
they shall do just some one definite act ; a prolonged course
of conduct active and passive is required of them. But you
may say — Why at all events should not the courts of law treat
this bargain as a contract ? An agreement there certainly is.
In consideration of a conveyance made by A to X, Y, Z, the
said X, Y, Z agree that they will hold the land for the behoof
of A, will allow him to enjoy it and will convey it as he shall
direct. Now I think it very right that we should observe
how a use, or in modern terms, a trust generally has its origin
in something that we can not but call an agreement. The
feoffee to uses did agree, the modern trustee does agree that
he will deal with the land or the goods in a certain way. If
therefore in the fourteenth century our law of contract had
taken its modern form, I think that the courts of law would
have been compelled to say ' Yes, here is an agreement ;
therefore it is a legally enforceable contract, and if it be
broken an action for damages will lie against the infringer.'
This might well have been done if the feoffee had covenanted
by deed to observe the confidence that was reposed in him ;
and in case there was no deed any difficulty arising from a
want of 'consideration' might have been evaded by a little
ingenuity. But then we have to remember that in the
fourteenth century — and that in the present context is the
important century — the common law had not yet begun to
enforce 'the simple contract' — it had not yet evolved the
action of assumpsit out of the action of trespass. If A
conveys land to X, Y and Z and they promise to hold the
land for his behoof and to obey his directions, this is as yet an
unenforceable promise unless it be made by a document under
seal. In the fifteenth century the courts of common law
acquired the action of assumpsit and it may be a little difficult
Ill Why the Courts ignored Uses 29
for us to understand why they did not then begin to enforce
the agreements — for agreements they are — in which uses have
their origin. The answer, I think, is that by this time they had
missed their opportunity once and for all — the Chancellor was
already in possession, was already enforcing uses by means of
a procedure far more efficient and far more flexible than any
which the old courts could have employed. Besides, as I have
already said, the objects which men were seeking to obtain by
means of uses could hardly have been attained if the courts of
common law had begun to ascribe any legal effect to the use.
Some of those objects may have been discreditable enough —
men ought not to defraud their creditors — but others of those
objects had the spirit of the time in their favour. Feudalism
had ceased to be useful ; it had become a system of capricious
exactions — it was very natural and not dishonourable that men
should attempt to free themselves from the burdens of reliefs
and wardships and marriages, from the terribly severe law of
forfeiture and escheat for crime, that they should wish to
make wills of land or go very near to making them. Do not
be persuaded that the common lawyers looked with disfavour
upon uses — the great Littleton himself had land held in use
for him.
Meanwhile the Chancellor had begun to enforce these
bargains. Why should he do so } Why should he not do so .-*
Let me repeat once more — I shall have to come back to this
over and over again — that use, trust or confidence originates
in an agreement. As to the want of valuable consideration
for the trustee's promise, it might, I think, fairly be said that
even if there is no benefit to the promisor, the trustee, there
is at all events detriment to the promisee, the trustor, since he
parts with legal rights, with property and with possession.
Men ought to fulfil their promises, their agreements; and they
ought to be compelled to do so. That is the principle and
surely it is a very simple one. You will say then that the
Chancellor begins to enforce a personal right, a jus i?i
personam, not a real right, dijiis in rem — he begins to enforce
a right which in truth is a contractual right, a right created
by a promise. Yes, that is so, and I think that much depends
upon your seeing that it is so. The right of cestui que use or
30 Lectures on Equity Lect.
cestui que trust begins by being a right in personam. Gradu-
ally it begins to look somewhat like a right in rem. But it
never has become this; no, not even in the present day.
This I hope to explain at length in some future lecture.
At present let us notice that during the fifteenth century uses
of lands became very common — already in the fourteenth the
practice has begun among the great and we find the famous
John of Gaunt disposing by his will of lands which are held
to his use by feoffees. We find that Henry of Bolingbroke,
afterwards Henry IV, is a cestui que use and Gascoigne C. J.
is one of his feoffees. He provides for Thomas, John and
Joan Beaufort, his illegitimate children, with remainder over
to his right heirs. About the first will of land purporting to
be held to the use of the testator is in 1381 and is that of
William, 4th Lord Latimer — the hero of the first parliamentary
impeachments Immediately there was a rapid spread of the
new institution, and about the year 1400 the Chancellor has
interfered between the cestui que use and the feoffees. It is
a little strange that he (the prime minister as it were) should
interfere. For the king (always lord) is losing on all hands.
The interests of the great lords are divided, for they are both
lords and tenants. There is need here for further investiga-
tion. Perhaps we may suppose a scandalous case ; and inter-
vention by the Chancellor without much reflection, urged by a
shock to public morality. Henry V had land held to his use^.
Did the Chancellor ask himself what sort of right he was
giving, whether in rem or in personam ; did he ask himself
under what rubric this new chapter would stand .-* Probably
not. As between the feoffor {cestui que use) and the original
foeffees the case is plain — it is scandalous dishonesty if the
feoffees disregard the trust.
It might have been regarded as a breach of contract. But
this was not done, perhaps because breach of contract was a
matter for the common law. At any rate the language of
contract was not used — there was no formal promise exacted
1 The will of Lord Latimer, 1381, Test. Ebor. Surtees Society Publications,
vol. IV, p. 113; that of John of Gaunt, ib. p. 223 — Feb. 3, 1398.
2 For the earliest known instances of apiilication for the Chancellor's inter-
ference see Select Cases in Chancery. Selden Society's Publications, vol. X,
pp. 48, 69, et al. — between 1396 and 1403.
Ill Nature of the Chancellors Remedy 31
from the feoffees, no 'obligo vie' etc. It seems to be felt from
the first that contract is not what is wanted — that contract
won't do.
There is one strong reason against treating it as a contract,
the feoffor (who is cestui que 7cse) has then a chose in action
and this would be inalienable. But our landowner did not
mean to exchange ownership of land for the (inalienable)
benefit of a promise.
No, there is no 'obligatory' language: all is done under
cover of ' use ' ; a little later of ' confidence ' and ' trust.'
Secondly, we see this at an early time : the remedy is
given not to the trustor but to the destinatory. In the earliest
fnsfances the trustor and the cestui que trust (or use^ are the
same person — still it is as destinator}', not as ' author of the
trust' that he has the remedy. This, marks it ofT from
contract Refer to John of Gaunt's will ; consider the dis-
position in favour of the Beauforts — it would not do to give
the remedy to John of Gaunt's heir: he is the very person
who is interested in breaking the will.
This principle runs through our law of equity to the
present day — the destinatory, beneficiary, cestui que trust has
the remedy. (It is an unfortunate term, 'cestui que trust',
with an obscure history. It suggests a falsehood at this
point.)
Thirdly, as regards estates and interests the common law
of land is to be the model — acquitas sequitur legem — see, c.g.^
the estates tail with remainders given to the Beauforts by
John of Gaunt. We shall have to speak of this afterwards in
connexion with the modern law of trusts. The new class of
rights is made to look as much like rights in rem (estates in
land) as the Chancellor can make them look — that is in
harmony with the real wish of the parties who are using the
device. They also are taking the common law as their model.
Thus we get a conversion of the use into an incorporeal thing
— in which estates and interests exist — a sort of immaterialized
piece of land. This is a perfectly legitimate process of ' thing
making' and one that is always going on. For an old example
you may take the advowson ; new examples are patent right,
copyright : goodwill is now in the very process.
32 Lectures on Equity Lect.
But (fourthly) the Chancellor can not create new rights /;/
rem. So to do would be not to supplement but to overrule
the common law. Besides, if he had made this attempt the
whole scheme of obtaining quasi-testamentary power would
have broken down. Once say cestui que trust is really owner,
it follows that he can not make a will, and on his death reliefs,
wardships and so forth must follow.
Here perhaps is the reason why the courts of law did
nothing for cestui que nse. If they had allowed cestui que
use any sort of right the whole scheme might have broken
down. A great question of policy would be opened — if wills
of land are to be made then the king should be compensated.
Men prefer to live from hand to mouth rather than open
big questions. The great Littleton had made a will (Litt.
sec. 462-3).
Fifthly, the greatest question remains — against whom is
a trust enforceable? This is the line of development — as
regards purchasers all is to depend on conscience. If you buy
with notice, then in conscience it is my land. In the modern
sense it depends on notice actual or constructive. We shall
come to the actual rules hereafter ; in the meanwhile we may
contrast statements such as that of Salmond in \i\s Jurispru-
dence, who speaks, at p. 278, of the cestui que trust as ' the
real ownerV and of the right of property of the trustee as
'fictitious,' with the treatment of their respective rights by
Professor Langdell in the Harvard Laiv Revieiv, volume i,
at page 59.
Some have thought that this new jurisprudence of uses
was borrowed from the Roman law ; that the English use or
trust is historically connected with the ^ovci2CC\fidei commissum.
I do not myself believe in the connexion. One reason for this
disbelief I will at once state because it leads on to an important
point. From the first the Chancellors seem to have treated
the rights of the cestui que use as very analogous to an estate
in land. They brought to bear upon it the rules of the
English land law as regards such matters as descent and the
like. The cestui que use may have an estate in the use, it
1 Salmond, Jtirisprudeuce or the Theory of the Law. The reference is to the
1st ecUiion, 1902. See 2nd edition, 1907, p. 230.
in Re stilt lug Uses 33
may be an estate in fee simple descendible to heirs general,
an estate in fee tail descendible to heirs of the body, an estate
for life, or it may be a chattel interest, a term of years in the
use. As regards all these matters the maxim was that equity
should follow the law. It was not a rule without exceptions,
for, as you are aware, it was possible to make certain limita-
tions of the use which could not be made of the legal tenancy
of the land — there might be springing uses and shifting uses
whereas the common law allowed the creation of no future
estate that was not a true remainder. But still the rule was
very generally observed. The use came to be conceived as a j
sort of metaphysical entity in which there might be estates ;
I very similar to those which could be created in land, estates
lin possession, remainder, reversion, estates descendible in this ,
Way or in that.
Uses seem to have become so common that the Chancellors
were able to introduce even the doctrine of resulting uses. A
enfeofts X and there is no consideration for the feoffment, it
is presumed (so common have uses become) that A does not
intend that X shall enjoy the land ; it is presumed that X is
to hold to the use of A. If A really wishes to make a gift of
the land to one who is not his kinsman he must declare that
the feoffment made to X and his heirs is made to the use of
X and his heirs. This I say is so if X be not a kinsman of
A. The law of consideration is yet in its infancy. It is being
evolved contemporaneously in the courts of common law in
connexion with simple contracts, and in the Court of Chancery
in connexion with trusts — and the Court of Chancery holds
that blood relationship, though not a valuable consideration, is,
as the phrase goes, a good consideration to raise a use. That
doctrine, as I understand, still holds good in our own day.
A makes a grant unto X and his heirs, saying nothing about
a. use. , If there be no valuable consideration, and if X be not
a kinsman of A, the use results which, at the present day,
means that nothing passes from A to X, but it is otherwise if
there is a tie ot blood between A and X ; for this, though it
be not a valuable consideration, though it would not support
a parol promise, is a good enough consideration to raise a
use.
M. E. o
34 Lectures on Equity Lect.
I shall have more to say of resulting uses by and by ; I
was led to mention them because the doctrine about them
shows that feoffments to uses had become extremely common,
insomuch that it is assumed as a general rule that if a man
gratuitously parts with his land he intends to keep the use to
himself and does not mean that the feoffee should profit by
the gift.
More than once the legislature had to take notice of uses.
A statute of 15 Ric. II, cap. 5 prevented religious and other
corporations from evading the Statutes of Mortmain by means
of uses. Other statutes from the first half of the fifteenth
century provide that in certain cases a cestui que use in posses-
sion of land may for certain purposes be treated as the legal
owner of it. The practice of enfeoffing to uses, as I have said,
spread rapidly downwards among the people. The feoffor in
possession had become extremely common, and a statute of
Richard III shows both the prevalence of the institution and
the difficulties that arose under it. This statute — i Ric. Ill,
cap. I — the first act of a king with a shaky title, recited that
' Forasmuch as by privy and unknown feoffments great
unsurety, trouble, costs and grievous vexations daily grow
among the king's subjects, insomuch that no man that
buyeth any lands tenements... &c., nor women that have
jointures or dowers in any lands tenements or other heredita-
ments, nor men's last wills to be performed, nor leases... nor
annuities... be in perfect surety nor without great trouble and
doubt of the same, because of the said privy and unknown
feoffments.' Observe the words favourable to last wills. The
statute then in effect enacted that every estate made by any
person should be good not only against him but against all
persons seised or claiming to the use of him or his heirs.
That would prevent the feoffee acquiring merely an estate by
wrong or no estate at all. Henceforth both feoffee and cestui
que use can make an estate. In effect it gave a sort of statu-
tory power of alienating the legal estate.
At last there comes the famous Statute of Uses (1535,
27 Hen. VIII, cap. 10). A long preamible states the evil
effects of the system and legal writers of a later day have
regarded the words of this preamble as though they stated a
Ill The Statute of Uses 35
generally admitted evil. As a matter of historical fact this is
not true. The Statute of Uses was forced upon an extremely
unwilling parliament by an extremely strong-willed king. It
was very unpopular and was one of the excuses, if not one of
the causes, of the great Catholic Rebellion known as the
Pilgrimage of Grace. Itj^vas at once seen that it would deprive
men of tiiat testamentary power, that power of purchasing the
repose of their souls, which they had long enjoyed. The king
was the one person who had all to gain and nothing to lose
by the abolition of uses.
You may read the Statute of Uses at length in Digby's
History of the Laiv of Real Property. The important clause
in this statute is the first. It is long and verbose ; but when
we have rejected what is unnecessary it reads thus — Where
any person or persons shall be seised of any lands or other
hereditaments to the use, confidence, or trust of any other
person or persons, in every such case such person and persons
that shall fcave any such use confidence or trust in fee simple,
fee tail, for term of life or for years or otherwise shall stand
and be seised deemed and adjudged in lawful seisin, estate
and possession of and in the same lands and hereditaments
irTsuch like estates as they had or shall have in the use.
Now I am not going to pronounce an exhaustive com-
mentary on this section, for I only wish to speak of uses in so
far as this is absolutely necessary in order that I may speak
of the modern law of trusts. But there are a few points which
you will of course remember.
1. This statute abolished the power of devising a use
which men had herefofore enjoyed. The use was now the
legal estate and the legal estate of freehold could not be
devised except by special local custom. Then, as you will
remember, a statute of 1540, 32 Hen. VIII, cap. i, which was
followed by an explanatory act of 34-5 Hen. VIII, cap. 5,
gave a certain power of devising freehold land. It however
drew a distinction between lands held by knight's service and
land held by socage, which was maintained until the statute
12 Car. II, cap. 24 (1660) abolished the military tenures.
2. It introduced two new methods of conveying freehold ;
it put the covenant to stand seised and the bargain and sale
3— a
36 Lectures on Equity Lect.
by the side of the feoffment. If A, having the legal estate, had
covenanted that he would stand seised to the use of B, this
before the statute had given B a use in the land. After the
statute it passed the legal estate to B. If A for valuable
consideration agreed to sell the land to B this mere agreement
— there was no need for a deed, there was no need for a
writing — had, before the statute, given B the use of the land —
the bargainor became seised to the use of the bargainee.
After the statute such a bargain and sale would have the
effect of conveying the legal estate to B. Then, as you know,
in the same year another statute provided that every bargain
and sale of an estate of inheritance should be by deed enrolled
(27 Hen. VIII, cap. 16). But this Statute of Inrolmcnts did
not extend to bargains and sales for terms of years, and then,
as you know, the mode of conveyance by lease and release was
invented — and men succeeded in conveying freehold without
livery of seisin and without an enrolled document which
would be open to the eyes of the public. •
3. The statute had the effect of enabling men to make
certain limitations of the legal estate which they had not
previously been able to make. This effect is often described
fn picturesque language'. The use had been more flexible
than the legal estate, and now the use imparted its flexibility
to the land. The only future estates that a man could create
at common law were remainders strictly and properly so
called — but as regards the use the Chancellors had disregarded
some of the ancient rules — and now the legal estate went
along with the use. Executory limitations of the use, and
therefore of the legal estate, became possible — legal estates
could be made to 'spring' and to 'shift' by means of spring-
ing and shifting uses.
But all this lies rather within the province of a lecturer on
real property law than in the province of a lecturer on trusts.
However, it is absolutely impossible for one to speak of trusts,
even at the present day, without speaking first of uses. For
one would of course like to answer the question — How can a
trust be created? — and this unfortunately we cannot do without
touching the learning of uses. A document is put before
1 The allusion apparently is to ChtidleigKs Case, i Rep. at p. 124 a, and Chaliis,
Laiv of Kcal Propirty, 2nd edition, 352.
Ill Scope of the Statute of Uses 37
us. Does it or does it not create a trust ? That often is a
question which involves an interpretation of the Statute of
Uses. Thus — to put a very simple case — a testator says, I
devise and bequeath all my freeholds, copyholds and lease-
holds, and also all my personal estate unto A in trust for B.
Is there here a trust? Must we distinguish the freeholds
from the copyholds and the chattels? It is from this point
of view that I must say a few words about the statute.
1. The statute has no word about chattels personal, and
does not affect the law or the equity which concerns them in
any way.
2. The statute does not in any way affect the law, the
equity or the customs by which copyholds are governed.
"^ 3. It is often said that the statute does not apply to
leaseholds, to terms of years. This is true, but it requires
e3cplanation. In order that the statute may be applicable it
is essential that we should find one person (A) seised to the
use of another person (X). Now seisin implies freehold.
Therefore, if we find that A has merely a chattel interest in
the land, the statute has nothing whatever to say to the case.
On the other hand, suppose we find that A is seised to the use
of X, then the statute does apply albeit that X has been given
a mere term of years in the use. If you will read the statute
you will see that it expressly meets this case. If one person
(A) be seised to the use of another person (X) then such
person (X) as shall have any such use ' in fee simple, fee tail,
for term of life, or for years or otherwise' is to be deemed and
adjudged in lawful seisin and possession of the land for the
same estate that he had in the use. Therefore, suppose that
I, being tenant in fee simple, convey land unto A and his heirs
to the use of or upon trust for X for the term of looo years,
here we have a case e.xpressly provided for by the statute :
the term of years given to X will be a legal term of years.
But then — for we will go on with the story — suppose that
X, having this term of years, assigns it to B to the use of Y, —
this case is outside the statute, for X is not seised, B will not
be seised, and the statute does not find any person seised to
the use of Y. Therefore, it is true to say that the statute does
not apply to the conveyance or assignment Oi~ a term of years
38 Lectures on Equity Lect.
when once that term has been created. But it may well apply
to the creation of a term of years. In settlements of real
estate it is common for the settlor to create by means of uses
not only freehold estates, but also terms of years. These
terms of years are given to trustees in order that they may
raise portions for younger children, and the like, and they are
legal terms. Thus, on my marriage, I convey land to X and
Y and their heirs to the use of myself for life, and after my
death to the use of T and T' for a term of 1000 years, and,
subject to that term, to the use of my first and other sons
successively in tail male. The Statute of Uses will take effect
not only as regards the freehold estates given to me and my
sons but also as regards the term of years given to T and T'
— it will be a legal term, for X and Y are found seised to the
use of T and T' — and wherever one person is seised to the
use of another, there the statute steps in. That is the true
test. Do you or do you not find one person seised to the use
of another ?
4. The statute applies wherever one person is seised 'to
the use, confidence or trust' of another. These three words
are used as synonyms. To convey to A upon trust for X,
this has precisely the same effect as conveying to A to the
use of X. And no doubt there are other expressions which
will do as well. The words ' use ' and ' trust ' are not sacra-
mental terms. But the statute only applies where there is a
siniple use, trust or confidence — it does not apply where there
is an active trust. I convey land unto A and his heirs, to the
use that they shall sell the land and divide the proceeds
among my children, or upon trust that they shall so sell and
divide. The statute has nothing to say to this case. You
do not find one person seised in trust for another person —
you find A seised upon trust to make a sale.
The line which divides the simple use, trust or confidence,
which is within the statute, from the active trust, which is
not within the statute, is often a very fine one. The test
seems to be this. Does the instrument before us merely tell
A that X is to have the enjoyment of the land, or does it
impose upon A some more special duty? Thus I convey
unto A and his heirs upon trust to permit X to receive the
Ill Scoi)c. of the Statute of Uses 39
profits of the land during his life. This is a simple use, trust
or confidence — I am only saying in effect that A is to hold
for X's benefit. The statute operates, and X has a legal
estate. On the other hand I convey to A and his heirs upon
trust to collect the rents and profits of the land and pay them
to X during his life. Here I impose an active duty on A,
he is to collect rents and pay them to another. Here the
statute does not come into play, and the legal estate remains
in A.
Very difficult cases have arisen where the formulas have
been run together — thus ' in trust to pay the rents and profits
to X or to permit him to receive the same,' or ' in trust to
permit X to receive the rents or to pay them to him.' Courts
of law have attempted to meet these cases by saying that in
a deed the first phrase is the important one, while in a will
the last phrase prevails. Thus in a deed the words ' in trust
to pay the rents and profits to X or permit him to receive
the same' will leave the legal estate in A, while in a will
these same words will carry the legal estate to X. I do not
wish to go into these cases of interpretation — but just note
that the statute only applies where you have a use or trust
which, either in terms or in effect, is just simply a use or
trust for X. If the instrument in question leaves any dis-
cretionary power to A — if, for example, he is to divide the
income between X, Y and Z in such shares as he shall think
proper, that of course is a ground for holding that he is and
they are not to have the legal estate.
Let us take as examples two cases, Baker v. White and
Van Grntten v. Foxzvell; and in the latter case you ought all
to read Lord Macnaghten's famous judgment on the origin
and history of the Rule in Shelley's Case.
In Baker v. White, L.R. 20 Eq. 166 (1875), there was a
devise of freeholds and copyholds to A and B to hold the
same to A and B their heirs, executors, administrators and
assigns, upon trust, during the life of J, to receive the rents
thereof and pay them to J for life or otherwise to permit J to
receive them ; followed by a devise after J's decease to the
use ot the heirs ot his body. The testator appointed A, B
and J executors and declared that the receipt of the trustees
40 Lectures on Equity Lect.
and executors for any money payable under the will should
be a sufficient discharge :
It was held b}' Sir George Jesscl, then Master of the Rolls,
that J took a legal estate tail in the freeholds and an equitable
estate for life in the copyholds.
In Van GnUten v. Foxtvell, 1897, A.C. 658, the limitations
— applicable to the case which happened, of an only child —
were these : a devise to X and Y in trust to receive the rents
and profits for the use and benefit of the testator's daughter,
B, and to apply them in the maintenance and education of B
while under age, and after majority to permit and suffer B to
take the rents and profits for her life and after B's death X
and Y are to stand seised in trust for the heirs of the body
of B. ' Such lands to be legally conveyed to such heirs.'
The main question was whether the rule in Shelley s Case
was applicable in this case, since there were abundant expres-
sions in the will which showed that to apply that rule would
defeat the testator's intention.
The will might have been read as giving the trustees the
legal estate only during the minority and again after the
death of the tenant for life. It was held, however, that the
legal estate vested in the trustees throughout, that the rule
in Shelley's Case applied, and that B took an estate tail.
Lord Herschell, at page 662, said * It is well settled that if
the estate taken by the person to whom the lands are devised
for a particular estate of freehold and the estate limited to the
heirs of that person are not of the same quality, that is to say
if the one be legal and the other equitable, the rule in Shelley's
Case has no application. If they are either both legal or both
equitable the rule applies. Although the legal estate is in the
present case vested, in the first instance, in the trustees, there
is no doubt that the language of the will by which the trustees
are to permit and sufier his child to receive the rents and
profits for her sole use and benefit is sufficient, if those words
stood alone, to pass the legal estate to the testator's child.
It is equally clear however that the trusts of the will require
that prior to his child attaining twenty-one the legal estate
should be in the trustees, and that it should again be in the
trustees after his child's death. Where there are such dis-
Ill No Use upon a Use 41
positions as are to be found in the present case, I think the
true view is that the legal estate remains throughout in the
trustees and that the estate of the beneficiaries is equitable
only.'
Lord Davey, at page 683, said ' It is admitted that
during the minorities of the testator's children the purposes
of the will require that the trustees shall take the legal estate.
It is also admitted that after the death of the children the
trustees must take the legal estate in order to enable them
to convey to the heirs of the children, at twenty-one, and in
the mean time to receive the rents, issues and profits, and
provide for the maintenance and education of " such heirs."
But it is said that the words of gift to the children after
attaining majority are such as to give them the legal estate
during their lives. The words applicable, in the event which
has happened, are " If I have only one child, then to permit
and suffer such one child to have receive and take the said
rents &c... .during her life." No doubt the words "permit
and suffer" are sufficient to pass the legal estate; but it is
not an absolute rule and the words are not inconsistent with
the legal estate remaining in the trustees, though, they have
no duties to perform. It is a convenient rule that where
there are recurring occasions for the exercise of active duties
by the trustees and no repeated devises to them to enable
them to perform their duties, the legal estate, if once in the
trustees, is to be deemed to be~vested in them throughout,
n ot w i fhstan ding the duration in the mean time of what would
but for the recurring duties be construed as uses executed in
the beneficiaries.'
5. It is commonly said that the main result of the Statute
of Uses is to add three words to every conveyance. The
story is told thus : Shortly after the statute, in Tyrreirs Case,
I557\ a Court of Common Law holds that there can not
be a use upon a use. This is often regarded as a purely
um-ea'sonable decision for which far-fetched explanations must
be sought — e.g. that the phrase ' no use upon use ' was a well-
known phrase importing prohibition of compound interest.
1 Dyer 155. The case is printed also in Digby's Hisiory 0/ the Law of Real
fj opei iy.
42 Lectures on Equity Lect. hi
This dogma being propounded, it is supposed that the
Chancellor at once sees his opportunity, and says in effect
* I will enforce these secondary uses just as I did enforce
primarj' uses before the statute.'
Professor Ames' has shown that this story is not true — in
two respects : first the decision in Tyrrell's Case is not
inexplicable ; and secondly the interference of the Chancellor
in favour of the secondary use did not take place for about a
century after the Statute of Uses.
Mr Cyprian Williams in the latest editions of Williams on
Real Property has adopted Professor Ames's theory and has
given a most excellent statement of it — so excellent that I
should like you to read it. It is in section iv of chapter 7 at
pages 173 to 176 of the 20th edition.
^ In an article in The Green Ba^ IV Si. His reasons are briefly cited in a
note at page 174 of the 20th edilion of IVillianis on Real Prcperty.
LECTURE IV.
THE MODERN TRUST,
We are now to consider the main outline of the modern
law of trusts. We call it law and such in the wide sense of
that word it is, but remember also that technically it is all
equity, and that we constantly have to distinguish the rules of
equity from the rules of law.
No doubt we should like to begin our discussion with a
definition of a 'trust.' But I know not where to find an
authoritative definition. This is how a distinguished writer,
Mr Lewin, deals with the matter:
'As the doctrines of trusts are equally applicable to real
and personal estate, and the principles that govern the one
will be found mutatis mutandis to govern the other, we cannot
better describe the nature of a trust generally, than by
adopting Lord Coke's definition of a use, the term by which
before the Statute of Uses a trust of land was designated. A
trust, in the words applied to the use, may be said to be "A
confidence reposed in some other, not issuing out of the land,
but as a thing collateral annexed in privity to the estate oi
the land, and to the person touching the land, for which cestui
que trust has no remedy but by subpoena in the Chancery \" '
This definition, if definition it is to be called, comes from
Coke upon Littleton 272 b ; it is of interest and I shall return
to it. But to say that a trust is a confidence is not very
useful ; for if we go on to ask what is a confidence, we shall
probably be told that it is a trust. There is another objection
— This definition or description seems to involve the assertion
that wherever there is what is technically called a trust, there
is what in ordinary speech would be called some trust, some
* nth edition, p. n.
44 Lectures on Equity Lect.
reliance, or confidence reposed by one person in another.
Now that may be true of nine trusts in ten. If I convey land
to )'ou as a trustee for me, or as a trustee for my wife and
children, there is not merely what our law calls a trust, there
really is trust placed by me in you; I do trust you, I do place
confidence, faith, reliance in you. In such a case it well may
be that the cestui que trusts do not place any reliance or
confidence in the trustee. I pay over to you a sum of money
upon trust for my son, you agree to hold it upon trust for him
— here I, the trustor, the author of the trust, do place con-
fidence in you the trustee. But then I am not to be the
cestui que trust ; my son is the cestui que trust, and this trust
may be perfectly constituted although he knows nothing about
it. He perhaps is a baby in arms, or perhaps he is in
Australia, or even perhaps he is unborn, for you may have a
trust for an unborn person or an unascertained person. Here
it can not be said that cestui que trust places any trust or
reliance in the trustee. But further we may well have a trust
although no person has in any ordinary sense of the word
placed trust or reliance in the trustee. At this moment I
declare to you by word of mouth that I constitute myself a
trustee of this watch for my eldest daughter. There is already
a perfect trust in the technical sense. So soon as my daughter
has heard what has happened she can enforce the trust against
me ; I am a trustee ; she is my cestui que trust — yet it is
obvious that during the interval, and that interval may be
several years, she has not been placing trust in me, or con-
fidence in me; she has known nothing of my declared intention
to hold the watch in trust for her.
Where judges and text- writers fear to tread professors of
law have to rush in. I should define a trust in some such way
as the following — When a person has rights which he is
bound to exercise upon behalf of another or for the accom-
plishment of some particular purpose he is said to have those
rights in trust for that other or for that purpose and he is
called a trustee.
It is a wide vague definition, but the best that I can make.
I shall comment on it by distinguibhing cases of trust from
some other cases.
IV Definition of a Trust 45
1. The trustee is bound to use his rij^hts in a certain way,
bound to use them for the benefit of another, or for the
accompHshment of a certain purpose. One is not made a
trustee by being bound not to use oiie's rights in some
particular manner. On every owner of lands or goods there
lies the duty of not using them in various ways. The law of
torts largely consists of rules which limit the general rights
of owners. I must not dig a quarry in my land so as to cause
the subsidence of my neighbour's land. If I do this I commit
a wrong and give my neighbour a cause of action ; but of
course I am not a trustee of my land for him.
2. A debtor is not a trustee for his creditor. I am
heavily Indebted. Certainly I ought not to give away my
goods and thus prevent my creditors from obtaining payment
of what is due to them. If I do so a court with bankruptcy
jurisdiction may punish me. What is more, conveyances or
assignments of property may be set aside as being frauds
against creditors. For all this I am not a trustee for my
creditors. No creditor can point to a particular thing or a
particular mass of rights and say, 'You were bound to use that
or to retain that for me or to hand it over to me.' The
creditors, unless they be mortgagees, have merely rights in
personam ; if they be mortgagees they have also rights in
rem ; but in neither case is there any trust.
3. We must distinguish the trust from the bailment. This
is not very easy to do, for in some of our classical text-books
perplexing language is used about this matter. For example
Blackstone defines a bailment thus : ' Bailment, from the
French bailler, is a delivery of goods in trust, upon a contract
expressed or implied, that the trust shall be faithfully executed
on the part of the bailee ' {Conun. II 45 1).
Here a bailment seems to be made a kind of trust. Now
of course in one way it is easy enough to distinguish a
bailment from those trusts enforced by equity, and only by
equity, of which we are speaking. We say that the rights
of a bailor against his bailee are legal, are common law rights,
while those of a cestui qne triTsi against his trustee are never
common law rights. But then this seems to be a putting of
the cart before the horse ; we do not explain why certain
46 Lectures on Equity Lect.
rights are enforced at law while other rights are left to
equity.
Let us look at the matter a little more closely. On the
one hand we will have a bailment — A lends B a quantity of
books — A lets to B a quantity of books in return for a
periodical payment — A deposits a lot of books with B for
safe custody. In each of these cases B receives rights from
A, and in each of these cases B is under an obligation to A ;
he is bound with more or less rigour to keep the books safely
and to return them to A. Still we do not I think conceive
that B is bound to use on A's behalf the rights that he, B, has
in the books. Such rights as B has in them he has on his
own behalf, and those rights he may enjoy as seems best to
him. On the other hand, S is making a marriage settlement
and the property that he is settling includes a library of
books ; he vests the whole ownership of these books in T and
T' who are to permit S to enjoy them during his life and then
to permit his firstborn son to enjoy them and so forth. Not
unfrequently valuable chattels are thus settled so that whoever
dwells in a certain mansion during the continuance of the
settlement shall have the use of the pictures, books, plate, and
so forth. Now here T and T' are full owners of the chattels.
S and the other cestui que trusts have no rights in the chattels,
but T and T' are bound to use their rights according to the
words of the settlement, words which compel them to allow S
and the other cestui que trusts to enjoy those things.
You may say the distinction is a fine one, almost a
metaphysical one — and very likely I am not stating it well
— but there are two tests which will bring out the distinction.
The one is afforded by the law of sale, the other by the
criminal law.
(a) A is the bailor, B is the bailee of goods; B sells the
goods to X, the sale not being authorised by the terms of the
bailment and not being made in market overt or within the
Factor's Acts. X, though he purchases in good faith, and
though he has no notice of A's rights, does not get a good
I title to the goods. A can recover them from him ; if he
converts them to his use he wrongs A. Why } Because he
bought them from one who was not owner of them. Turn to
IV Trusts and Bailments 47
the other case. T is holding goods as trustee of S's marriage
settlement. In breach of trust he sells them to X; X buys
in good faith and has no notice of the trust. X gets a good
title to the goods. T was the owner of the goods ; he passed
his rights to X ; X became the owner of the goods and S has
no right against X — for it is an elementary rule, to which I
must often refer hereafter, that trust rights can not be enforced
against one who has acquired legal {i.e. common law) owner-
sHTp bona fide, for value, and without notice of the existence
of those trust rights. Here you see one difference between
tlie bailee and the trustee.
{J}) Then look at the criminal law. Even according to
our medieval law a bailee could be capable of the crime of
larceny. If before the act of taking he had done some act
which, as the phrase went, determined the bailment, if for
example the carrier broke bulk and then took the goods —
this was larceny. And now-a-days, as you know, by virtue
of a statute the bailee can be guilty of larceny though apart
from the act of conversion he has done no act determining
the baihnent. But to the trustee of goods who misappro-
priated them the common law of crime had nothing whatever
to say. How could a court of common law have punished
tTie trustee? It said that he was the owner of the goods, and
a man can not steal what he both owns and possesses. Not
until 1857 did it become a crime for the trustee to misappro-
priate goods that he held in trust — and even now the crime
that he commits is not larceny and is not a felony. All this
you may read at large in Stephen's History of the Criminal
Lazv. I refer to it merely in order to show you that despite
Blackstone's definition of a bailment there is a great and
abiding distinction between a bailee of goods and a true
trustee of goods. And the difference I think is this — the
bailee though he has rights in the thing — 'a special property'
or 'special ownership' they are sometimes called — has not the
full ownership of the thing; 'the general ownership 'or 'the
general property' is in the bailor. On the other hand the
trustee is the owner, the full owner of the thing, while the
cestui que trust has no rights in the thing. That statement
that cestui que trust has no rights in the thing may surprise
Il
48 Lectures on Eqztity Lect.
you, but I shall justify it hereafter. The specific mark of
the trust is 1 think that the trustee has rights, which rights
he is bound to exercise for the benefit of the cestui q2te tnist
or for the accomplishment of some definite purpose.
Cases can be conceived where it would be difficult to say
whether there was a bailment by deposit or a trust. For
instance, I go abroad in a hurry and do not know whether I
shall return. I send a piano to a friend, and I say to him,
' Take care of my piano and if I don't return give it to my
daughter.' This may be construed both ways, as a bailment
or as a trust. Perhaps the age of my daughter — a thing
strictly irrelevant — would decide which way it would go.
4. An executor or administrator merely as such is not a
trustee for the legatees or next of kin. I say that he is not a
tTustee merely because he is executor or administrator ; but
he may very easily become a trustee for them and in a given
case it may be hard to decide whether a man has been merely
an executor or administrator or has also been a trustee. The
question may be of great practical importance because the
Statutes of Limitation draw a distinction between an action
by a legatee against an executor and an action by cestui que
trust against his trustee. Take two cases to illustrate this.
Ill re Jane Davis, 1891, 3 Ch. 119, you will find the Court of
Appeal saying that a certain action was an action for a legacy
against an executor as such; and then hi re Stvain, 1891,
3 Ch. 233, you will find Romer J. holding that a certain
action, though the plaintiff was a legatee and though the
defendant was an executor, was not an action brought by a
legatee for a legacy against an executor as such, but was an
action by cestui que trust against a trustee. And see In re
Timinis, 1902, i Ch. 176, and In re Mackay, 1906, i Ch. 25.
This difficulty can I think be explained only by a piece of
history. In the middle ages the proper court for a legatee
who wished to sue an executor for a legacy was neither a
court of common law, nor tlie Court of Chancery, but an
ecclesiastical court, a court Christian. In course of time the
Chancery stole away this jurisdiction from the ecclesiastical
courts. But the legatee's action for his legacy is far older
than the doctrine of trusts and has never been brought within
IV Executors, as stick, ai^e not Trustees 49
that doctrine. I must not go into this matter at any leng-th,
but I must admit that my definition of a trust is somewhat
too wide. In the case of an executor when debts have been
[mid we do find one person fully owner of the goods — for
undoubtedly the executor is the full owner of the goods — and
yet he is bound to use his rights in a particular way, he is
bound e.g. to hand over the testator's watch to I\I and his
books to N — but for all tliis he is not a trustee for M and N.
I must admit that this is so and at present can only append
to my definition the remark that executors and administrators
while acting merely as such are not trustees, and add that a
historical explanation, though hardly any other explanation,
can be given of this.
Observe however the Judicial Trustees Act, 1 896. Section 3
of that Act enables the Court to relieve honest trustees from
liability for breach of trust, in certain cases ; and section i
sub-section 2 says 'The administration of the property of a
deceased person whether a testator or intestate shall be a
trust and the executor or administrator a trustee within the
meaning of this Act.'
So again says the Land Transfer Act, 1897, when altering
the law of inheritance and providing that realty shall pass to
the personal representatives. Section 2 provides that subject
to the powers and rights relating to administration given by
that Act 'the personal representatives of a deceased person
shall hold the real estate as trustees for the persons by law
beneficially entitled thereto.'
The tendency of modern statutes is to equiparate executors
and administrators with trustees. Still, especially as regards the
Statute of Limitations, it is necessary to say that the executor
or administrator in relation to personal estate is not as such
a trustee.
Note the difference between these two wills, ' I give my
watch to A, the rest of my personal property to B, and I
appoint C as my executor'; and *I give all my personal
property to C upon trust as to my watch for A, and as to
the residue for B, and I appoint C my executor.'
5. I have spol-cen of the trustee as having rights which he
is bound to exercise on behalf of another. In many cases
M. E. ~" 4
50 Lectures on Equity Lect.
those rights will be the legal estate in land or the legal
ownership of moveable goods, and these cases indeed are so
common that sometimes people speak as though it were
essential that a trustee should have ' the legal estate.' Uut
really this is not so. In the first place the subject-matter of
the trust may not be a true proprietary right, it may not be
the legal estate in land or the legal ownership of goods, it
may be a mere personal right, the benefit of a contract or debt.
A owes B a sum of money upon a bond or by simple contract;
B on his marriage assigns this debt to T and T' upon certain
trusts for himself, his wife and children. That is a not un-
common case and here the right of the trustees, the right
that is put into trust, is merely y^j- in personam, the right of a
creditor to be paid a certain sum of money. Then again
though there may be land in the case the trustees may not
have the legal estate in it. Let us say that one set of trustees
is holding land upon trust for A during his life with remainder
to B in fee ; B is going to marry ; it is possible that he will
convey his rights to another set of trustees upon certain trusts
for himself, his wife and children. But the rights that he can
convey are themselves merely equitable rights, and the second
set of trustees therefore will have merely equitable rights. It
not unfrequently happens that you will find one set of trustees
standing behind another set. There has been a settlement
and then a sub-settlement. So again when an estate which
is subject to a mortgage is put into settlement, the settlor
having merely equitable rights can (unless he pays off the
mortgage) convey none but equitable rights to his trustees.
6. I have said that the trustee is bound to exercise his
rights on behalf of some other person or for the accomplish-
ment of some purpose. I think that these last words are
necessary. We may of course have a simple trust which
merely binds the trustee to hold for another person : thus T
holds land in fee in trust for A in fee, or T is entitled to a
sum of Consols and the whole equitable right to this sum is
vested in A. Here is a simple trust for another person. But
very often we cannot say that a trustee holds simply on behalf
of another. Take a common case ; T and T' hold land upon trust
to sell it and to divide the proceeds between A, B, and C. Here
IV Charitable and 'Purpose' Trusts 51
if A, B, and C are all of full age and otherwise competent
legal persons, they may say to the trustee ' No, we will not
have the land sold, we prefer to have it kept for us,' and then
the trustee must obey. Still unless they all agree in giving
such a direction to the trustee, his duty is to sell — that is the
purpose or one of the purposes that he is bound to accomplish.
And then of course we may have far more elaborate trusts,
where the trustee's duty is much rather that of accomplishing
a purpose than that of holding on behalf of any ascertained
person. For example S transfers a sum of Consols to T and
T' upon trust that they shall spend the income in giving
prizes for essays on the Law of Trusts according to a scheme
of regulations which he has drawn up. Here there is no one
who can say 'You are holding this fund on my behalf; in
equity it belongs to me.' Of such 'purpose' trusts, chiefly
charitable trusts, I shall not here say much. But they are
not to be left out of sight. They are often characterized by
this — there is no definite cestui que trust. I think we may
say that there is no cestui que trust at all. No private person
can enforce them in his own name. They are enforced by
means of actions brought in the name of the Attorney-General.
If there be any cestui que trust it is the public. Their history
goes back to the Act 43 Eliz. cap. 4\ h^^'-'-'^ '
A very wide sense is given to the word ' charitable.' The
highest recent authority is to be found in the judgments de-
livered in the House of Lords in the case of the Commis-
sioners of Income Tax v. Pemsel, 1891, A.C. 531. The scope
given to the word ' charitable ' nearly equals any purpose
conceived to be directly beneficial to the public or to some
class of the public.
But where is the line to be drawn ? It certainly is far
from clear. »
Take, for instance. In re Scoivcroft, 1898, 2 Ch. 638. The-^»^^^'^'
vicar of a parish devises to the vicar for the time being a
building to be used as a village club and reading room to be
maintained for the furtherance of conservative principles and
religious and mental improvement and to be kept free from
^ This Act was 'An Act to redress the mis-employment of lands goods and
stocks of money heretofore given to certain charitable uses.'
4—2
Lectures on Equity
Lect.
intoxicants and dancing. This was held to be a charitable
purpose.
Then take /;/ re Nottage, 1895, 2 Ch. 649. That was the
gift of a sum oF money with a direction that the interest was to
be expended in providing a cup to be given for the encourage-
ment of yacht racing. Held to be not a charitable purpose.
But compare In re Macduff, 1896, 2 Ch. 451 and Blair v.
Duncan, 1902, A.C. 37. In the former case the Court of
Appeal held that 'philanthropic purposes' were not neces-
sarily charitable; and in the latter case the House of Lords
\ held that a gift ' for such charitable or public purposes as my
I trustee thinks proper' was void for uncertainty. And see
Hunter v. Attorney-General, 1899, A.C. 309. There, Lord
Davey, at page 323, said ' Where charitable purposes are
I mixed up with other purposes of such a shadowy and indefi-
nite nature that the Court cannot execute them (such as
"charitable or benevolent," or "charitable or philanthropic"
or " charitable or pious " purposes), or where the description
includes purposes which may or may not be charitable (such
as '■ undertakings of public utility") and a discretion is vested
in the trustees, the whole gift fails for uncertainty\'
Remember that charitable trusts, provided that they are
': limited to commence within the time allowed by the rule
I against perpetuities, are valid though their objects are per-
petual.
In a {q.\\ cases ' Purpose ' trusts which are not charitable
are upheld — e.g. trusts for the maintenance of a tombstone.
But they must comply with the rule of perpetuities.
Read /;/ re Dean, 41 Ch. D. 552, in which there was a
trust for the maintenance of dogs and horses. It was held to
be valid though not enforceable — there was no cestui que trust
— but there was no resulting trust for the heirs or the next of
kin of the testator.
But it is questionable at present how far this principle
goes. In Ireland trusts for masses for the repose of the soul
are upheld.
^ Cf. Weir\. Crum-Brown, 1908, A.C. 162, where a gift in very large terms
was upheld. 'There is no better rule than that a benignant construction will be
placed upon charitable bequests,' per Loreburn L.C. at psgo 167.
IV Chayitable Trusts
53
On the other hand — if there is a special trust solely for
the benefit of one person — a trust that a trustee shall do
something for his benefit — then this cestui que trust being sui '
juris can put an end to' this purpose trust at any moment that ,
he pleases — e.g. a gift of ^looo in trust to purchase an ^
annuity for C. D. In this case C. I), can demand that the fund
shall be paid over to him instead of being used to buy the
annuity^ Or take a trust of a fund to accumulate until C. D.
attains the age of 24 years and then to pay the accumulated
fund to him. Here C. D. on reaching the age of 21 can stop
the accumulation and demand that the fund shall be paid
over to him forthwith.
It is necessary however as these instances show to take
notice of purpose trusts in any definition of a trust.
This I fear is all that I can say at present about the
definition of a trust. Some points will become clearer to us
as we go along.
Our next question must be How is a trust created? And
here we come upon a classification of trusts which turns upon
the mode by which they are created. Trusts are created
(i) by the act of a party, (2) by the operation of law. I do
not think that these terms are unexceptionable, still they are
well known and useful. A further classification has been
made :
( rExpress
By act of a party \
I (Implied
Trusts J
! Resulting
Constructive
Now I should say that the normal means by which a
person becomes bound by a trust is a declaration made by
him by words or implied in his conduct to the effect that he
intends to be so bound. As I have already hinted this
morning, the creation of a trust may be a perfectly unilateral
act — there may not be more than one party to it — and we
^ And even where the annuitant dies before the annuity can be purchased his
estate is entitled to such a sum as the annuity would have cost. See In re
J\obbins, 1907, 2 Ch. 9.
54 Lectures on Equity Lect.
may fail to find in it any element that could in the ordinary
use of words be called trust or confidence. I declare myself
a trustee of this watch for my son who is in India. If
afterwards I sell that watch, although my son has never
heard of the benefit that I had intended for him, I commit
a breach of trust and my son has an equitable cause of action
against me.
But though this be so the commonest origin of a trust is a
transaction between two persons. This we may for a while
treat as typical. Here S conveys land, or moveable goods, or
Consols, or a debt, to T upon a trust, and T consents to
execute that trust. We have here an agreement between S
and T, and since that agreement is a binding one — since it can
be enforced by that part of our law which is called equity, we
well might say that there is a contract between S and T.
Indeed I think it impossible so to define a contract that the
definition shall not cover at least three quarters of all the
trusts that are created. For my own part I think that we
ought to confess that we can not define either agreement or
contract without including the great majority of trusts and
that the reasons why we still treat the law of trusts as some-
thing apart from the law of contract are reasons which can be
given only by a historical statement. Trusts fell under the
equitable jurisdiction of the Court of Chancery and for
that very reason the Courts of Law did not enforce them.
Just now and again they threatened to give an action for
damages against the defaulting trustee — but they soon aban-
doned this attempt to invade a province which equity had
made its own. Therefore for a very long time to come I
think that we shall go on treating the law of trusts as
something distinct from the law of contracts — we shall find
the former in one set of books, the latter in another set. Only
let us see that in the common case a trust originates in what
we can not but call an agreement. S transfers land or goods
or debts to T upon a trust; T promises, expressly or by his
conduct, that he will be bound. If you please you can
analyse the transaction into a proposal and an acceptance
— Will you hold this land, these goods, in trust for my wife
and children ? Yes, I will.
IV Acceptance or Disclaimer of Trust 55
You will find it laid down as an elementary rule that no
one can be compelled to undertake a trust. Until a man has
accepted a trust he is not a trustee. You, without my know-
ledge, convey land unto and to the use of me and my heirs
upon trust for X. When I hear of that conveyance I can
renounce the rights and the duties that you have attempted to
cast upon me. If I am prudent I shall very likely execute
a deed saying that I renounce the estate ; but now-a-days it is
clear that even a freehold estate (there used to be doubt about
this) may be renounced by parol. I do not think that in
strictness any active renunciation can be expected of me any
more than I can be compelled to answer a letter in which you
propose to sell me a horse. If, when I hear of the trust I
simply do nothing, then I am no trustee, I thereby disclaim
the estate, hi re Gordon, 6 Ch, D. 531, an estate had been
devised to E. A. upon certain trusts ; three years afterwards
he died, and the question was raised whether he had accepted
or rejected the legal estate and the trust. Jessel M.R. said
*I think that there was sufficient evidence of disclaimer
In the first place we have this, that he never acted ; that is
a very strong circumstance, a man lives three years and does
not act at all. It is a strong proof that he does not intend to
act. Of course it is not in itself conclusive, but it is evidence
that he does not intend to act' In re Birchall, 40 Ch. Div.
at p. 439, Lindley L.J. said ' Formerly it was held that the
legal estate in freeholds could not be disclaimed except by
record ; but that doctrine was given up, and it was held that
the disclaimer could be by deed. Since that time the law
has been carefully considered, and it is now established that
a man's assent to a devise is presumed unless he disclaims,
which may be by conduct, as well as by record or by deed^'
Upon principle, as it seems to me, the law cannot throw
on a man the burden of either accepting or rejecting the
trust : if he does absolutely nothing that can be construed as
an acceptance of the trust, this should be enough. But in
practice it would not be very safe to rely upon this doctrine,
* For an interesting case of disclaimer by a grantee in trust and a decision tluit
the settlement was not rendered inoperative but that the trust was imposed on the
settlor see Alallo/t v. iVilson, 1903, 2 Ch. 494.
56 Lectures on Equity Lect. iv
for one may very easily do something or say something that
can be regarded as an acceptance of the trust. If in any way
one assumes the rights that are to be conferred on the trustee,
one thereby assumes also all the duties of the trust, and when
once those duties are assumed they cannot be easily got rid of,
as we shall see when we speak of the ways in which men cease
to be trustees. Therefore if you hear that any one has been
conveying property to you as a trustee, and you do not wish
to be burdened with a trustee's duties, you will be wise in
repudiating in some emphatic manner the rights and the
duties which were to have been thrust upon you.
Now as regards the formalities necessary to the constitu-
tion of a trust, there is extremely little Jaw — trusts have not
been hedged about by formalities. I believe that I may state
the matter thus : Subject to one section of the Statute of
Frauds and to the Wills Act, a trust can be created without
deed, without writing, without formality of any kind by mere
word of mouth; and subject to certain established rules of
construction no particular words are necessary. This pro-
position I intend to develop next time.
LECTURE V.
CREATION OF A TRUST.
We ended with this: Subject to a certain section of the
Statute of Frauds and to the Wills Act, a trust can be created
without deed, without writing, without formality of any kind
by mere word of mouth; and subject to certain established
rules of construction no particular words are necessary. We
will now develop this proposition.
In the old days no deed, no writing, was necessary to
create a use, trust or confidence. I enfeoff you, and by word
of mouth I declare that you are to hold to the use of X^
You must hold to the use of X As to trusts this still is
law, except in so far as it has been altered by the Statute
of Frauds.
By that Act, 29 Car. II, c. 3, s. 7, 'All declarations of or
creations of trusts or confidences of any lands, tenements or
hereditaments shall be manifested and proved by some writing
signed by the party who is by law enabled to declare such
trust, or by his last will in writing, or else they shall be utterly
void and of no effect.'
§ 8. ' Provided always that where any conveyance shall be
made of any lands or tenements by which a trust or confidence
shall or may arise or result by the implication or construction
of law, or be transferred or extinguished by an act or opera-
tion of law, then, and in every such case, such trust or
■* The trusts could apparently he declared by signs only. Cf. from the recitals
of the Statute of Uses (3) '...the hereditaments of this realm have been conveyed
...by fraudulent feoffments... craftily made to secret uses intents and trusts;
(4) and also by wills and testaments sometime made by nude parolx and words,
sometime by signs and tokens, and sometime by writing, and for the most part
made by such persons as be visited with sickness, in their extreme agonies and
pains....'
58 Lectures on Equity Lect.
confidence shall be of the like force and effect as the same
would have been if this statute had not been made, anything
hereinbefore contained to the contrary notwithstanding."
I will read also the next section in order that you may
contrast it : it will come before us at a later time.
§ 9. ' All grants and assignments of any trust or con-
fidence shall likewise be in writing signed by the party
granting or assigning the same, or by such last will or devise,
or else shall be utterly void and of none effect.'
1. The 7th section speaks of declarations and creations of
trusts or confidences, the 9th section of grants and assign-
ments of trusts or confidences.
2. The 7th section relates only to trusts and confidences
of lands, tenements and hereditaments. The 9th relates to all
grants and assignments of any trust or confidence, whether of
hereditaments, of moveable goods, or of choses in action or of
what you will.
At this point I may remark that the words 'lands, tene-
ments and hereditaments ' in the 7th section include copy-
holds and chattels real, but they have been held not to include
a debt due upon mortgage of real estate^
3. The 9th section requires that every grant or assignment
of a trust shall be in writing, signed by the party granting or
assigning the same. The 7th section merely requires that the
declaration of trust shall be Tiianifested and proved by some
writing signed by the party who is by law enabled to declare
such a trust. Your attention will have been drawn to a
similar point when you were studying the two yet more famous
sections of the statute, the 4th and the 17th, which are impor-
tant in our law of contract. To satisfy the 7th section the
writing may be posterior to the creation of the trust. * The
statute will be satisfied if the trust can be manifested and
proved by any subsequent acknowledgment by the trustee, as
by an express declaration by him or by a memorandum to
that effect, or by a letter under his hand, or by a recital in a
deed executed by him ; and the trust, however late the proof,
operates retrospectively from the time of its creation' (Lewin)^.
^ Beiil'oiv V. To7viistiid, i M. and K. jo6.
2 uth edition, p. 56.
V Trusts and the Statute of Frauds 59
Thus if I convey land to you and it is agreed between us that
you are to hold it upon trust for X, but nothing about this be
said in the conveyance or in any other writing, the trust
for X can not be enforced ; but should you write and sign
a letter admitting that the conveyance was made to you
in trust for X, then not only will the trust be enforceable
against you for the future, but )ou will be treated as having
been all along a trustee for X, and will be accountable as
such.
4. You will observe that neither section requires a deed.
5. You will observe that unlike the two famous sections,
the 4th and the 17th, neither of these sections (7th and 9th)
says anything about signature by an agent. The one requires
the signature of the party who is by law enabled to declare
the trust, the other requires the signature of the party granting
or assigning the trust.
6. You will observe that a proviso to the 7th section (this
proviso constitutes the 8th section) protects the doctrine of
trusts which arise or result by the implication or construction
of law. The requirement of writing is not to destroy this
doctrine. On the other hand the 9th section requires signed
writing for the grant or assignment of a trust, no matter
whether that trust has arisen by declaration or by the con-
struction of law.
7. Observe that Courts of Equity have dealt boldly with
section 7, saying that the Statute of Frauds is not to be
made a cover or cloak for fraud. Take this declaration of
the Court of Appeal. ' It is further established by a series of
cases, the propriety of which cannot now be questioned, that
the Statute of Frauds does not prevent the proof of a fraud ;
and that it is a fraud of a person to whom land is conveyed as
a trustee, and who knows it was so conveyed, to deny the
trust and "claim the land himself.' Rochefoucauld v. Boustcad,
1897, I Ch. 196. This doctrine deprives the statute of a
good deal of its efficacy. In time past Courts of Equity in
construing statutes were apt to read into every statute a
proviso to the effect that the law was not to serve as a shield
for fraudulent people.
This, I think, is the sum and substance of our law relating
6o Lectures on Equity Lect.
to the formalities necessary for the creation of trusts by act
infer vivos. A trust may also be declared and transferred by
will. You will have observed that the 7th and 9th sections of
the Statute of Frauds admit and declare this rule. As to the
formalities necessary for the execution of a valid will we have
now to go to the great Wills Act of 1837, i Vic. c. 26. I
need say nothing about these formalities save this, that you
can not create a trust by any instrument of a testamentary
character that is not a valid will— I use the term will so
as to include codicil. This may seem a little more obvious
to you than really it is, so I will dwell on it for a moment.
Suppose that by my will I devise land to T and his heirs
'upon trust,' but do not specify the particular trust. Then by
a paper signed only by one witness I declare my intention to
be that T shall hoi 1 in trust for X. When I die the beneficial
interest in the land that I have devised to T will descend to
my heir at law, or if my will contains a residuary devise it
will go to my residuary devisee. But you may say ' Granted
that paper attested by but one witness is not a valid will or
codicil ; is it not a valid declaration of trust, for the 7th
section of the Statute of Frauds does not require two witnesses ;
it does not require any witness?' Or put another case. By
my will I bequeath a horse to T ' upon trust,' but do not
specify the trust, and by word of mouth I declare that T is to
be a trustee for X. Is there not here a valid declaration of
trust, for the Statute of Frauds does not even require writing
where a trust is declared of a personal chattel .'' The answer in
both cases is that I am trying to make what in truth is a
testamentary disposition without observing those formalities
which the law requires in the case of all testamentary disposi-
1 tions
If, therefore, I make a devise to T saying nothing of any
trust and I then make a declaration that T is to hold in trust
for X, but this declaration is not made with the formalities
required by the Wills Act, and is not communicated to and
assented to by T during my lifetime ; then on my death T
will take the land beneficially, unburdened by any trust, li
on the other hand I devise to T ' upon trust,' but do not
mention what trust, and then by some paper which is not
V Informal test amen fary declarations 6i
a valid will declare that the trust is for X. then on my death
my heir at law, or my residuary devisee, if I have one, will be
equitably entitled to the land that I devised to T. X can not
establish the trust, and T can not retain the beneficial interest
for himself, for I have made clear on the face of my will that
I did not intend him to have it. The former of these doctrines,
however, undergoes a qualification if during my lifetime I
communicate to T my intention that he should hold merely
as 'a trustee for X and T assents to hold in that character.
A man, it is said, must not profit by his own fraud, and Courts
of Equity have made even the provisions of the Wills Act
yield to this maxim. Mr Lewin lays down the rule thus, ' If
a testator devise real estate or bequeath personal estate to A,
the beneficial owner upon the face of the will, but upon the
understanding between the testator and A, that the devisee or
legatee will, as to a part or even the entirety of the beneficial
interest, hold upon any trust which is lawful in itself in favour
of B, the Court, at the instance of B, will affect the conscience
of A, and decree him to execute the testator's intention^'
Read /// re Boyes (1884), 26 Ch. D. 531 (Kay J.). A
makes a will leaving all to his solicitor B, whom he appoints
sole executor. It is agreed between them that B shall dispose
of the property as A shall direct. No direction comes to B
during A's life. After A's death two letters to B are found
among his papers, telling B to hold for X — B must hold in '
trust for A's next of kin. A could not give himself the \
power to make an informal will. If the direction had been i
communicated in A's lifetime, and B had assented to it, there
would have been a trust for X.
hi re Stead, 1900, i Ch. 237, is an interesting case — a gift
to A and B jointly. A is told, but B is not told, of the trust.
A is bound as to an undivided moiety. Is B bound } Yes,
if the trust was told to A before the making of the will ; no,
if it was only told to A afterwards. This distinction rests
on no sound reason, as, indeed, Farwell J. points out. You
must accept it as the result of two lines of cases — the one set
asserting a rule that no person can claim an interest under a
fraud committed by another, whilst the other set was decided
^ nth edition, p. 63.
62 Lectures on Equity Lect.
in the opposite way lest otherwise one beneficiary might be
enabled to deprive the rest of their benefits by setting up
some secret trust communicated to himself alone.
In the quotation just made from Levvin you may have
noticed the words 'upon any trust which is lawful in itself
What Mr Lewin is thinking of is a doctrine which has come
into play chiefly in relation to certain trusts which are stig-
matized as superstitious, and therefore unlawful. I devise or
bequeath property to T as though T were to be the beneficial
owner, but T has agreed with me that he will spend the pro-
perty in paying for masses for my soul. My heir at law, or my
residuary devisee, or my next of kin, as the case may be, can
go to the Court, and in an action against T can oblige him to
say whether or no there was this secret trust, and if the trust
be proved against him, then it being plain on the one hand
that he was not intended to enjoy the property beneficially,
and on the other hand that the trust is one which is unlawful,
he will have to hold it for my heir, my residuary devisee or
legatee, or my next of kin, as the case may be. So also until
1891 ' one could not leave to a charity realty, or personalty that,
as the phrase went, ' savoured of the realty.' If then I devised
all my freeholds to T, and there was an arrangement between
us that T should convey the land to a charity, my heir at law
if he could prove that secret and unlawful trust could compel
T to convey to him. The practical moral of this is that if
you wish to have masses said for your soul at the cost of
your estate, leave your estate to some one who is of your way
of thinking, but be extremely careful not to tell him what
you want done. If he is a good friend of yours very likely
the masses will be duly said — there is nothing unlawful in
saying masses, and nothing unlawful in paying for masses —
but do not constitute a secret trust unless you are very sure
of your kinsfolks
I have been led into this digression by a wish to show you
how the law concerning the creation of trusts is affected by
the law of wills.
^ Mortmain and Chaiitaljle Uses Act, 1891.
^ As an illustration of the limits of the doctrine of secret trusts see In re Pitt-
Rivers, 1902, 1 Ch. 403.
V Resulting Uses 63
So much as to the formalities necessary when a trust is
declared. You will notice that there is little to be said about
this matter. Equity has been characterized by a certain dis-
regard for forms. Then as to the necessary words — we can
only say that subject to certain rules of construction any words
will do which adequately express the intention of creating a
trust.
In the first place, however, we must of course pay heed to
the Statute of Uses — we must be sure that we have got a
trustee and not that mere ' conduit pipe,' as he is often called,
a grantee or a devisee to uses. For example, we must give
heed to the doctrine of resulting uses, and distinguish it from
the analogous doctrine of resulting trusts. If for valuable
consideration I convey unto A and his heirs and say nothing
about any use or trust, the legal fee simple is vested in A, and
the beneficial estate in fee simple also is vested in him ; there
is neither resulting use nor resulting trust. You know that in
practice in the sale of land it is usual for the vendor to convey
unto and to the use of the purchaser and his heirs, or unto the
purchaser and his heirs to the use of the purchaser and his heirs.
This I say is usual, but the words about the use have really no
legal effect; the Statute of Uses never comes into play. That
statute only comes into play where one person is seised to the
use of another person, and in this case there is no talk of any
person other than the purchaser. The deed of conveyance
takes effect under that section of the Real Property Act
of 1845 (8 and 9 Vic. c. 106, sec. 2) which says that corporeal
tenements and hereditaments shall, as regards the convey-
ance of the immediate freehold thereof, be deemed to lie
in grant as well as in livery\ The only object, if any, that
is secured by the insertion of these words about uses in an
ordinary purchase deed is this — Were they not there some
future purchaser might possibly give trouble by saying 'I
require proof that a valuable consideration was given.' As
it is, the words being there, you can reply ' Even if there was
no valuable consideration there is no resulting use, because
a use is expressly declared for the purchaser.' In a voluntary
conveyance on the other hand a declaration of a use, trust or
^ Sec e.^. Savill Bros. Ltd. v. Bet hell, C. A. 1902, 3 Ch. 523.
64 Lectures on Equity Lf.ct.
confidence is essential ; otherwise the conveyance will be in-
operative, for the use will result and with the use the legal
estate. Such at all events is the case if the grantee is a
stranger to the grantor, but I understand that the old doctrine
that near relationship is sufficient to raise a use has never
been abolished. Then of course if you have a grant unto A
and his heirs, to the use of, or in trust for, B and his heirs, to
the use of C and his heirs, you will have to remember that A
gets nothing and B gets the legal estate. And there are divers
other rules which you will have to remember in order that you
may distinguish between those uses which are 'executed by
the statute' and those trusts which equity enforces.
You may have heard of the controversy as to whether the
Statute of Uses applies to wills. The controversy vi^as possible
because tiie statutes which give power to devise freehold were
posterior in time to the Statute of Uses. I think that accord-
ing to our modern law the controversy is a vain one — for
either the Statute of Uses does apply to wills or else the
courts in construing wills of real estate have adopted as a rule
of construction the rule laid down by the statute. If I simply
devise freehold land unto T and his heirs in trust for X and
his heirs, or unto T and his heirs in trust for X for life with
remainder to Y and his heirs, T takes nothing ; the legal
estate passes to X, or to X with remainder to Y, as the case
may be. But in construing wills the whole instrument may
be considered and it may be plain that T the devisee upon
trust is to have the legal estate although the land was devised
merely unto him, and was not devised 'to his use.' Of course
if I devise unto T, upon trust to sell, T gets the legal estate ;
the trust here is not one of those simple uses, trusts or con-
fidences for another that the Statute of Henry VIII had in
view. Even in less obvious cases the Court will hold that T
the devisee gets the legal estate if when the whole will is read
it appears that he is intended to have it. (See the case of
Van Grnttcn v. Foxivcll, 1897, A.C. 658, which we have
previously discussed.) However it is a sound rule of draughts-
manship that if by will you wish to vest the legal estate in
trustees you had better make this plain by devising not merely
unto them but unto them and to their use.
V 'Executed' and 'Executory Trusts 65
It is one of the most important and most unyielding rules
of construction that technical words will be understood to have
their technical meaning. But in this context it is common to
introduce a contrast between two classes of trusts. Trusts it
is said are either ' executed ' or * executory.' One may regret
that no better words have been found to express this dis-
tinction, for ' executed ' and ' executory ' have, as you know,
hard enough work to do in connexion with the law of
consideration in contract. The distinction becomes important
in the construction of wills. A testator may either himself
make a settlement or may sketch out a settlement that is to
be made after his death. Well, the rule comes to this that in
the latter case you will have a little more latitude in consider-
ing what the testator really meant than you will have in the
former. Often enough the cause of this distinction has been
the rule in Shelley's Case. That rule applies to wills as well
as to acts, inter vivos; it applies to equitable as well as to legal
estates. If I devise unto and to the use of T and his heirs in
trust for X for life with remainder to the heirs of the body of
X, here X has an equitable estate tail. But if I leave money
to trustees, direct them to purchase land and settle it upon X
for life with remainder to the heirs of his body, then in the
case of this executory trust there may be more question as to
whether the Shelley rule is to be brought into play. If by
some other phrase I show that my real intention is that X
shall have but a life estate with remainder to his first and
other sons successively in tail — if for example I say that X is
to hold without impeachment of waste — the Court may be able
to say : ' The testator has not made a settlement, he has only
sketched out a settlement ; we can see what he really meant,
and the sketch being but a sketch, we will not catch at
technical phrases and defeat what we believe to be his inten-
tion.' If this be so with executory trusts in wills it is still
more so with executory trusts in marriage articles. John and
Jane are going to marry: they cannot wait tor the preparation
of an elaborate settlement ; they execute a brief agreement
and may be they say that all John's freehold land shall
hereafter be settled on John for life and then, subject to a
jointure of ^500 a year for Jane, on the heirs of the body of
M. E. 5
66 Lectures on Equity Lect.
John. Here a Court will be somewhat ready to say that the
rule in Shelley's Case is not to be applied to this brief and
executory instrument. It is pretty evident that if the land be
settled in just those terms which were written down in the
agreement the intention of the parties will be defeated. Here
the Court has this to go upon — the object of the agreement
must be that of providing for the children of the marriage,
but if the husband is to have an estate tail this will be no
provision for the children ; the husband could bar the estate
tail to-morrow, sell the land and squander the proceeds. No,
we must suppose that in this merely executory agreement
' heirs of the body ' means ' first and other sons.' Thus in
addition to the rules of construction for executed trusts we
have another body of rules of construction for executory trusts,
or rather two more sets of rules, one for executory trusts in
wills, the other for executory trusts in marriage articles. In
re Johnston (1884), 26 Ch. D. 538.
Even in deeds where the trust is of the executed kind, the
Court takes a greater liberty of looking at the whole instru-
ment where merely equitable interests are being dealt with
than where the interests are legal ; e.g. an equitable fee has
been held to be given by deed without words of limitation or
the words 'in fee simple.' In re Tringham, 1904, 2 Ch. 487.
In re Oliver, 1905, i Ch. 191. If you would know more of
this matter then I will send you to Lewin chap, viii, but we
must not delay long over mere rules of construction.
Technical words are to be technically construed, but a
trust can be created by the most untechnical of words. This
is seen very clearly in the treatment of wills. In the past the
Court of Chancery seems to have been eager to catch at any
phrase which could possibly be twisted into an expression of
trust. A testator leaves property to T and expresses a wish,
a hope, that T will use it in a certain way, or for a certain
purpose. If that way, that purpose, be at all definite, the
Court will see in this a declaration of trust, to use a phrase
often used, a precatory trust. Here are some of the terms
which have been held sufficient : ' desire,' ' will,' ' request,' ' en-
treat,' 'beseech,' 'recommend,' 'hope,' 'do not doubt,' 'am well
assured/ 'well know,' 'confide,' 'of course he will,' and so forth.
V Precatory Trtists 67
Often the testator has been leaving his property to his wife,
and then he has said 'I hope, I believe that she will maintain
our children' — or 'of course she will provide for our children' —
here the Court has been very ready, even eager to see a trust.
Just of late years there has been a marked reaction against the
more extreme applications of this doctrine of precatory trusts.
Still it is highly imprudent for a testator to express in his will
any sort of wish, or hope, or expectation unless he desires that
this should become a binding trust. If ever you have to put
into a will any such expression of wish, hope, or expectation
and the testator does not intend to create an enforceable duty,
you will do well to say in the strongest terms, ' But this is not
to be deemed a trust, it is not to be deemed a duty enforce-
able by the courts.'
hi re Williams, 1 897, 2 Ch. 1 2, is a good illustration of the
modern limit, as Rigby L.J. differs from Lindley and Smith
L.J.J. The testator gives the residue of his estate to his wife,
her heirs, executors, administrators and assigns absolutely ' in
the fullest trust and confidence that she will carry out my
wishes in the following particulars.' She was to keep up a
policy on her own life (which policy was her own property)
and by her will she was to leave the moneys payable under
that policy and also the moneys payable under a policy on the
testator's life (which was his property) to his daughter Lucy,
Lindley and Smith L.J.J, held that the wife took the residue
unfettered by any condition or trust. This case is the high-
water mark of the reactionary doctrine. But in the case of
Coniiskey v. Bowring-Hanbury, 1905, A.C. 84, the House of
Lords held that a precatory trust was established, under a will
not easy to distinguish from that in the case that I have last
cited.
Of course even before the modern reaction the courts have
sometimes had to say ' No, this really is too vague, we can't
enforce it.' For example, a testator gives property to his wife
and desires her 'to use it for herself and her children and to
remember the Church of God and the poor ' — that is too vague.
Still I think you would be surprised at the looseness of some
of the phrases in which the Court of Chancery was able to
discover a definite and enforceable trust.
5— »
68 Lectures on Equity Lect.
I now come to a rule of very great importance ; it draws a
line between the trust that is created for valuable consideration
and the voluntary trust. Mr Lewin approaches the subject
thus : ' Where there is a valuable consideration and a trust is
intended to be created, formalities are of minor importance,
since if the transaction cannot take place by way of "trust
executed," it can be enforced by a Court of Equity as a con-
tracts' Let us see what this means. I agree with you that
if you marry my daughter I will convey Blackacre Farm to
trustees, named or unnamed, upon certain trusts for the benefit
of you, her, and the issue of the marriage. This agreement is
put into writing, that writing I sign. You marry my daughter.
Now we can put the transaction in one of two ways and it
matters not very much in which way we put it. (i) Here is a
contract and one of which a Court of Equity will enforce the
specific performance. (2) Here is already a declaration of
trust : — true that the legal estate has not yet been conveyed to
those persons who are to be in the end the trustees of it ; but
there is a fundamental rule of equity that a trust shall never fail
for want of a trustee — I myself am already a trustee for you,
your wife, the issue of your marriage. I say it does not matter
very much in which way we state the case, for it is another
rule of equity that the vendor of land so soon as the agree-
ment for sale is signed can for very many purposes be treated
as a trustee for the purchaser. In this case now before us you,
your wife and the children of the marriage are in very much
the same position as that in which you would be had I already
conveyed Blackacre to the trustees and made a formal settle-
ment. You can enforce the trusts against me, if I die you can
enforce the trusts against my representatives, if I dishonestly
give Blackacre to X for no valuable consideration, you can
enforce the trusts against X, if I dishonestly sell and convey
Blackacre to Y, you can enforce the trusts against Y, unless
indeed he purchased without notice express or implied of
those trusts. Well, if the estate had been duly conveyed to
trustees you would be able to do no more. The chance that
the legal estate may come to the hands of a bona fide purchaser
for value without notice of your equitable rights is — as we
^ nth edition, p. 68.
V Equity will not assist Vohmteers 69
shall observe at length hereafter — a chance which every cestui
que trust must run. I do not say that you ought not to
require the execution of a formal settlement. There are several
reasons why you ought to do so, for so long as the legal estate
is in me and there is no formal conveyance to trustees it is
somewhat easy for me to commit a fraud and pass the legal
estate to a bond fide purchaser who having no notice of your
equitable rights will laugh at them. Still here there is a trust
already created, I am your trustee.
Far otherwise would it be were there no valuable considera-
tion for my promise. In writing I promise to convey certain
land to trustees upon trust for you, because you have been a
good friend to me, or because you have already married my
daughter, though before the marriage I made no promise to
do anything for you. Now here of course there is not any
enforceable contract, we have but a voluntary promise which
is not enforceable either at law or in equity. Let us go one
step further, let us suppose that my promise is made by deed,
by covenant. Here is a promise enforceable at law by an
action for damages, for promises under seal are valid though
made without valuable consideration. So if I break my
promise you may get damages. But you will not get specific
performance, for it is a rule of equity that specific performance
of a voluntary promise will not be enforced even though that
promise be under seal. You have a bare, personal, contractual
right. Equity will do absolutely nothing for you. I have not
declared a trust for you, I have merely promised to convey to
a trustee for you. You say 'True, but still you have promised'
— I reply 'Yes, but the promise, even though it be under seal,
is not one which equity will enforce.'
Thus where there is a valuable consideration it is often
unnecessary for us to distinguish the promise to constitute a
trust from the constitution of a trust. But otherwise is it if
the transaction be voluntary, for then this distinction is vital.
In the classical case of Ellison v. Ellison (6 Ves. 656, and
White and Tudor L.C. vol. il. 835) Lord Eldon laid down the
rule thus: ' I take the distinction to be, that, if you want the
assistance of the court to constitute you cestui que trust and
the instrument is voluntary, you shall not have the assistance
yo Lectures on Equity Lect. V
for the purpose of constituting you cestui que trust, — as upon a
covenant to transfer stock, &c., if it rests in covenant and is
purely voluntary, this court will not execute that voluntary
covenant. But if the party has completely transferred stock, &c.,
though it is voluntary, yet the legal conveyance being effectu-
ally made the equitable interest will be enforced by this court'
As regards voluntary transactions therefore we have to
distinguish clearly between the promise to constitute a trust,
which is unenforceable, and the constitution of a trust. And
this as we shall see more fully next time is not always a very
easy feat
LECTURE VI.
TRUSTS IMPLIED, RESULTING AND CONSTRUCTIVE.
I HAVE to-day to add a little to what has been already
said about the constitution of voluntary trusts. We have this
rule, a voluntary trust if perfectly created is valid and enforce-
able. Of course, as you know, there are statutes which make
important exceptions to this rule, statutes which invalidate
certain voluntary transactions. In particular there are the
two statutes of Elizabeth — the statute of the 13th year in
favour of creditors, the statute of the 27th year in favour of
purchasers^ — also there is the bankruptcy law to be considered.
But these invalidating statutes apart, the voluntary trust, if
perfectly created, is valid. On the other hand a promise to
create a voluntary trust can not be enforced. As Lord Eldon
said — if you are a volunteer you shall not have the help of a
Court of Equity to make you a cestui que trust.
What then is meant by the perfect creation of a voluntary
trust ? Well, the settlor must intend to do one of two things.
Either he must intend that some other person shall hold the
property in question upon certain trusts, or he must intend to
make himself a trustee, to retain the property in question but
to hold it henceforth upon the designated trusts.
We will look first at the former alternative. The settlor
does not mean to become a trustee, he means that some other
person shall be the trustee. Here the question becomes this
— Has he done all that it was in his power to do to transfer
the property to that trustee and declare a trust of it? About
this matter we have however some subordinate rules.
^ But see the Voluntary Convejances Act, 1893, 56 and 57 Vict. c. ai.
72 Lectures on Equity Lect.
I. If the subject-matter of the intended trust be some
legal estate or legal rights vested in the settlor, and that
estate or those rights be transferable at law, then the settlor
must do all that the law requires in order that he may transfer
that estate or those rights to the trustee. If for example the
settlor be legal tenant in fee simple he must execute a deed
transferring his legal estate to the trustee. If he be the legal
owner of moveable chattels such as plate or books he must
pass the property in them to the trustee, and this he can do
by deed or by delivery. If he wishes to settle Government
stock now standing in his name, this must be transferred into
the name of the trustee. If in any way he fails to perfect the
legal transfer, equity will give no help whatever. Thus for
example suppose him to be the tenant of a copyhold whose
name appears on the rolls of the manor, a mere covenant to
surrender it to the trustee is no complete transfer; there must
be a surrender and admittance. So long as the matter rests
in covenant equity will give no help. The covenant, being a
covenant, is valid in a court of law, the trustee may be able to
get damages out of the settlor if he will not surrender the
copyhold, and if the trustee gets any damages he will have to
hold the money upon the trusts — but equity will give no help
— it will not compel the specific performance of a voluntary
promise even though it be under seal.
2. Until lately it might frequently happen that the rights
which the intending settlor proposed to settle were rights of a
legal kind, but rights incapable of legal transfer. Some one
owed him a debt, either a bond debt or a simple contract debt,
and he wished that the benefit of this debt should be held in
trust for his wife and children. But the debt being a chose in
action could not, as you know, be assigned so as to give the
assignee a legal right to sue for it. Here if equity had said —
You must execute a legal transfer of your rights — it would
have required an impossibility and said in eff"ect — You cannot
make a valid voluntary settlement of such rights as these
except by constituting yourself a trustee. After some hesita-
tion it conceded that if the settlor made a written assignment
of the chose in action to the trustee — this, though inoperative
at law, was a sufficient transfer within the meaning of the rule
VI Voluntary Trust must be completed 73
that we are now considering^ However under section 25
sub-sec. 6 of the Judicature Act of 1873 this class of cases has
perhaps disappeared, for the person who is entitled to a legal
chose in action can now make a legal assignment of it. Then
does this case now fall into our first class? We have a man with
legal rights capable of legal transfer. Very well, if he wishes
to make a valid voluntary settlement, without making himself
a trustee, he must, it may be said, execute a legal transfer of
his rights to the trustee in the form prescribed by the Judica-
ture Act. But this is at least dubious. In the case of In re
Griffin, 1899, i Ch. 408, Byrne J. seems to have thought that
the completed formalities under the Judicature Act were not
necessary to validate the voluntary assignment of a chose in
action.
3. The subject-matter of the proposed settlement may
itself be purely equitable. For example T holds land in trust
for S, or he holds stock upon trust for S ; S wants to settle
his estate or interest. Well, here he has no legal estate to
transfer. One mode of effecting his purpose will be to direct
the old trustee to hold the land or the stock upon a new trust,
another mode will be to execute an assignment of his equitable
right to some new trustee T' upon the new trust. Here, as
there is no legal estate in the case, no deed is necessary, an
assignment in writing to the new trustee will be enough.
4. We have said that a man intending to make a voluntary
settlement may do so by making himself a trustee. If he
plainly declares that he holds himself to be a trustee for
certain purposes of certain rights legal, or it may be merely
equitable, which are vested in him — this is enough. If the
rights in question are rights in lands or hereditaments then —
because of the Statute of Frauds — the declaration must be
proved by signed writing. In other cases word of mouth will
be enough. But here we come upon a rule of some importance
— An imperfect gift will not be construed as a declaration of
trust.
I have a son called Thomas. I write a letter to him saying
* I give you my Blackacre estate, my leasehold house in the
^ See e.g. Fortescue v. Barnett, 3 M. and K. 36, Kekewich v. Matming,
I De G. M. and G. 187.
74 Lectures on Equity Lect
High Street, the sum of ;i^iooo Consols standing in my name,
the wine in my cellar.' This is ineffectual — I have given
nothing — a letter will not convey freehold or leasehold land,
it will not transfer Government stock, it will not pass the
ownership in goods. Even if, instead of writing a letter, I
had executed a deed of covenant — saying not I do convey
Blackacre, I do assign the leasehold house and the wine, but
I covenant to convey and assign — even this would not have
been a perfect gift. It would be an imperfect gift, and being
an imperfect gift the Court will not regard it as a declaration
of trust. I have made quite clear that I do not intend to
make myself a trustee, I meant to give. The two intentions
are very different — the giver means to get rid of his rights,
the man who is intending to make himself a trustee intends
to retain his rights but to come under an onerous obligation.
The latter intention is far rarer than the former. Men often
mean to give things to their kinsfolk, they do not often mean
to constitute themselves trustees. An imperfect gift is no
declaration of trust. This is well illustrated by the cases of
Richards v. Delbridge, L.R. i8 Eq. ii, and Heartley v.
Nicholson, L.R. 19 Eq. 233. It may be illustrated by cases in
which the rule seemed to act with great hardship. A husband
might often wish to make a present to his wife of some chattel,
for example a piano. But before the Married Women's Pro-
perty Act of 1882, there was a great difficulty in his way. He
might do one of two things: he might give the piano to a
trustee upon trust for his wife's separate use, or he might declare
himself to be a trustee of it for his wife's separate use. But one
thing he could not do. He could not transfer the legal owner-
ship of the chattel to his wife. Suppose that he said * I give
you this piano, or this brooch,' and let us say he delivered the
things into his wife's keeping, and she wore the brooch. Well,
some judges, impressed by the hardship of the case, were
willing to say that this imperfect gift — a perfect gift being
impossible — might be regarded as a declaration of trust ; the
husband must be taken to have made himself a trustee for his
wife's separate use {Baddeley v. Baddeley, 9 Ch. Div. 1 1 3) — but I
believe that this charitable doctrine was of doubtful authority
(see Breton v. Woollven, ij Ch. Div. 416). However the
VI Imperfect Gift no Declaration of Trust 75
Married Women's Property Act of 1882 removed this particular
difficulty. Still the rule that I have been endeavouring to
explain is an important one. Imperfect gifts are not to be
construed as declarations of trust. Once more let me remind
you that where there is valuable consideration all is otherwise,
because the mere promise for value to create a trust is (except
where the Statute of Frauds stands in the way) a promise
that can be specifically enforced, and thus it is already, in
effect, the creation of a trust. Before passing on, notice the
curious doctrine that the issue of a marriage are within the
marriage consideration — are not volunteers. This may be
important upon the question of enforcing an imperfect gift.
Take an agreement in consideration of marriage to convey
land to be held in trust for the children of the marriage. No
conveyance is made. This agreement is enforceable at the
suit of a child. Contrast the position of a child of a previous
marriage. It is difficult to say that the child of the marriage
gives consideration ; and the case should be treated as excep-
tional ; a relic of the time when the doctrine of consideration
was not fully thought out. Notice also that a voluntary
assignment though by deed and absolute in terms is not en-
forceable either at law or in equity if the subject-matter is a
mere expectancy {spes snccessionis) — /;/ re EllenboroiigJi, 1903,
I Ch. 697 ; a case of voluntary assignment by deed of expec-
tations under the intestacy of relatives of the assignor. But
an agreement for value to assign such expectancies is valid
and enforceable in equity — see Tailby v. Official Receiver,
13 Appeal Cases 523, where Lord Macnaghten, at page 543,
points out that these, as well as future property and mere
possibilities, are assignable for value in equity.
I have said now what I have to say about the creation of
trusts by the act of a party. Lewin and other text writers
divide trusts thus created into express and implied. It is
difficult to draw the line, for since no formal words are
necessary for the creation of a trust and since whenever the
trust is created by the act of a party there almost of necessity
will be some words used — even if a deaf-mute created a trust
by ' talking on his fingers ' there would be words used — the
distinction comes to be one between clear and less clear
76 Lectures 07i Equity Lect.
words, and clearness is a matter of degree. Thus Lewin,
under the head of Implied Trusts,' treats of cases in which a
testator creates a trust by such words as ' I desire/ * I request,'
'I hope.' No firm line can be drawn — ' I desire' is nearly as
strong as 'I trust,' and ' I trust that he will do this' is almost
the same as ' Upon trust that he will do this.' I do not
therefore think that the distinction is an important one and
very often you will find that the term 'Express Trust' is
given to all trusts created by act of a party, i.e. by declaration
while 'Implied Trust' stands for what Lewin calls a trust
created by act of the law. When studying the law of contract
your attention will have been drawn to a very similar, a
parallel, ambiguity — sometimes 'Implied Contract' stands
for a true contract constituted rather by acts than by words,
sometimes it stands for a 'Contract implied by law/ or 'Quasi
Contract,' an obligation which is no true contract but which is
treated for many or most purposes as though it was a contract.
Turning now to trusts 'created by operation of law,' we might
similarly call them 'Quasi trusts'; but that term is not in use.
The distinction between Express Trusts and trusts that
are not Express, is thrust upon our notice by a rule of equity
which is often stated thus, namely that to an action based
upon the breach of an Express Trust the Statutes of Limita-
tion are no bar\ In this context it seems plain that the term
Express Trust is used in a different and a larger sense. The
cases touching this rule about the Statutes of Limitation (or
the protection given by Courts of Equity on the analogy of
the Statutes of Limitation) are however intricate and some of
them can hardly be reconciled with others. The main recent
authority is to be found in the judgments of the Court ot
Appeal in Soar v. As/nuell, 1893, 2 Q.B. 390. There a trust
* Compare sec. 25 sub-sec. 2 of the Judicature Act, 1873 : 'No claim of ar. q. t.
against his trustee for any property held on an express trust, or in respect of any
breach of such trust, shall be held to be barred by any Statute of Limitations.'
But the Trustee Act, 1888, section 8, did give to trustees and persons claiming
through them the benefits of the Statutes of Limitation except in certain cases.
The exceptions are principally where the claim is lor fraudulent breach of trust to
which the trustee was party or privy, or where it is to recover trust property or the
proceeds thereof still retained by the trustee or received and converted to bis own
use. See In re Timmis, 1902, i Ch. 176,
VI Express and Resulting Tnists 77
fund was committed by trustees to a solicitor for investment —
the solicitor was held not to be entitled to the protection of
the Statutes of Limitation — he was held to be an express
trustee or for this purpose in the position of an express trustee,
either for the trustees of the settlement or for the cestui que
trusts of the settlement. This is a case worth study if you
desire to see the difficulty of drawing the line between express
and other trustees. Bowen L.J. in that case said (at page 397)
' It has been established beyond doubt that a person occupying
a fiduciary relation who has property deposited with him on
the strength of such relation is to be dealt with as an express
and not merely a constructive trustee of such property.' And
covapdive North American Company v. Watkins, 1904, i Ch. 242,
where the defendant was held to be an ' express trustee,' for
this purpose, merely as being an agent with wide discretion to
whom the plaintiffs had remitted money to make purchases
of prairie lands. The judgment was affirmed in the Court of
Appeal, but on another view of the facts, — 1904, 2 Ch. 233.
Lewin carries his classification further. Trusts created by
operation of law are (i) Resulting, (2) Constructive. 'Resulting
trusts may be subdivided thus : («) Where a person being him-
self both legally and equitably entitled makes a conveyance,
devise or bequest of the legal estate and there is no ground for
the inference that he meant to dispose of the equitable interest.
{b) Where a purchaser of property takes a conveyance of the
legal estate in the name of a third person, but there is nothing
to indicate an intention of not appropriating to himself the
beneficial interests'
I. {a) Resulting trusts where there is a disposition of the
legal but not of the equitable interest. The general rule is
that wherever upon a conveyance, devise or bequest it appears
that the grantee, devisee or legatee was intended to take the
legal estate merely, the equitable interest, or so much thereof
as is left undisposed of, will result, if arising out of the settlor's
realty, to himself, or his heir, and if out of his personal estate
to himself or his personal representatives.
The intention of excluding the person invested with the
legal estate from the enjoyment of the property may be
^ nth edition, p. 158.
^8 Lectures on Equity Lect.
expressed or it may not be expressed. We will deal first
with cases in which it is expressed.
I convey land unto and to the use of A and his heirs upon
trust, but I declare no trust. Here the use does not result, for
a use is declared in favour of A and therefore A gets the legal
estate. But I have by the words 'upon trust' declared my
intention that A is not to enjoy the land for his own behoof —
on the other hand I have not saddled him with any particular
trust. Here a trust results for me. So by my will I give all my
realty unto and to the use of A and his heirs upon trust and all
my personalty unto A upon trust. A trust of the realty will
on my death arise for my heir at law, a trust of my personalty
for my next of kin. Such cases as these would of course be
very rare, for here I am supposing myself to do an extremely
foolish thing — to give upon trust, and declare no trust at all.
But it is an extremely common thing that I should give upon
trust and then declare trusts which do not exhaust all the
interest that I have given to my trustee. Thus by will I give
all my property to a trustee absolutely upon trust to pay the
rents and income to my wife for life and I omit to say what
is to be done after my wife's death — here, subject to my wife's
life interest, there will be a resulting trust for my heir or next
of kin. Still commoner is it that a testator gives his property
upon trust, declares trusts which in certain events would
exhaust the beneficial interest, but owing to some events
that he has not foreseen, premature deaths or the like, some
of these trusts fail — then the interest undisposed of will result.
So again it is not uncommon that a testator should in declaring
trusts contravene some rule of law, attempt to do what the
law will not suffer him to do, for example he tries to infringe
the rule against perpetuities. Here some of his trusts will
fail and the beneficial interest that is thus set free will result
- — will result to his heir or next of kin, or will pass to other
persons under a residuary devise or bequest. At all events a
person who has been declared a trustee of the whole interest
given him can not — unless indeed he happens himself to be
heir or next of kin to the testator — claim any beneficial
interest. Lewin lays down the rule thus : ' Where a trust
results to the settlor or his representatives not by presumption
VI Resulting Trusts 79
of law but by force of the written instrument, the trustee is
not at Hberty to defeat the resulting trust by the production
of extrinsic evidence by paroP.' I devise land unto and to the
use of A and his heirs upon certain trusts. These trusts fail
in my lifetime, A will not be allowed to produce witnesses to
show that I meant him to enjoy the land in case the trusts
failed. I have made A a trustee for somebody, and a trustee
he must be — if for no one else then for me or my representa-
tives.
We pass to the cases in which there is no expressed
declaration of intention that A, the grantee, devisee, legatee
shall be a trustee. Well, if by will I give to A and declare
no intention of making him a trustee, then he is not a trustee;
and if inter vivos and for valuable consideration I convey or
assign to A so as to vest the legal estate or interest in him
and declare no intention of making him a trustee, then a
trustee he is not. But otherwise is it of a voluntary convey-
ance or assignment inter vivos. For no valuable consideration
I convey land unto and to the use of A and his heirs. Here
the use does not result, for a use has been declared in A's
favour, so A gets the legal estate — but in analogy to the law
of resulting uses, the Court of Chancery has raised up a
doctrine of resulting trusts. If without value by act inter
vivos I pass the legal estate or legal rights to A and declare
no trust, the general presumption is that I do not intend to
benefit A and that A is to be a trustee for me. However this
is only a presumption in the proper sense of that term and it
may be rebutted by evidence of my intention. You see the
difference between this case and the one lately put — if I
convey to A ' upon trust ' and declare no trust, A can not
produce evidence that I did not mean to make him trustee —
but if there is no talk of trust at all in the instrument which
gives A his legal rights, then he may produce evidence to
show that I really intended him to enjoy the property.
Such is the general rule — upon a voluntary conveyance
inter vivos the presumption is that a trust results for the giver.
But then we have a sub-rule. Upon a voluntary conveyance
to a wife or child the presumption is the other way — the
presumption is, to use a common phrase, that there is an
' nth edition, p. 165.
8o Lectures on Equity Lfxt.
•advancement,' a real benefit intended for wife or child. You
will remember the parallel doctrine about resulting uses —
blood relationship it is said is consideration enough for a use.
In this case however we have merely a presumption. If I
convey land unto and to the use of my son, the presumption
is that I intend that he shall enjoy the land, and that no trust
results in my favour ; but this presumption may be rebutted.
I. {b) We must now take up the second class of resulting
trusts. The cases with which we have as yet been dealing are
cases in which there is a gift and the question is whether the
donee takes beneficially or merely as a trustee. We now turn
to cases in which a person buys something but the conveyance
of it is at his instance made not to him but to some one else —
cases of ' purchases in the name of third persons,' I buy a
fee simple estate, and I say to the vendor ' I want you to
convey it not to me but to X ' — so he conveys the land unto
and to the use of X.
Now here equity has drawn a distinction turning on the
relationship which exists between me and X. Briefly stated
the rule is this — that if X is my wife or my child the
presumption is that I intend a benefit for X and therefore
that there is no resulting trust for me, though this presumption
may be rebutted by parol evidence — on the other hand if X is
a stranger there is a presumption, though a rebuttable pre-
sumption, that I do not intend to benefit him but intend that
he shall hold as a trustee for me.
As regards strangers. Eyre C.B. stated the rule thus :
'The clear result of all the cases, without a single exception,
is that the trust of a legal estate whether freehold, copyhold,
or leasehold, whether taken in the names of the purchaser
and others jointly, or in the name of others without that of the
purchaser, whether in one name or several, whether jointly
or successive, results to the man who advances the purchase
money; and it goes on a strict analogy to the rule of the com-
mon law, that where a feoffment is made without consideration
the use results to the feoffor' {Dyer v. Dyer, 2 Cox. 93)^
A special application of this is that if A and B join in
^ It is well settled that the rule in Dyer v. Dyer applies also to personalty ; see
e.g. The Venture, 1908 P. 229, in the Court of Appeal, a case as to the purchase
of a yacht.
VI Presimiption of Advancement 8i
purchasing an estate and the estate is conveyed to them and
their heirs (which makes them in law joint tenants of it) then
there is no presumption against their being joint tenants in
equity as well as at law. It may be shown that they did not
intend to become joint tenants of the beneficial interest,- and
in particular if they be partners buying land for the business
of their firm, they are, in the absence of proof to the contrary,
accounted to be tenants in common — -jus accrescendi inter
mercatores locum non habet. Still in general if two men pay
the purchase money in equal shares there is no presumption
that they intend to be other than what the conveyance will
make them, namely joint tenants. But suppose that A finds
two-thirds and B one-third of the purchase money then,
although the conveyance makes them joint tenants in law, a
trust arises. A and B as joint tenants hold in trust for A and
B as tenants in common, as to two undivided thirds for A,
and as to the residue for B.
But the presumption is turned the other way round where
a purchase is made in the name of the purchaser's wife or
child. Here the presumption is in favour of a benefit, ' an
advancement' it is often called. This rule has been extended
to the case of an illegitimate child. Apparently it is some-
what wider, but it is usually spoken of as applying only to
wife and child'.
Whichever way the presumption may be it is rebuttable.
In the case of the stranger you may prove that a benefit to
him was intended; in the case of wife or child you may prove
that benefit was not intended, and this by oral evidence of the
purchaser's acts and declarations. This is so even in the case
of land and other hereditaments. The 7th section of the
Statute of Frauds which says that a declaration of trusts of
any hereditaments must be manifested and proved by signed
writing, is followed by the 8th which says that this is not to
apply to trusts which result by implication or construction of
law. So no written declaration by the purchaser is necessary
^ See In re Policy 6402 of the Scottish Life Assurance Co., 1902, i Ch. 282,
where a policy was taken out by a man on his own life but in the name of his
wife's sister. It was held, on his death, that her personal representatives were
trustees of the proceeds for his estate.
M. E. 6
82 Lectures on Equity Lect.
either to prove or to disprove the trusts with which we are
now dealinc^.
2. We turn now to Constructive trusts. Under this head
Mr Lewin treats of but one grand rule. It is this: that wher-
ever'a person clothed with a fiduciary character gains some
personal advantage by availing himself of his situation as a
trustee, he becomes a trustee of the advantage so gained.
The common illustration of this is the renewal by a trustee of
a lease that he holds on trust. A leaseholder, in the leading
case Keech v. Sandford, White and Tudor, Vol. il. 693 (7th edn.)
bequeathed a leasehold to a trustee for an infant. The lease
was running out. The trustee, doing his duty, asked that it
might be renewed ; this application was refused ; the landlord
did not want an infant tenant. The trustee then obtained a new
lease in his own name. It was held that this new lease must
be held upon trust for the infant. Lord King said ' I very
well see that if a trustee on the refusal to renew might have
a lease to himself, few trust estates would be renewed to a
cestui que use. This may seem hard that the trustee is the
only person of all mankind who might not have the lease ;
but it is very proper that the rule should be strictly pursued
and not in the least relaxed.' You see how far the doctrine
goes. The landlord was under no duty to renew this lease
and neither the trustee nor his cestui que trust had any right
to demand its renewal — but an old tenant has, if I may so
speak, a sort of goodwill with his landlord. If a trustee has
this advantage, even though the trust does not bind him to
use it, still if he does use it he must use it for his cestui que
trust and not for himself But though this is a good illustra-
tion of the rule you must not suppose that it relates only to
the renewal of leaseholds — far from it, if by reason of his
position that trustee acquires any advantage of a valuable
kind, he must hold it upon trust, he is constructively a trustee
of it.
The rule includes persons who are not trustees properly
so called, but all those who stand in what is called a fiduciary
position. My land agent, for instance, is not a trustee for me,
for he holds no rights, no property, upon trust for me ; but if
he takes advantage of his position as my agent to get some
VI Constructive Trusts 83
benefit from a third person then he is a trustee of that benefit
for me. I am not here speaking of cases of dishonesty which
may come within the cognizance even of a court of law and
give rise to an action of fraud — but it is a general principle of
equity that if an agent acquire any pecuniary advantage to
himself from third parties by means of his fiduciary character,
he is accountable to his employer as a trustee for the profit
that he has made. A good example of this is the following —
A was a landowner, B was his attorney and also his heir
presumptive ; A had made a will in favour of C ; A then
contracted to sell part of his land ; B advised that in order to
carry out this contract A should levy a fine of the whole of his
land ; the effect of levying a fine was to revoke A's will. It
was held that after A's death B, who as heir became entitled
at law to such part of A's land as had not been sold, must
hold it upon trust for C the devisee who had been dis-
appointed by the advice which B had given to A. 'You,' said
Lord Eldon, 'whether you meant fraud, whether you knew
that you were the heir at law of the testator or not, you
who have been wanting in what I conceive to be the duty
of an attorney, if it happens that you get an advantage by
that neglect, you shall not hold that advantage, but you
shall be a trustee of the property for the benefit of that person
who would have been entitled to it if you had known what as
an attorney you ought to have known, and not knowing it you
shall not take advantage of your own ignorance.' Bulkley v.
Wilford, 2 CI. and F. 102, at p. 177. And the scope of this
doctrine is very fully explained in the judgment of Romer L.J.
In re Biss, 1903, 2 Ch. 40^
But the doctrine of constructive trusts is really a very wide
one. It constantly operates in cases which we are apt to think
of as being otherwise explained. Put this case — T holds land
in fee simple upon trust for S in fee simple ; T in breach of
trust sells and conveys the land to X ; X at the time of the
sale knew of the trust. Now of course we hold that S's rights
as cestui que trust have not been destroyed by this sale and
conveyance — they are valid against X. But why? You may
perhaps say because S was in equity the owner, tenant in fee
^ See, for a recent instance, Griffith v. Owai, 1907, i Ch. 195.
6—2
84 Lectures on Equity Lect.
simple, of the land. That is one way of putting it, but as we
shall see hereafter a somewhat dangerous way, for it may
suggest that S's equitable rights are rights in rem, rights
which cannot possibly be destroyed by any dealing that
takes place between T and other persons. The more correct
and the safer way of stating the matter is that X having
bought and obtained a conveyance of the subject-matter ot
the trust knowing that the trust exists is made a trustee for
S. The result would have been the same if X though he did
not actually know of the trust for S ought, in the opinion of a
court of equity, to have known about it ; in this case also X
though he obtains the legal estate by conveyance from T
becomes a trustee for S. What is meant by this phrase that
X 'ought in the opinion of a court of equity to have known of
the trust' I shall endeavour to explain on another occasion.
Here I am only concerned to point out that though a trust
may have been created expressly and by way of contract, the
person, or one of the persons, against whom we see it
enforced has never consented to become a trustee. In the
cases that I have just put, X does not consent to become a
trustee for S ; on the contrary his hope has been that he will
be allowed to enjoy as beneficial owner the land that he has
purchased from T. If then he is made a trustee this is not
because he has agreed or consented to become one, but the
result is produced by some rule of equity which, will he, nill
he, makes him a trustee.
The rules of equity to which I refer might I think be
stated thus — Any one who comes to the legal estate or
legal ownership as the representative (heir, devisee, executor
or administrator) of a trustee, or who comes to it by virtue
of a voluntary gift made by a trustee, or who comes to it
with notice of the trust, or who comes to it in such circum-
stances that he ought to have had notice of the trust, is
a trustee. It is not usual in such a case to call the trust a
constructive one, still I want you to see that the man in
question gets bound by a trust without desiring to become a
trustee and even although he has every wish to escape such
an obligation. Put a simple case, T is trustee in fee simple
for A in fee simple; T dies; formerly (as I shall explain next
VI JVho is bound by a Trust ? 85
time) the legal estate would have descended to T's heir or
passed under his will to a devisee, now-a-days it will pass to
T's executor or administrator, his personal representative.
Now the personal representative, Q let us call him, is un-
doubtedly bound by the trust. Why so } Because he has
consented to accept it. No ; it is very possible that when he
proved T's will or took out letters of administration to T's
estate he knew absolutely nothing of the trust. Still he is
bound by it. Why is he bound ? Because he comes to it
as the trustee's representative.
Now it is usual and I think very proper to deal with the
rules about this matter in a context other than the present.
They come in answer to the question ' What are the nature of
the cestui que trusfs rights — against what persons or classes of
persons can these equitable rights be enforced ? ' Still I want
you to see that really they might also be treated from our
present point of view. If you are going to enforce the rights of
a cestui que trust against any person, X, you must be prepared
to show that in one way or another X has become a trustee for
that cestui que trust. That is why you cannot enforce the trust
against the bona fide purchaser for value who has no notice,
express or implied, of the trust, and who obtains the legal
estate. Still I must admit that these rules will come in better
when we are considering the nature of the rights of the cestui
que trust. They presuppose that somehow or another a trust
has been validly created, and they deal with the question who,
when such a trust has once been created, is bound by it. In
the present lecture and previous lectures we have been dis-
cussing the original nature o. the trust — How does a trust
first come into being .■* The further question ' Who is bound
by it?' still remains open.
LECTURE VII.
THE RIGHTS AND DUTIES OF TRUSTEES.
This morning we are to speak very briefly of the rights
and duties of a trustee.
I. {a) Of his rights. It is common to speak of the
trustee's rights as though they were ahvays legal rights, but o\
course this is not always the case. For example S is tenant
in fee simple, but his estate is subject to a mortgage ; on his
marriage he makes a settlement ; or conveys what he has to
convey unto and to the use of T and T'. Now S had no legal
estate — the legal estate is in the mortgagee — what therefore
he conveys to trustees cannot be the legal estate, but is a
merely equitable estate. So also it is common enough to find,
if I may so speak, one settlement behind another. Under the
marriage settlement of my father and mother I am entitled to
one-third share of certain stocks held by T and T', the trustees
of that settlement, but my interest is subject to the life
interests of my parents. I am going to marry, I assign what
I can assign to U and V upon trusts for myself, my wife and
children. Here, of course, the trustees of this second settle-
ment, this sub-settlement, do not at law become entitled to
my share of the trust fund. My rights are merely equitable
rights, and what I assign to U and V are equitable rights.
When my father and mother are both dead then it will be the
duty of my trustees, U and V, to make themselves the legal
owners of my third share ; they must call upon T and T' to pay
cash or transfer stock to them to the amount of one-third of
the fund ; but so long as either my father or my mother
lives the rights of my trustees must be merely equitable.
Therefore do not say that a trustee holds the legal estate of
Lect. VII Trustee could devise Trust Estate 87
land or the legal interest in personalty. This may or may not
be the case.
{b) Until lately the trustee's rights devolved upon his
death just as though they were beneficial rights. Thus, for
example, suppose that there was a sole trustee holding in fee
simple, holding either at law or merely in equity in fee simple.
If he died intestate the trust estate descended to his heir at
law — or, if the land was subject to a special custom, as e.g.
gavelkind or borough english, then to his customary heir. But
the trustee had full power to dispose of the estate by his will,
and since his heir might be an infant, and it was very undesir-
able that the trust estate should become vested in an infant, it
was generally right and proper that a trustee should devise the
freehold trust estates vested in him. It was usual therefore to
insert in every well drawn will some such clause as the follow-
ing : ' I devise all freehold estates vested in me upon trust or
by way of mortgage unto A and B and their heirs upon the
trusts and subject to the equities affecting the same respectively.'
It was also usual that a trustee should select as the devisees of
his trust estates the same persons as he appointed executors
of his will. If there was no express devise of trust estates as
such then a difficult question might arise. A testator would
devise ' all my real estate to A,' or, having first made some
specific devises of Blackacre, Whiteacre and so forth, he would
devise ' all the residue of my real estate to A.' Did this
devise include estates vested in him as a trustee? The rule
was that a general devise does carry trust estates ; but this
rule gave way somewhat easily to any indication of a contrary
intention. ' My real estate ' includes real estate vested in me
as a trustee — such was the general rule ; but then if I went on
to direct that all my real estate should be sold, this would
manifest a contrary intention, for a sale of the trust estates
would very likely be a breach of trust. Again, if I devised all
my real estate to A for life with remainder to B, this would
serve to show that I did not intend to include trust estates in
my large words, for it would be highly inconvenient that a
trust estate should be limited to one for life with remainder to
another. Often, however, on ill drawn wills there was a
difficult question. But we must pass this matter by very
88 Lectures on Equity Lect.
lightly, for owing to recent alterations in the law it is fast
becoming obsolete. Before I speak of those alterations I must
say that as to personal estate (including chattels real) held
upon trust the case was simpler. If the trustee appointed an
executor, then the personalty which he held upon trust like
his other personalty passed to his executor ; if there was no
executor it passed to his administrator.
We come to the modern changes in the law. Passing by
a section in the Vendor and Purchaser Act of 1874, which was
repealed in the next year, we have section 48 of the Land
Transfer Act of 1875, which said that on the death of a bare
trustee intestate seised in any hereditament in fee simple, such
hereditament should vest like a chattel real in his legal
personal representative — i.e. his executor or administrator.
This section, you will remark, applied only where the trustee
died intestate ; it did not in any way affect the law as to
devises of trust estates ; and it applied only to a bare trustee.
This term, ' bare trustee,' gave rise to difficulties. Some
judges interpreted it to mean a trustee who has no beneficial
interest, others a trustee who has no active duty to perform,
no duty save that of just holding the land in trust for some
other person. I believe that the second of these was the better
interpretation. But we may pass by this controversy, for the
section is now repealed, and as regards a trustee who dies after
the 31st of December, 1881, we have a rule laid down by
section 30 of the Conveyancing Act of that year — viz. that an
estate or interest of inheritance, or limited to the heir as special
occupant in any hereditaments, vested on any trust in any
person solely shall on his death devolve to and become vested in
his personal representative in like manner as if the same were a
chattel real. A devise of a freehold estate held upon trust is
therefore an ineffectual thing ; despite the devise it now passes
to the trustee's executor or administrator. What happens when
the trustee has not appointed an executor and no one has as
yet applied for letters of administration is not very clear. The
goods of an intestate used to belong to the ordinary until
administration was granted ; after the Probate Court was
established they passed to the judge of that Court ; they now,
I take it, pass either to all the judges of the Supreme Court or
VII Devolution of Trustee's Copyholds 89
to the judges of the Probate Division. The question can
hardly arise unless some one during the interval steals some of
the goods. In such a case it would be necessary in the
indictment to specify the person whose goods he stole; and
I take it that, to use the technical phrase, the property would
be laid in the judges of the Probate Division ^ But the section
of the Conveyancing Act says nothing about this interval,
which may conceivably be a considerable one, and it is far
from clear that during the interval the estate is not in the
trustee's heir, hi re Fillings Trusts, 26 CD. 492, Pearson J.
raised this question, but did not decide it. The effect of this
section on copyholds was somewhat uncertain. The Copyhold
Act of 1887, sec. 45 (now replaced by sec. 88 of the Copyhold
Act of 1894) provides that section 30 of the Conveyancing
Act of 1 88 1 shall not apply to land of copyhold or customary
tenure vested in the tenant on the Court Rolls of any manor
upon trust or by way of mortgage. A question has been
raised as to whether or how far the Act of 1 887 is retrospective,
and as to whether it was necessary. Lindley L.J. has sug-
gested that the 30th section of the Act of 1881 did not, despite
its very general language, apply to copyholds at all (/« I'e
Mill's Trusts, 37 CD. 312; 40 CD. 14). However, at any
rate as to persons dying after the Act of 1887, the new rule
has no application to copyholds. T, tenant in fee simple on
the Court Rolls upon trust, dies intestate, his rights pass to his
customary heir ; also, T has the power to devise his rights. It
was, I take it, supposed that the new rule, the rule of the
Conveyancing Act, could not be made to apply to copyholds
without giving rise to some difficult questions as to the lord's
rights to fines. Might he not claim one fine from the heir,
and then, an administrator having been appointed, a new fine
from the administrator?
As to freeholds the new rule was, I suppose, introduced for
two reasons. It prevents the trustee's estate from descending
to, at any rate it prevents it from being permanently vested in,
an infant — this is one gain. Also it gets rid of the question,
^ Or possibly in the President of that Division. See per Channell J. Whitehead
V. Palmer, 1908, 1 K.B. at p. 157, but see John v. John, 1898, 2 Ch. 573 al
P- 576.
oo Lectures on Equity Lect.
often a difficult one, whether a trust estate has passed by a
general devise.
Then we come to the Act of 1897, the Land Transfer Act
of that year.
This is very important as regards the general law of
inheritance, but owing to the statutes already mentioned it
made no great change in the matter of which we are speaking.
By section 2, the personal representatives of a deceased
person shall hold the real estate as trustees for the persons by
law beneficially entitled thereto, and those persons shall have
the same power of requiring a transfer of real estate as the
persons beneficially entitled to personal estate have of requir-
ing a transfer of such personal estate.
These provisions apparently have no effect on the fate
of freehold vested in the dead man as a trustee — that already
goes to his personal representative — but what happens as to
copyholds held upon trust? They are excluded from the
operation of the Act by section i, sub-sec. 4. But equitable
interests in copyhold are within the Act : In re Sonierville aitd
Tuimers Contract, 1903, 2 Ch. 583.
ic) Whoever comes to the trust estate as representative
(heir, devisee, executor or administrator) of a dead trustee, is
bound by the trust ; but it does not follow from this that he is
capable of actively executing the trust. Let us begin with a
simple case, T holds land in fee simple, upon trust for S in fee
simple. T dies and the trust estate passes to T', who is his
heir, or devisee, or under the new law his executor or adminis-
trator. Here T' is bound by the trust, and since the trust is
of the simplest kind he is capable (unless suffering under some
personal disability) of executing the trust, and is able to do all
that T was bound to do. For what was T's duty t Simply
to do nothing until S should call upon him to transfer the
trust estate either to him, S, or to some assignee of his. No
discretion is required of him, he has not to consider whether
this or that act will be a prudent one. S has in equity an
absolute right to call upon him to transfer the trust estate as
he, S, shall direct. In one of the several senses that have been
given to the term ' bare trustee,' T is a bare trustee, he has
only to transfer the trust estate according to the direction of
VII Powers of a Trustees Exectttor 91
another person who is entitled to direct him in the matter.
But put another case. By my will I give all my property to
A, B and C upon trust to sell it. Before any sale is made, A
dies, B dies, and then C dies ; the legal estate passes to D as
the representative of C, the last surviving trustee. He is bound
by the trust ; if he does anything contrary to the trust he
renders himself liable to an action. But can he actively
exercise the trust, this trust for sale? Suppose he attempts to
do so ; he agrees to sell the testator's land to X. X examines
his title, reads the will and says ' But the testator has not
trusted jj'C'w to sell ; he chose out three friends of his whom he
had reason to believe were able men of business, he has shown
no intention whatever of allowing you, whose very name he
did not know, to make the sale. In one sense, of course, you
are a trustee, that is to say, you have the estate, and must not
in any way act contrary to the trust ; that is one thing ; but
to act as though the testator had confided to you the discre-
tionary power which he gave to three chosen friends is quite
another.'
In a well drawn instrument the conveyancer will have met
such objections in advance. Usually he will have done so by
making plain that the representative of the last survivor of
the trustees named in the instrument is to have all the pov/ers
which are given to them. Thus let us take a good precedent
of a will of real and personal estate, where the whole is to be
converted into one fund which is to be invested. The testator
says ' I give all my real and personal estate unto and to the
use of A, B, C, their heirs, executors and administrators
respectively upon trust, that they the said A, B, C, or the
survivors or survivor of them or the heirs, executors, or
administrators respectively of such survivor, shall sell, and
shall invest, and shall hold the invested fund, and shall pay
the income and so forth' — thus making it clear that whoever
gets the trust estate under the will, will be both competent and
bound to actively exercise the trusts for sale and so forth.
But a badly drawn instrument will often occasion great diffi-
culty. There have been many decisions on the subject. Of
late the courts have been strongly inclined to hold, if possible,
that the representative of the surviving trustee is able actively
92 Lectures on Equity Lect.
to execute the trust for sale\ I am not going into a discussion
of ill drawn instruments, but I want you to see that it does not
follow that because a trust estate has come to X as the repre-
sentative of a dead trustee, that therefore X can actively
execute the trust. It is quite possible that X's one duty is
simply to hold the trust estate until some other trustee has
been properly appointed. It is a question of intention, of
intention expressed in the instrument that creates the trust.
{d) I have been speaking of the devolution of the trust
estate on the death of a trustee. But during his lifetime the
trustee can pass his rights to another. I shall have much
more to say of this matter hereafter when we are considering
the nature of the rights of a cesUii que trust. But let us put
a simple case. T holds land in fee simple upon trust for S in
fee simple ; T has the legal estate. Now T is fully capable of
conveying that legal estate tJiter vivos ; of doing this volun-
tarily, or doing it for valuable consideration ; of doing this in
accordance with the trust, or doing it in breach of the trust.
We will suppose that he does it in breach of trust. He
conveys the land unto and to the use of X and his heirs either
gratuitously or for value. Now this is not a nugatory act. It
does pass legal rights to X; the legal rights which T had have
passed to X. T has committed a breach of trust, and will be
liable for all harm that follows. In many — though in by no
means all — cases X will have to hold that land subject to the
trust. But still we cannot possibly treat this case as though
nothing had been done, or as though T had merely attempted
to convey away what did not belong to him. He has con-
veyed away what did at law belong to him, and this convey-
ance may have the most important results. Of those results
I shall speak at another time. But I want you to distinguish
two different questions — (i) Has the trustee conveyed away
the estate that was vested in him? (2) Was he committing
a breach of trust in so doing? Sometimes we muddle up
these two questions by our use of the word 'can.' If T is
holding land simply in trust for S, in one sense he can not sell
and convey it without the consent of S — that is to say by sell-
^ See hi re Morion and Halhtt, 15 Ch. Div. 143, a case which Professor
Maitland had argued both before Jessel M.R. and the Court of Appeal. (Edd.)
VII Majority no power to bind Minority 93
ing and conveying it he will be guilty of a breach of trust.
But in another and a more exact sense he can sell and convey
it, and the sale and conveyance will not be nugatory. A man
can do many things that it is unlawful for him to do, and
a man can do lawfully (in the narrower sense of that word)
many things that equity forbids him to do. At law the trustee
has all those powers of alienating inter vivos, mortgaging and
so forth, that he would have were there no trust in existence^
An attempt to speak briefly of the duties of trustees is
something like an attempt to speak briefly of the duties of
contractors. In the case of contract one has to content oneself
with saying very little more than that the contractor must
fulfil his contract, or else one must go through all the various
kinds of contract, sale, lease, mortgage, loan, bill of lading,
charter party and so forth. In the case of trusts the difficulty
is almost greater, for imperfect as must be any classification
of all the contracts which our English law enables men to
make, our classification of trusts is likely to be yet more
imperfect. Within very large limits, such as are set by the
rule against perpetuities, and the rules laid down by the
Thellusson Act, and again by somewhat vaguer rules which
condemn immoral trusts and trusts contrary to public policy,
a man may create what trusts he pleases. Settlors make a
very large use of this liberty, and the consequence is that trusts
are almost infinitely various. We can do no more than notice
a few very general rules, and notice further that even these
few are for the more part but rules of construction, rules which
will easily give way if the testator has expressed any intention
contrary to them.
In the case of private trusts our law and our equity does
not recognize any power in the majority of a body of trustees
to bind a minority. Thus suppose that a testator has devised
his land to trustees upon trust to sell : they all must join in the
conveyance — a majority of them can not pass the estate that
is vested in them all. But further, in equity a trustee can not
shelter himself by saying that he was outvoted, that though
he consented to the sale and took part in the conveyance, he
was not satisfied with the price, but gave way to a majority.
^ See e-g. Boursoi v. Savage, L.R. 2 Eq. 134.
94 Lectures on Equity Lect.
So let the question be about a change in the investment of
a trust fund — the change can not be made unless all the trustees
consent, and if it be a breach of trust no one of them will be
able to say that he was bound by a resolution of the majority.
Of course, however, a settlor may give power to a majority,
but in the case of private trusts this is but seldom done.
The case of co-trustees is different from the case of co-
executors. Each executor taken singly has a very large power
of administering the personal estate of his testator, collecting
debts, giving valid receipts, selling and assigning portions of
the estate. On the other hand, unless the settlor has said
something very unusual, one out of several co-trustees has no
similar powers. Therefore, e.g., in paying money that is due
to trustees you should obtain a receipt from them all.
It is a very general rule that the ofifice of trustee can not be
delegated. Trustees can not shift their duties on to the shoulders
of others ; if they purport to do this they still remain trustees
and are liable as such. If a trustee confides the application of
a trust fund to another, whether that other be one of his co-
trustees or a stranger, he will be personally answerable for any
loss that ensues. Of course there is a great difference between
attempting to delegate a trust and obtaining professional help
in the exercise of a trust, the help for example of a solicitor or
counselorof a broker, banker, land-agent, valuer, auctioneer. As
regards the obtaining of such professional assistance the only
general rule is that, in the absence of an expressed intention to
the contrary, a trustee may obtain such assistance wherever,
regard being had to the ordinary course of business, it is
reasonably necessary that he should do so. And he may pay
for it, what it is reasonably necessary that he should pay, out of
the trust property. It is even reasonably necessary in some
cases that the trustee should allow trust property to come
under the control of agents thus appointed. In this respect,
however, the Court of Chancery has not dealt very liberally
with trustees; for example, a trustee for sale was not in general
justified in directing that the purchase money should be paid
to a solicitor. The Trustee Act, 1888, sec. i, now the Trustee
Act, 1893, sec. 17, has made a considerable dificrence in this
respect. In some cases it empowers a trustee to direct that
VII Trustee may employ and pay Agents 95
payment shall be made to a solicitor or to a banker. I must
not speak in detail about this matter, but on the whole the
rule that a trustee cannot delegate his office, even to a co-
trustee, has been rigorously maintained. To justify a partial
delegation there must, said Lord Hardwicke, be a case of
necessity, physical necessity or moral necessity. ' Moral
necessity ' he added ' is from the usage of mankind, if the
trustee acts as prudently for the trust as he would have done
for himself and according to the usage of business.' {Ex parte
Belchier, Amb. 219.) This matter has been very fully discussed
of late in the great case oi Speight v. Gaunt {() Ap. Cas. i) before
the House of Lords. That house there held that a trustee
had been justified in employing a stockbroker and in paying
large sums of trust money to him which he was to invest, and
which he untruly purported to have invested in the purchase
of stock. I will read a few sentences from the judgment to
the same effect that was delivered in the Court of Appeal by
Bowen L.J., 22 Ch. D. at p. 762.
' Now with regard to the law it is clear that a trustee is
only bound to conduct the business of the trust in such a way
as an ordinary prudent man of business would conduct his
own.... A trustee cannot, as everybody admits, delegate his
trust. If confidence has been reposed in him by a dead man
he cannot throw upon the shoulders of somebody else that
which has been placed upon his own shoulders. On the other
liand, in the administration of a trust a trustee cannot do
everything for himself, he must to a certain extent make use
of the arms, legs, eyes and hands of other persons, and the
limit within which it seems to me he is confined has been
described throughout, both in the cases which have been
referred to and the judgments which have preceded me, to be
this : — that a trustee may follow the ordinary course of business,
provided that he run no needless risk in doing so.' So far
Bowen L.J. There should be no needless risk run. Now if a
man has to purchase stock he must almost of necessity employ
a stockbroker and pay the price to that stockbroker. The
Court of Appeal and the House of Lords held that a trustee
in doing this was following the ordinary course of business,
and was running no needless risk.
96 Lectures on Equity Lect.
Compare the case of /;-; re De Pothonier, 1900, 2 Ch. 529,
where securities with coupons attached, and payable to bearer,
were deposited with a banker in order that he might detach
the coupons and thus collect the interest as it fell due, and
this was held to be justified.
A trustee is not entitled to any remuneration. He is
allowed his expenses out of pocket. He may charge against
the trust estate all costs, charges and expenses which have
been reasonably incurred; thus, e.g., he may charge his travel-
ling expenses if reasonably incurred. He is generally entitled
to employ a solicitor for any legal business, such as that which
solicitors usually perform. Costs, charges and expenses, those
properly incurred, become as against the cestui que trust a first
charge on the trust property. On the other hand a trustee is
allowed nothing for his trouble unless the creator of the trust
has thought fit to say something to the contrary. Even
though the trustee be a solicitor he will not be allowed to
charge anything for his time and trouble. Of course, however,
a settlor may arrange the matter otherwise, and it seems that
a person before he accepts the office of trustee may bargain
with the cestui que trust and say • I will not be a trustee
unless you agree to pay me a salary,' but such bargains are
closely scrutinized by the court, and may somewhat easily be
brought under the head of undue influence. But normally the
trustee can claim nothing for his pains.
A trustee must not profit by the trust. This rule includes
that which we have just been stating but it goes much further.
If the trustee gets any valuable advantage, any property, by
reason of his office, that becomes part of the trust property.
We may treat as an offshoot of this general principle the
important rule that a trustee is absolutely disqualified from
purchasing the trust property — even though it be by public
auction. This is an absolute rule, it does not say merely that
if the trustee gives less for the property than might otherwise
have been obtained, he must pay the full value of what he
bought and not merely the price that he agreed to pay for it ;
it says that however fair, however advantageous to the cestui
que trust the purchase may be, the cestui que trust is at liberty
to set it aside and take back the property. The trustee may
VII Purchases by Trustee from Beneficiary 97
not buy the trust property from himself on his own behalf;
nor may he buy it as the agent of another person. On the
other hand, a trustee may sometimes buy the trust property
from his cestui que trust — buy that is the beneficial interest.
There is no absolute rule against this. But equity requires in
this case that the cestui qjie trust should fully understand that
he is selling to the trustee and that the trustee should make
a full disclosure of all that he knows about matters which
affect the value of the property. Purchases by the trustee
from the cestui que trust are not forbidden ; but they are
closely watched and the trustee may be called upon to show
the utmost good faith. The ground of this rule is obvious —
the trustee has had an opportunity of knowing, and it is his
duty to know all the circumstances affecting the value of the
property.
M. E.
LECTURE VIII.
THE DUTIES OF TRUSTEES.
T AM speaking of the duties of trustees. So various are
trusts that the only general rules that we can lay down about
them are few and very general.
(i) A trustee is bound to do anything that he is expressly
bidden to do by the instrument creating the trust, (ii) A
trustee may safely do anything that he is expressly authorized
to do by that instrument, (iii) A trustee is bound to refrain
from doing anything that is expressly forbidden by that
instrument (of course I am supposing that the provisions of
the instrument in question are in no wise invalid or unlawful).
Within these limits a trustee must (iv) play the part of a
prudent owner and a prudent man of business. That is the
standard by which his conduct will be judged. We can say
little more without descending to particulars. When we get
down to particulars, when we come to trusts of this class or
that class, then we are likely to find some more specific rules.
You will remember that in the development of equitable rules
trial by jury has played no part. Consequently Equity has
taken, if I may so speak, a somewhat different shape from
that which has been assumed by some portions of our
Common Law, notably the law of torts. In the law of torts
there is constant reference to an ideal standard of conduct, the
conduct of the m.an of average prudence and intelligence; but
this man, we may say, is represented by the jury. Often
enough a judge has to say ' Gentlemen it is not for me to say
whether the defendant acted negligently or whether he behaved
as a prudent man would behave — I must leave that to you.'
The verdicts which jurors give in answer to this question are
Lect. VIII Standards of Prudence 99
no precedents. On the other hand a judge in the Court of
Chancery sitting alone has had to decide every question
whether of fact or of law. He has not been able to escape the
duty of deciding that a trustee in doing this or that — let us
say in paying trust money to a stockbroker for investment —
was or was not acting as a prudent man of business would
have acted. His decision is reported and it becomes a prece-
dent. In the next case of a similar kind counsel will argue
that the point is covered by authority. And so many rules
about the conduct of the prudent man of business get estab-
lished. Still they are somewhat dependent rules, and you
will find that generally they are not hard and fast rules — they
will admit of exceptions. A judge will say from time to time
' That is a sound general rule, but after all it must give way
before the yet more general one that a trustee acting within
the terms of his trust may do what would be done by a
prudent man of business, and in the circumstances of this
particular case I think that the minor rule might be dis-
regarded.'
As is well observed by Mr Strahan in his Digest : — ' To
cite authorities, as is often done, to show what amounts to
reasonable care, prudence, or intelligence, is, it is submitted, a
misleading and dangerous practice. It is an attempt to
decide a point of fact, not by evidence but by authority, and
tends to the establishment of a doctrine of " constructive "
want of care, &c., similar to the venerable but exploded
doctrine of " constructive" frauds'
I will try to illustrate this matter by reference to one class
of trusts — a very common class — trusts for investment.
Almost every settlement throws upon the trustees the duty of
investing money. And even if there is no express declaration
that money is to be invested still it is a general rule that if
trustees have money in their hands and are not bound at once
to apply it in some other way, e.g. in paying it over to the
beneficiaries, they ought to invest it and so make it profitable;
if they retain it uninvested for a longer time than is reasonable
then this will be a breach of trust.
^ Strahau and Keniick, Digest, at p. 94.
loo Lectures on Equity Lect.
Now we may start with our paramount rules. A trustee
is bound to do what he is expressly bidden to do by the terms
of the trust, supposing that to be lawful and possible. He is
told to invest the fund in government securities. Subject to
the provisions of certain Acts of Parliament which I shall
mention by and by, he is bound to do this. He may safely
do what he is expressly authorized to do. He is, for example,
authorized to make investments of a highly hazardous nature
such as prudent men do not ordinarily make — he may do it.
He is authorized to lend the trust fund to one of the cestui que
trusts taking merely a promissory note — well, lending money
without taking security is of course hazardous; still he has
been told that he may do it, and do it he may. He may not
do what he has been expressly forbidden to do. The testator
had a capricious and unreasonable dislike to some of the very
safest securities, and he expressly prohibited any investment
in them. This prohibition binds the trustee ; if he invests
upon those prohibited securities he will be answerable for any
loss that occurs. Within the limits thus laid down, the rule is
that the trustee must act like a prudent man of business.
Long ago however the Court of Chancery came to an
opinion as to what the prudent investor does. He invests in
the three per cent. Consolidated Bank Annuities. This
became the rule. In the absence of express powers created
by the settlement trustees ought to invest in these Annuities.
There was at one time some doubt about mortgages of real
estate, but I believe that the better, certainly the safer, opinion
was that a trustee not expressly empowered to do so should
not invest in these. The one investment open to him was the
3 "/o Consols. When this doctrine was established the number
of possible investments was very small. In course of time
many new modes came into being, and almost every will or
settlement contained a long clause giving the trustee a choice
of investments, sometimes a narrow, sometimes a very wide
choice. Then Parliament began to interfere, to say by statute
that trustees unless expressly forbidden so to do might invest
in this way or in that. I think that we are absolved from
discussing these statutes for in 1889 a very comprehensive Act
was passed, the Trust Investment Act of 1889, which was made
VIII Trustee Investments loi
applicable even to existing trusts. This Act is now replaced
by the Trustee Act of 1 893. Section 1 of the Act of 1 893 says :
' A trustee may, unless expressly forbidden by the instrument
(if any) creating the trust invest any trust funds in his hands
in ' — one of fifteen different ways. I will not read the long
list of permissible investments. It is a liberal list and the
Colonial Stock Act of 1900 adds yet another class to that
list. On the whole I should imagine that prudent settlors will
hardly desire to give their trustees a wider choice ; indeed I
think it possible that they will be concerned rather to restrict
than to enlarge the power of selection that the law gives to
trustees. And this you will observe they can do ; the statute
does not interfere with our rule that a trustee must not do
what he is forbidden to do by the instrument of trust.
But now I would have you observe that these statutes
merely extend the number of the modes of investment which
shall not be unlawful for trustees. They do not say that a
trustee may safely invest in any security which can be brought
under one of the fifteen or sixteen heads. Thus, to take one
example, the Consolidated Stock of the London County
Council is included. Now suppose a trustee acting under an
instrument which tells him to invest in Consols, but does not
expressly forbid him to invest in stock of the London County
Council. If he invests in the latter this mere fact standing
by itself will not be a breach of trust ; still in the circum-
stances of some particular case such an investment may be a
breach of trust. Suppose it notorious that this stock is
becoming worthless, the statute would not save a trustee who
invested in it. Within the limits of what is authorized the
trustee must act prudently.
This is best seen in the case of an investment upon what
are called real securities. In trust deeds and wills it has been
very usual to say that the trustees may invest upon real
securities in England or Wales. And now in the list of
securities authorized by the Acts of 1889 and 1893 we find
'real or heritable securities in Great Britain or Ireland.' But
the Court has long ago come to a doctrine about the liberty
given to trustees by such a phrase as this. Thus it has estab-
lished a rule about the amount of money that should be
102 Lectures on Eqtiity Lect.
advanced on a mortgage. Trustees should not, it is generally
said, advance more than two-thirds of the actual value of the
estate if it be freehold land — i.e. if it be an agricultural estate,
nor more than one-half if it be freehold house property. This
rule is not applied with strict arithmetical rigour, but it is
supposed to formulate pretty accurately the limit that pru-
dence sets. Then again the trustee who is lending money on
mortgage ought to insist upon having a valuation made by
some expert, some independent expert — that is some one who
is acting for him and not for the mortgagor. Then again a
trustee should not lend upon a second mortgage. For a reason
which I hope to give on another occasion second mortgages
are never very safe. I do not know that this is a quite
absolute rule, that the mere fact of lending on second mort-
gage is of itself a breach of trust, but undoubtedly the trustee
who lends on such a mortgage ought to be able to show some
very special reason for doing so. And thus about investments
on ' real securities ' we have a whole group of rules. Some of
them more stringent, some of them less stringent, but all of
them pointing to this that even though the trust deed or the
Act of Parliament authorizes the trustee to choose a security
of this class, he is bound to take all reasonable precautions
before he lends money upon mortgage. Now this is dealt
with by the Trustee Act, 1893, sec. 8, which protects the trustee
against several of his former risks, and in particular where he
has advanced to the extent of not more than two-thirds of a
valuation made for him by a competent surveyor or valuer.
I will choose one other illustration of the law's dealings
with trustees. This also has been affected by recent statutes.
Often enough a trustee is under the duty of selling land.
Often enough this duty was a very difficult one. Before he
offered the land for sale he had to consider the conditions
under which the sale should be made. He had to consider two
different things. On the one hand if he did not make the
conditions stringent enough, the purchaser would be able to
put the trust estate to great cost by insisting on his right to a
sixty years' title and on strict proof of the matters of fact
involved in the title ; and then after all when the cost had
been incurred perhaps the purchaser would raise some small
VIII Sales of Land by Trustees 103
and yet valid objection and so slip out of the contract. On
the other hand if he made the conditions extremely stringent,
this might frighten away purchasers and the land might be
sold below its true value. Well, I do not know that any more
definite general rule could be laid down than that reasonable
conditions were permissible and that unreasonably stringent
conditions were not permissible. Certainly however the
Court's standard of reasonableness was a high one. It con-
sidered that he would be right in taking legal advice, in having
the title perused and the conditions drawn by a lawyer, and if
he did not do this he acted at his peril. For the conveyancer
it was (and still is) often a delicate task to advise a trustee
who was selling. There were certain rules about divers
conditions of sale which have a certain validity — it was
generally understood that this or that condition was one which
a trustee might use — but all these rules might give way in a
given case, for they were but emanations (if I may use that
phrase) of the one great rule that a trustee ought to insert all
reasonable but no unreasonable conditions.
Of late Parliament has given us some help. The Vendor
and Purchaser Act of 1874 laid down certain rules which were
to prevail between vendors and purchasers in the absence of
any stipulation to the contrary — rules much more favourable
to vendors than the old unenacted rules had been. And then
it said that ' trustees who are vendors or purchasers may sell
or buy without excluding the application ' of these rules. This
policy was carried much further by the Conveyancing Act of
1 88 1. A much larger body of rules favourable to vendors was
laid down as applicable wherever not excluded by express
stipulation. And then (sec. 66) it was said in effect that
trustees might treat these rules as being reasonable. Finally
the Trustee Act of 1888 and the Trustee Act of 1893, sec. 14,
have done yet more for those who buy from trustees. A sale
by a trustee is not to be impeached upon the ground that it
was made under depreciatory conditions unless it shall appear
that the consideration for the sale was thereby rendered
inadequate. After conveyance the sale can not be impeached
as against the purchaser on the ground that the conditions
were depreciatory unless it shall appear that the purchaser
I04 Lectures on Equity Lect.
was acting in collusion with the trustee. This however is
rather a protection for the person who buys from the trustee
than for the trustee himself, and subject to the two earlier Acts
we still may have the question arising — Was the trustee
justified in inserting or in omitting a condition of this or
that kind ? I know no general answer to this save that he
ought to use such conditions as a prudent vendor would use
and to avoid such conditions as a prudent vendor would avoid.
We may notice in this place the Judicial Trustee Act of
1896. Section 3 says in brief that the Court may relieve from
personal liability for breach of trust a trustee who has acted
honestly and reasonably and ought fairly to be excused for
that breach. This statute in effect declares that trustees may,
according to the existing law, be guilty of breaches of trust not
only if they act honestly, but if they act reasonably. I do not
think that Courts of Equity would have admitted that this
was so, though in truth they had (so to speak) screwed up the
standard of reasonableness to what many men would regard
as an unreasonable height. If this was so, then it was for
Parliament to lower the standard. That however is not what
Parliament has done. What but for the Act would have been
a breach of trust will be one still ; but the Court is to have a
discretionary power of 'relieving' the trustee from the legal
consequences of his act. The consequence is that (as the law
reports show) the Courts have now before them the difficult
task of defining a second and lower standard — a standard of
excusable breaches of trust. This, it is already evident, will
be a difficult and prolonged task. For my own part I can not
think that in the civil, i.e. non-criminal, law there should be
any place for discretionary mercy. If the act is one for which
a trustee ' ought fairly to be excused ' then it ought not to be
stigmatized as a breach of trust. For a good example of the
considerations which may disentitle the trustee to relief under
this Act you should read the case of Iti re Stuart, 1897,
2 Ch. 583, and also the case of National Trustees Company of
Atistralia v. General Finance Company of Australia, 1905,
Appeal Cases 373 ^ The case of Perrins v. Bellamy, 1899,
^ A decision of the Judicial Committee of the Privy Council on a Victorian
statute in the same terms as section 3 of the Judicial Trustee Act, 1896.
VIII How men cease to be Trustees 105
I Ch. 797, is a good instance of the granting of relief to
trustees who have honestly and reasonably committed a clear
breach of trust.
We have considered how men become trustees; we have
now to consider how they cease to be trustees. But here we
must draw a distinction. In one sense a trustee may cease to
be such by wrongfully alienating those rights which he has
been holding upon trust. Thus if T be holding land or goods
upon trust for A and he conveys the land or the goods to X,
he, T, will no longer be holding anything upon trust. It may
be that in certain cases he will still have a right and a duty to
recall this wrongful alienation, to get back the property and
again hold it upon trust. But it may be that he can not do
this; he can not do it if he has passed the legal estate or legal
property to one who purchased bona fide, for value and without
notice of the trust. In that case he no longer holds the land
or the goods in trust and he is unable to get them back. Still
even in this case if the money that he received from the
purchaser is still in his hand, or if it can still be traced into
any investment, then he holds this money or the fund into
which it has been converted upon trust. Of this tracing of
trust funds I should like to speak at another time. But even
this may not be the case ; the money that he received may no
longer be traceable, and he may be insolvent. Here then he
will be holding nothing upon trust. I do not think that we
can in strictness call such a man a trustee ; it is true that he
is liable for his breach of trust ; but then a man who has been
lawfully discharged from the office of trustee may still be
liable to an action in respect of some past and perhaps as yet
undiscovered breach of trust.
At any rate we must distinguish this wrongful destruction
of the trust from a lawful ending of it. How can a man law-
fully cease to be a trustee .''
(i) By death. This requires no commentary. But his
estate may be liable ; and his representatives may be trustees
if he be a sole or the sole surviving trustee.
(2) By duly winding up the trust by conveying the trust
property to those who have become lawfully entitled to receive
it and to give him a valid receipt for it. T held a fund upon
io6 Lectures on Equity Lect.
trust to pay the income to the widow of S, and divide the
capital among the children of S. The widow is dead. All
the children are of full age. T assigns to each child his share.
The trust is at an end and T is no longer a trustee.
(3) With this is closely connected another mode. T holds
property upon trust for several people; they are all of full age
and under no disability. If all of them agree in directing T
to do something with the property and T does it and thereby
divests himself of the property, the trust is at an end and he
is no longer trustee. T, for example, held a fund upon trust
to pay the income to the widow of S for life, and then to divide
the capital among the children. The children are all of full
age but the widow is still living. Now if the widow and
children tell T to transfer the property to K, or to divide it
among them, and T does this, the trust is at an end and T is
no longer a trustee. Here of course it can not be said that T
has obeyed to the letter the instrument of trust, for that bade
him go on paying the income to the widow as long as she
should be living. The principle is this : No cestici que trust
who consents to a breach of trust, being of full age and under
no disability, can afterwards complain of it — so if it be clear
that T is a trustee for A, B, C and D, and that no other
person has or can have an interest in the property, and A, B,
C and D being of full age and under no disability agree in
desiring T to divest himself of the property in this way or in
that way, T is safe in doing it, and by doing it will bring the
trust to an end. Not only is he safe in doing it but he is
bound to do it. T, let us say, holds property upon trust for
me for life and, subject to my life interest, upon trust for you
absolutely. You and I agree that we would like to have the
capital divided between us now, that I am to have a quarter
and you three-quarters, or we agree that the property should
go to a charity, T will be safe in carrying out our declared
wishes and is bound to carry them out. And so all the
beneficiaries being competent persons they can at any time
put an end to the trust. Of course if there be infants among
the beneficiaries, or if the trust comprehends unborn children,
it can not be thus brought to an end.
(4) By virtue of a power given by the settlement or by
VIII Appointment of new Trustees 107
Act of Parliament the trustee may resign his office and divest
himself of the trust property by passing it on to some new
trustee. Apart from powers given expressly by the settlement
or by certain modern statutes the trustee can not resign his
ofifice, and he can not lawfully appoint a new trustee ; to do so
would be to delegate the trust. It was usual therefore in
every well drawn instrument of trust to insert a power for the
appointment of new trustees, and this power was expressly
made applicable to a case in which a trustee desired to retire
from his office. However it was common enough to find that
no such power had been inserted. In that case it used to be
necessary to institute a suit and to have new trustees appointed
by the Court. Then an Act of i860, known as Lord Cran-
worth's Act (23 and 24 Vic, c. 145), gave a certain general
power of appointing new trustees. This was a useful power
and reliance was often placed upon it. But we need not
discuss it now, for it has been replaced by certain sections of
the Conveyancing Act, 1881, which deals with trusts created
either before or after the Act. This is now represented by
Part II of the Trustee Act, 1893, which is a Consolidation
Act. It gives a power to appoint a new trustee. This power
is exercisable where a trustee either original or substituted is
dead, or remains out of the United Kingdom for more than
twelve months, or desires to be discharged, or becomes unfit
to act or incapable of acting. The power is to be exercised
by the person or persons nominated for this purpose by the
instrument creating the trust, or if there be no such person or
none who is able and willing to act, then by the surviving or
continuing trustees or trustee, or the personal representative
of the last surviving or continuing trustee. The power must
be exercised by writing — not necessarily by deed. It is, you
will see, possible for the creator of the trust to nominate in
the instrument creating the trust the person who is to exercise
this statutory power. Thus suppose a man making a will in
favour of his wife and children in the common form, he will
probably say ' And I declare that during my wife's lifetime
she shall have the power of appointing new trustees.' And in
a marriage settlement one will probably say ' And it is hereby
agreed that the husband and wife during their lives and the
io8 Lectures on Equity Lect.
survivor of them during his or her life shall have the power to
appoint new trustees.' These simple clauses have taken the
place of the old lengthy forms. If there be no person
nominated and able and willing to exercise the power, then
the surviving or continuing trustees or trustee, or the repre-
sentative of the last survivor, will have the power to appoint.
Thus it is generally possible nowadays for a trustee to retire
lawfully from his office, and divest himself of the trust property
in favour of a new trustee.
(5) These powers, however, will not meet all cases.
Formerly, as I have said, it was very common to find that
there was no power to appoint new trustees. In these cases
a suit was necessary. A suit was an expensive affair. The
Trustee Act of 1850 (13 and 14 Vic, c. 60) gave the Court of
Chancery a power to appoint new trustees whenever it was
found inexpedient, difficult or impracticable so to do without
the assistance of the Court ; and a summary procedure, some-
thing much cheaper and more rapid than a suit, was instituted
for the purpose. This power will still be useful in some cases,
and in late days the procedure has again been simplified.
This statutory power is now contained in section 25 of the
Trustee Act, 1893.
You will observe, however, that the various Acts of Parlia-
ment that I have been mentioning contemplate only an
appointment of new trustees ; they do not contemplate a
trustee retiring unless there be some one ready to perform the
trust. And I believe I may say that a sole trustee has no
right to retire so long as a new trustee can not be found. He
has accepted the trust, and he is bound to perform it — ev^en
the Court can not relieve him of it unless he can produce a fit
and proper person willing to take his place.
(6) A trustee may be removed from his office against his
will. You will have observed for example that the Con-
veyancing Act of 1 88 1 (now the Trustee Act of 1893, sec. 10)
allows the appointment of a new trustee if an old trustee
remains for twelve months out of the United Kingdom. A
settlor might provide for other cases in the same way. But
apart from such powers the Court will remove a trustee who
has shown himself an unfit person for the office. Thus if
VIII Transfer of Pyoperty to New Trustees 109
a trustee becomes bankrupt or commits a breach of trust pro-
ceedings may be taken by the beneficiaries, and he can be
removed from his office even though (as sometimes happens)
he is desirous of continuing to be a trustee.
And now there are two distinctions that we ought to take,
(i) We distinguish between the appointment of new
trustees and the transfer of the trust property from the old
trustees to the new. Put a case : T is trustee of all manner
of property ; he goes to reside abroad ; A is tenant for life
under the settlement, and has been given a power of appoint-
ing new trustees. He appoints K. At common law this
appointment can not transfer to K the rights that are vested in
T — the legal fee simple in lands, a legal term of years, a sum
of Consols and the like. In order that these may pass from
T to K, T must execute the acts appropriate for transferring
the various rights — convey the fee simple, assign the lease,
transfer the stock and so forth. In some cases such a transfer
was rendered unnecessary by the Conveyancing Act, sec. 34.
Now by the Trustee Act, 1893, sec. 12, the person appointing
a new trustee has power to execute a declaration which will
have the effect of taking the property out of the old and vest-
ing it in the new trustee. This declaration does not transfer
all kinds of property, e.g. legal estates in copyholds, mortgages
to secure trust funds, and stocks and shares transferable only
by entry in the books of a company — see sec. 12 (3) of the
Act of 1 893. The exception of mortgages to secure trust funds
from the operation of this declaration is probably due to the
keen desire of conveyancers to keep the trust off the title.
Other cases in which there is any difficulty about the
transfer can be met by applications to the Court under the
Trustee Acts of 1850 and 1853. And now under the Act of
1893, section 26 and the following sections deal with the
cases where the Court has power to make what is known as
a ' vesting order,' vesting the property in the new trustees.
I must not speak at length of these matters, must only dis-
tinguish the appointment of new trustees from the transfer
of the trust property.
(ii) Distinguish also between an act whereby a man
ceases to be a trustee for the future, and an act whereby he
no Lectures on Equity Lect. VIII
obtains a release in respect of his past trusteeship. Of course
the two things are very distinct, but you may come across
phrases which seem to confuse them, e.g. the term 'discharge.'
A trustee may be discharged from all future duties under the
trust — the property may no longer be vested in him, and he
will be no longer a trustee — yet for all this he may remain
liable to the cestui que trjist for what he has done in the past ;
he has not been released from the consequences of his past
breaches of trust.
LECTURE IX.
THE NATURE OF EQUITABLE ESTATES
AND INTERESTS. (I).
Tuts is a topic which, as it seems to me, is insufificiently
explained in some of our elementary text-books. Language
is there used about one person being the owner at law while
another is the owner in equity in which there is no harm, pro-
vided it be properly understood ; but it does not explain itself
and is liable to lead to serious mistakes, not merely to unsound
theories but to practical blunders.
By way of illustration I take a passage from Austin's
Jurisprudence, I, 388. He has been explaining the difference
between jus m persotiam and Jus in rem. Then he says ' By
the provisions of that part of the English law which is called
equity, a contract to sell at once vestsyV/j in rem, or ownership,
in the buyer, and the seller has only J21S in re aliena. But
according to the conflicting provisions of that part of the
English system called peculiarly law, a sale and purchase
without certain formalities merely gives Jus ad rem, or a right
to receive ownership, not ownership itself: — and for this reason
a contract to sell, though in equity it confers ownership, is yet
an imperfect conveyance, in consequence of the conflicting
pretensions of law. To complete the transaction the legal
interest of the seller must be passed to the buyer in legal
form.'
Now as a piece of speculative jurisprudence this seems to
me nonsense, while as an exposition of our English rules, I
think it not merely nonsensical but mischievous. Suppose
that A, an owner of land, has agreed to sell land to X, but that
the transaction has not yet been perfected by a conveyance.
Is it really true that while law, as distinguished from equity.
1 1 2 Lectures on Equity Lect.
says that A is still the owner, equity holds that X is the owner?
Is it true that in the year 1874 there was this conflict between
law and equity? Think for a moment what such a conflict
would have meant, one court saying that A is owner, another
that X is owner — it would simply have meant anarchy. And
supposing that this was so in 1874, what are we to say
nowadays when the Judicature Act of 1873', by section 25, has
declared that when there is a conflict or variance between the
rules of equity and the rules of the common law, the rules of
equity shall prevail ? If the contract passes ownership, why
be at the expense of a conveyance? Is it either law or equity
at the present moment that a mere contract to sell land
passes the ownership in land, passes a jjis in rem from the
vendor to the purchaser ?
No, the thesis that I have to maintain is this, that equitable
estates and interests are noX. jura hi rem. For reasons that
we shall perceive by and by, they have come to look very like
jura in rem ; but just for this very reason it is the more
necessary for us to observe that they are essentially //^rrt in
personam, not rights against the world at large, but rights
against certain persons.
I need not here repeat how in the fifteenth century it
became common for landowners to enfeofl" their friends to the
use of them, the feoffors, or describe the reasons why this was
done — to evade the Statute of Mortmain, to evade feudal dues
and forfeitures, to evade the rights of creditors, to acquire
a power of disposing of lands by will ; nor need I say how the
Chancellors enforced these uses, how a statute of 1535 (27
Hen. VIII, c. 10) tried to put an end to the system, or how
the old use reappeared under the newer name of trust. Rather
let us notice that from the very first the Chancery began to
adopt the rules of common law as a model in its dealings with
the rights of those for whom lands or chattels were held in use
or trust — let us say for the rights of ' beneficiaries,' The
beneficiary was treated as having an estate in fee simple, or in
fee tail or for life in the use or trust, an equitable estate ; or
as having a term of years in the use or trust. These estates
and interests were to devolve and be transmitted like the
^ The Judicature Act came into operation on Nov. ist, 1875.
IX Equity followed the Law 113
analogous estates and interests known to and protected by
the common law. The equitable fee simple would descend to
heirs general, the equitable estate tail to heirs in tail, equitable
chattel interests would pass to the executors or administrators.
In all such matters the analogies of the common law prevailed ;
the Chancery moulded equitable estates and interests after the
fashion of the common law estates and interests.
The equitable estate or interest could be conveyed or
assigned inter vivos. Until the Statute of Frauds (29 Car. II,
c. 3) it could be conveyed or assigned by word of mouth. The
9th section of that Act says that all grants and assignments
of any trust or confidence [' any ' you will observe — whether
the subject-matter of the trust be land or personal property]
should be in writing signed by the party granting or assigning
the same [observe, nothing about an agent], or by his last will,
or otherwise should be utterly void and of none effect. That
is the law now-a-days. Observe that a deed is not required
even for the conveyance of an equitable fee simple.
Then again equitable estates or interests, if they are of
such a kind that they do not expire with the death of the
cestui que trust, can be devised or bequeathed by him. Exactly
the same solemnities are required of a will that is to pass such
an estate or interest as of a will that is to pass the legal estate
in land or the legal ownership of goods.
The best because an extreme application of this principle,
that equity follows the law, is perhaps to be found in the treat-
ment of equitable estates tail. Legal estates tail could be
barred by fictitious proceedings known as common recoveries.
How were equitable estates tail to be barred ? After some
fluctuations of opinion, it was decided, though not I think
until about the beginning of the eighteenth century, that the
analogies of the common law must be strictly pursued : — there
must be an equitable recovery ; the beneficiary having the
first equitable estate of freehold must make an equitable
tenant to the praecipe, and thus equitable estates tail and the
equitable remainders dependent on them might be barred ^
Even in its fictions and its archaic mysteries the common law
was to be the model.
^ See Lewin on Trusts, nth edition, pp. 869 et seq.
M. E. 8
114 Lectures on Equity Lect,
There were, however, some exceptions, and a few words
about these will make the point clearer.
(i) In the matter of curtesy equity followed the law. When
the law gave curtesy of a legal estate, equity gave curtesy of
a corresponding equitable estate. It even gave curtesy when
the fee simple was settled to, the separate use of the married
woman. But after some hesitation it refused to create equit-
able dower. The reason, I take it, was that dower had become
an intolerable nuisance; when once dower had attached it
could not be got rid of without a fine. This exception was
abolished by the Dower Act of 1833 (3 and 4 Will. IV, c. 105);
it gave equitable dower of equitable estates; but at the same
time it utterly altered the whole nature of dower.
(2) As regards equitable contingent remainders, if such
they ought to be called, equity did not adopt the correspond-
ing legal rules, and does not now adopt them. This point is
still of some importance and I hope to speak of it on another
occasion. The rules of the common law about this matter
had long ago ceased to be reasonable, and there was a good
excuse, as we shall see hereafter, for refusing to extend them
to a new a,nd substantially different class of rights.
(3) There was no escheat of equitable estates. Suppose
land conveyed unto and to the use of T and his heirs in trust
for E and his heirs; E dies without having disposed of his
estate and without an heir. Nothing escheated to the lord ;
he had a tenant T and he was entitled to no more; T might
now hold the land beneficially, the trust was gone and he was
simply owner. However it took a great case {Burgess v.
Wheate, i Eden, 176) to decide this point and it was decided
against the opinion of Lord Mansfield, who was for carrying
out the legal analogy. And now the Intestates Estates Act of
1 884 has removed this exception : there can now be escheat of
equitable estates ; the trustee may have to hold in trust for
the feudal lord.
These exceptional cases, two of which have been abolished
and the third of which — that about contingent remainders —
has no longer its old importance, will be sufficient to illustrate
the wide generality of the rule that equity has permitted the
creation of equitable estates and interests which so far as
IX Remedies of Creditors in Equity 115
regards their transmissible and inheritable quality are copies
of legal estates and interests.
And so again as to the rights of creditors legal analogies
have been pursued. Gradually — but I do not think that this
goes back beyond the Restoration — it was established that
the creditor of a beneficiary might get at the equitable estate
or interest by means oi fi. fa. or elegit. Having got his writ
oi fi. fa. or elegit he might go into the Chancery and there
attack the equitable rights of his debtor. But the legal
analogies were strictly pursued. Before a statute of 1 838 ( i and
2 Vic, c. no, sec. 12) the judgment creditor had no means of
getting at stock in which the debtor had a legal interest,
for stock could not be seized under 'a fi. fa.; even so he was
denied a means of getting at stock in which the debtor had a
merely equitable interest. So the elegit would enable him
only to get at a moiety of the land in which the debtor had
an equitable estate.
We may well say therefore that a cestui que trust has
rights which in many ways are treated as analogous to true
proprietary rights, to Jura in rem. But are they really such?
We must begin with this that the use or trust was origin-
ally regarded as an obligation, in point of fact a contract
though not usually so called. If E enfeoffs T to his (E's) use
the substance of the matter clearly seems to be this that
T has undertaken, has agreed, to hold the land to the use
of E.
To my mind it is much easier to understand why the
Chancellors of the fifteenth century should have enforced such
a compact than why the courts of law should have refused a
remedy. Why should they not have given an action of
assumpsit} (See on this question, Pollock, Laud Lazvs,
Note E.) The action of assumpsit was just being developed
when uses were becoming fashionable. It would I think be
found that the Chancellors were beforehand in this matter
and, by giving a far more perfect remedy than the common
law courts could give, made any remedy in those courts un-
necessary. AH that the cestui que use could have obtained
from them would have been an action for damages ; the
Chancellor compelled the feoffee not only to answer any
8—2
1 1 6 Lectures on Equity Lect.
complaint on oath but also to perform his duty specifically
on pain of going to prison. Anyhow a cestui que use or cestui
que trust never got an action at common law against his
trustee; but all the same it seems utterly impossible for us to
frame any definition of a contract which shall not include the
acts by which ninety-nine out of every hundred trusts are
created, unless we have recourse to the expedient of adding
to our definition of contract a note to the effect that the
creation of a trust is to be excluded. This is excellently
explained by Sir Frederick Pollock'. We are, as I think,
obliged to say that though our definition of contract will
include almost every act creating a trust, yet, for historical
reasons which still have an important influence on the whole
scheme of our existing law, trusts are not brought within all,
or even perhaps the larger part, of the great principles which
form the Law of Contract, but have rules of their own. Thus,
to give one example, though as I have just said ninety-nine
out of a hundred trusts begin in a transaction which must fall
within our definition of an agreement, the hundredth will not;
for I can make myself a trustee for a person, and so create a
trust, without his knowing anything about it, by a declaration
that I hold lands or goods in trust for him. Certainly as a
matter of convenience it seems desirable to keep the Law of
Trust apart from the Law of Contract, though as a matter
of principle it is necessary to see, as we shall see hereafter,
that there are important analogies between the two.
However our present point must be that the Law of
Trusts (formerly Uses) begins with this, a person who has
undertaken a trust is bound to fulfil it. We have no difficulty
in finding a ground for this — the trustee, the feofiee to uses, is
bound because he has bound himself This is the original
notion. The right of cestui que trust is the benefit of an
obligation. This is how Coke understood the matter. ' An
use is a trust or confidence reposed in some other, which is
not issuing out of the land, but as a thing collateral annexed
in privity to the estate of the land, and to the person touching
the \dXidi.,. cestui que use had neither y«j in re nor Jus ad rem,
but only a confidence and trust.' (Co. Lit. 272 b.)
* i'rincipUs of Contract, 7th edition, pp. 208-9.
IX Steps in the Enforcement of Trusts 117
But if this be so, why is it that the rights of cestui que trust
come to look so very like real proprietary rights, so like
ownership, so that we can habitually speak and think of him
as the owner of lands and goods ? Part of the answer has
already been given. As regards (if I may be allowed the
phrase) their internal character these equitable rights are
treated as analogous to legal rights in lands or goods — I
mean as regards duration, transmission, alienation. But the
whole answer has not yet been given. We are examining the
external side of these rights, asking against whom they are
good, and we shall find that even when examined from this
point of view they are like, misleadingly like,y//r^ in rem.
In this development we may trace several logical stages: —
(i) The first is reached when the cestui que trust has a
remedy against the person who has undertaken to hold land
or goods on trust for him.
(ii) A second step is easy. The use or trust can be
enforced against those who come to the land or goods by
inheritance or succession from the original trustee, against his
heir, his executors or administrators, against the trustee's
doweress. Such persons may be regarded as sustaining
wholly or partially the persona of the original trustee and
being bound by his obligations as regards the proprietary
rights to which they have succeeded.
(iii) A third step is to enforce the trust against the
trustee's creditors — e.g. against the trustee's creditor who has
taken the land by elegit. There seems to have been a good
deal of difiiculty about this step — more than we might have
supposed — and it was not taken finally until after the Restora-
tion in 1660. Just at the same time the Court of Chancery
was beginning to insist that the cestui que trust's creditors
could attack his equitable rights. However it became well
established that these rights were good against the creditors
of the trustee \
(iv) What shall we say of the trustee's donee, of one to
whom the trustee has given the thing without valuable con-
sideration ? He has not entered into any contract with cestui
que trust or into anything at all like a contract ; he may be
^ See e.g. Finch v. Farl of Wmchibeay i P. Wnis. 277.
1 1 8 Lectures on Equity Leg r.
utterly ignorant of the trust. Nevertheless this step was
taken, and as it seems at an early period. The right of cestui
que trust was enforced against any person who came to the
thing through or under the trustee as a volunteer — i.e. without
valuable consideration, even though he had no notice of the
trust. We see the cestui que trust's right beginning to look
' real.'
(v) A fifth step was taken and this also at an early time.
The trust was enforced even against one who purchased the
thing from the trustee, if he at the time of the conveyance
knew of the trust. What is the ground for this } The old
books are clear about it, the ground is fraud or something
akin to fraud. It is unconscientious — 'against conscience' —
to buy what you know to be held on trust for another. The
purchaser in such a case is, we may well say, liable ex delicto
vel quasi. He has done what is wrong ; has been guilty of
fraud, or something very like fraud.
(vi) Having taken this step, another is inevitable. If we
stop here purchasers will take care not to know of the trust.
To use a phrase used in the old reports, they will shut their
eyes. The trust must be enforced against those who would
have known of the trust had they behaved as prudent pur-
chasers behave. Thus, to use the term which Holmes has
made familiar*, an objective standard is set up, a standard of
diligence. It is not enough that you should be honest, it is
required of you that you should also be diligent. To describe
this standard will be my object in another lecture. Here it
must be enough that it was and is a high standard — the
conduct of a prudent purchaser according to the estimate of
equity judges. If a purchaser failed to attain this standard,
to make all such investigations of his vendor's title as a
prudent purchaser would have made, he was treated as having
notice, he was ' affected with notice,' of all equitable rights of
which he would have had knowledge had he made such
investigations : of such rights he had ' implied notice,' or
' constructive notice.' We arrive then at this result, equitable
rights will hold good even against one who has come to the
legal ownership by purchase for value, if when he obtained
^ The Common Lazv, passim.
IX Limit of the Equitable Right 119
the legal ownership he had notice express or constructive of
those rights.
But here a limit was reached. Against a person who
acquires a legal right bona fide, for value, without notice
express or constructive of the existence of equitable rights
those rights are of no avail. I will read one passage in which
James L.J. stated this in forcible terms. In the case of
Pilcher v. Ratvlins, L.R. 7 Ch. 259, at page 268, he said this :
' I propose simply to apply myself to the case of a purchaser
for valuable consideration, without notice, obtaining, upon the
occasion of his purchase, and by means of his purchase deed,
some legal estate, some legal right, some legal advantage;
and according to my view of the established law of this Court,
such a purchaser's plea of a purchase for valuable considera-
tion without notice is an absolute, unqualified, unanswerable
defence, and an unanswerable plea to the jurisdiction of this
Court. Such a purchaser may be interrogated and tested to
any extent as to the valuable consideration which he has
given in order to show the bona fides or mala fides of his
purchase, and also the presence or the absence of notice ; but
when once he has gone through that ordeal, and has satisfied
the terms of the plea of purchase for valuable consideration
without notice, then this Court has no jurisdiction whatever to
do anything more than to let him depart in possession of that
legal estate, that legal right, that legal advantage which he
has obtained. In such a case the purchaser is entitled to
hold that which, without breach of duty, he has had conveyed
to him.'
How could it be otherwise? A purchaser in good faith
has obtained a legal right. In a court of law that right is
his : the law of the land gives it him. On what ground of
equity are you going to take it from him > He has not himself
undertaken any obligation, he has not succeeded by voluntary
(gratuitous) title to any obligation, he has done no wrong, he
has acted honestly and with diligence. Equity cannot touch
him, because, to use the old phrase, his conscience is unaffected
by the trust.
The result to which we have attained might then, as it
would seem, be stated in one of two alternative ways.
I20 Lectures on Equity Lect.
(l) CcstJii que trust has rights enforceable against any
person who has undertaken the trust, against all who claim
through or under him as volunteers (heirs, devisees, personal
representatives, donees) against his creditors, and against those
who acquire the thing with notice actual or constructive of the
trust.
Or (2) Cestui que trust has rights enforceable against all
save a bona fide purchaser ('purchaser' in this context always
includes mortgagee) who for value has obtained a legal right in
the thing without notice of the trust express or constructive.
Of these two statements the second form is now the more
popular, but I should prefer the first — I should prefer an
enumeration of the persons against whom the equitable rights
are good to a general statement that they are good against
all, followed by an exception of persons who obtain legal
rights bona fide, for value and without notice. A statement
in the former form is I think preferable because it puts us at
what is historically the right point of view — the benefit of an
obligation has been so treated that it has come to look rather
like a true proprietary right — and it might still be rash to say
positively that purchasers without notice are the only owners
against whom the equitable rights are invalid. It is extremely
probable that until 1834, until the statute 4 and 5 Will. IV,
c. 23, equitable rights could not be enforced against a lord
coming to the land by way of escheat upon the death of the
trustee\ This curious little point is very instructive. A
trustee in fee simple died intestate and without an heir ; the
legal estate escheated to the lord. What equity was there
against the lord .'' He did not claim through or under the
trustee, and his conscience was not affected by the trust. The
point is now unimportant, because the Act just mentioned,
now replaced by later Acts, provides for the continuance of
the trust even though there is an escheat of the legal estate.
We have already seen a statutory alteration of the converse rule
which declared that of an equitable estate there was no escheat.
So late as the time of Coke a corporation was not bound
by a trust (and to this day it is said that a corporation cannot
take to the use of another).
^ See Challis, Law of Real Property, 2nd edition, p. 36,
IX Disseisor and Adverse Possessor 121
And there were others against whom the trust could not
be enforced; it could not be enforced against one who claimed
the thing by title adverse to the title of the trustee. Land,
let us say, was given to T upon trust for E, but P was in
possession asserting a different title, asserting, let us say, that
the creator of the trust was not owner of the land ; E could
not sue P in Chancery and enforce the trust against him ; T
had to recover the land at law before the trust could be
carried out ; E's right was not a right to obtain the land from
P; but if T would not bring an action against P, then E could
proceed in Chancery to compel T to assert his (T's) legal
right, or he might obtain permission to bring the action in T's
name. In other words, as Lewin says {Trusts, nth ed. 275),
' a disseisor is not an assign of the trustee either in the per or
post, for he does not claim through or under the trustee, but
holds by a wrongful title of his own.' Since the Judicature
Acts we cannot have that circuitous procedure by which E
went to Equity in order to compel T to enforce rights at law;
but still the principle of course holds good, if the land is to be
recovered from P who is in no wise bound by the trust, it
must be proved that T has a superior title.
The case of In re Nisbet and Potts' Contract, 1906, i
Ch. 386, decides for the first time that the Court of Chancery
will enforce an equitable right against a disseisor — against a
squatter — who has acquired title by lapse of time. But this
is a case which we shall have to consider later on^
Sir Frederick Pollock says, and as I think with justice,
' The true way to understand the nature and incidents of
equitable ownership is to start with the notion not of a real
ownership which is protected only in a court of equity, but of
a contract with the legal owner which (in the case of trusts
properly so called) cannot be enforced at all, or (in the case
of constructive trusts, such as that which arises on a contract
for the sale of land) cannot be enforced completely except in
a court of equity^.'
^ See infra, p. 169.
2 Principles of Contract, 7th edition, p. 209.
LECTURE X.
THE NATURE OF EQUITABLE ESTATES
AND INTERESTS, (ii.)
Equitable estates and interests are rights in personam
but they have a misleading resemblance to rights in rem.
This resemblance has been brought about in the following
way. The trust will be enforced not only against the trustee
who has accepted it and his representatives and volunteers
claiming through or under him, but also against persons who
acquire legal rights through or under him with knowledge of
the trust — nor is that all, it will be enforced against persons
who acquire legal rights through or under him if they ought
to have known of the trust. The Court of Chancery set up a
standard of diligence for purchasers and a high one, one so
high that it certainly is difficult for a purchaser to buy land
without obtaining constructive notice of all trusts which
concern that land. Still now and again the difficulty is
surmounted, and then the true character of equitable rights
becomes apparent — a purchaser acquires a legal right bona
fide, for value, and without notice either actual or constructive
of the trust, and he holds the land successfully against cestui
que trust, and cestiii que trust may then comfort himself with
the reflection that the land never was his.
The defence of ' legal estate by bona fide purchase for
value without notice' is not, you should understand, a merely
personal defence flowing from the moral merits of the
purchaser and competent only to him ; it is competent to all
who claim through or under him even though they have
notice of the equitable rights. Thus T holds land in trust
for A ; T sells and conveys to X who purchases and obtains
the legal estate bona fide for value and without notice ; X
then sells the land to Y, and Y when he takes the conveyance
has notice of the trust. None the less Y is protected against
Lect. X Need to investigate Title 123
the trust and may ignore it. The rule is put thus *A pur-
chaser with notice from a purchaser without notice is exempt
from the trust, not from the merits of the second purchaser
but of the first ; for if an innocent purchaser were prevented
from disposing of the' land 'the necessary result would be a
stagnation of property^' that is to say we decide that X is
legal owner, that there is no equity against him, that he is
owner at law and in equity ; it follows that he may convey his
rights to another, otherwise A by an advertisement in the
Times might deprive X, a legal and equitable owner, of that
power of selling that is incidental to ownership. If by any
chance the land comes back to T, the trustee, then A's rights
in the land (if we are to call them rights in the land) revive
— T is holding the subject-matter of the trust, and is bound
to hold it upon the trust — sed quaere de hoc-.
I have said that the standard of diligence required of
purchasers is high, so high that a purchaser without notice of
equitable rights is not a very common object of the law
courts.
How was this standard fixed? The starting point is
here : — Quite apart from any doctrine of equity, a prudent
purchaser (or mortgagee) of land will investigate his vendor's
(or mortgagor's) title. Further a vendor of land who contracts
to sell it, contracts to show a good title. This is a legal con-
tract enforceable at law by an action for damages ^ If the
vendor fail in his part of the contract, the purchaser is not
bound to fulfil his part. Rules were evolved as to what title
must be shown. For instance as to length of title, it became
settled that, in the absence of any bargain to the contrary, the
vendor had to show a 60 years title. The origin of this rule
may perhaps be found in the Statute of Limitation, 32
Hen. VIII, which limited 60 years as the time within which a
writ of right must be brought. The rule was altered by the
Vendor and Purchaser Act, 1874, which substituted 40 years
1 Lewin, nth edition, p. 1077.
"^ Quaere, e.g., if T gets back the land only as trustee under some new trust,
or as executor of such a trustee.
* But remember that these damages are narrowly limited, Bain v. Fothergill,
L. R. 7H. ofL. 158(1874).
124 Lectures on Equity Lect.
for 60 as the time for which good title must be shown. That
Act and the Conveyancing Act of 1881 made other changes
tending to absolve the vendor who sells without special
stipulations from many of the heavy obligations to which
the common law subjected him — they were heavy ; indeed to
sell land without special conditions as to title, and evidence of
title, was an act of extreme rashness. But our present point
must be to notice that if there had never been any such thing
as equity a prudent purchaser would have investigated his
vendor's title — he would have done so in order to see that the
vendor had an estate to sell, that there were no legal charges
on the land, no legal rent-charges for example, for against
such legal rights it would be no defence to say * I purchased
in good faith.' Now equity required of purchasers that they
should make that investigation of title which a prudent
purchaser would have made and which a purchaser on an
open contract {i.e a contract without special terms) would
have been entitled to make. The purchaser was deemed to
have notice of all equitable rights the existence of which he
would have discovered if he had made such an investigation.
The standard was high. According to the view taken by
equity judges the prudent purchaser of land was one who
employed a solicitor — and certainly this view was defensible.
In the days of fines and recoveries a prudent purchaser would
in his own interest have employed a highly trained adviser,
and, even with all our modern reforms, the average man could
not yet be counselled to carry through a purchase without
legal aid. But in reading some of the cases about constructive
notice we may be inclined to say that equity demanded not
the care of the most prudent father of a family but the care
of the most prudent solicitor of a family aided by the skill of
the most expert conveyancer.
For some years past indeed there has been a noticeable
inclination against extending and even towards contracting
the range of constructive notice, and in 1882 Parliament
attempted to define the doctrine.
The Conveyancing Act of 1882, sec. 3, said this: — 'A
purchaser shall not be prejudicially affected by notice of any
instrument fact or thing unless —
X Notice and the Conveyancing Act, 1882 125
(i) It is within his own knowledge or would have
come to his knowledge if such inquiries and inspections
had been made as ought reasonably to have been made by
him ; or
(ii) In the same transaction with respect to which a
question of notice to the purchaser arises it has come to the
knowledge of his counsel as such, or of his solicitor or other
agent as such, or would have come to the knowledge of his
solicitor or other agent as such, if such inquiries and inspec-
tions had been made as ought reasonably to have been made
by the solicitor or other agent'
How far this altered the existing rules of equity remains
to be seen. Probably it altered them in one respect of which
a word may be said in passing. Of course equity held that
as a general rule notice, constructive notice, to the purchaser's
agent was notice to the purchaser. Of course, on the other
hand, it could not go so far as to say that if a solicitor acting
in one transaction gained notice of a fact, every client of his
in every other transaction would be affected by notice of that
fact : to have so held would have been to say in effect that
no one can safely employ a solicitor or counsel in large
practice, for he will have had notice of thousands of equities.
But there was a small group of cases in which it had been
said that the transactions might be so closely connected that
notice gained by the agent in one of them might be ascribed
to the principal in the other of them. Now the section before
us seems definitely to strike at this particular doctrine. If
notice to the agent is to be notice to the principal it must
have been acquired actually or constructively in the same
transaction. Having regard to the previously existing rules
we must I believe regard as emphatic those words 'in the
same transaction.' But, to pass from this comparatively small
point, it will be seen that our legislators have not told us
very much — they refer to such inquiries and inspections as
'ought reasonably' to have been made. In so doing the
statute seems but to state the pre-existing law. I do not
think that any equity judge would have acknowledged that
he required of a purchaser more than was reasonable. Per-
haps, however, the section may serve as an excuse for rejecting
126 Lectures on Equity Lect.
some of the more extreme applications of the doctrine. As
already said constructive notice has been little favoured of late.
In the case of Bailey v. Barnes, 1894, i Ch. 25 it was
said by Lord Justice Lindley (at page 35) ' The Conveyancing
Act, 1882, really does no more than state the law as it was
before, but its negative form shows that a restriction rather
than extension of the doctrine of notice was intended by the
Legislature.'
'"Ought" here does not import a duty or obligation ; for
a purchaser need make no inquiry. The expression " ought
reasonably" must mean ought as a matter of prudence, having
regard to what is usually done by men of business under
similar circumstances.*
This was approved by the Court of Appeal in the case
of Taylor v. London and County Banking Company, 190 1,
2 Ch. 231 (see at page 258); and at page 259 Lord Justice
Stirling, with reference to this doctrine, said ' the Convey-
ancing Act, 1882, has introduced very considerable modifica-
tions, to which the Court is now bound to give effect'
You should understand that this doctrine of constructive
notice had given rise to a number of sub-rules of a more or
less positive kind, which were generally expressed in the form
'Notice oi X is notice of j.' In a court of equity there was
no jury — to whom the question of what is reasonable could be
left as a question of fact. Thus every decision that A was
or was not ' fixed ' with notice of a trust tended to generate
or define a rule, and could be regarded as a precedent. By
way of illustration I may refer to Lloyd's Banking Co. v. Jones,
29 Ch. D. 221 (1885). It was so much the practice for
every woman who had property to have that property settled
on the occasion of her marriage, that there was some ground
for a contention that if a purchaser found that the property of
a married woman had been dealt with as though there had
been no settlement, he was bound to inquire whether there
had not been a settlement — in other words that notice of a
woman's marriage would be notice of a settlement. In the
case just cited counsel, not without some show of authority,
tried to convince Pearson J. that this was so ; but he refused
to be convinced. '1 am not aware,' he said, 'of any pre-
X Possession, how far Notice of Equities 127
sumption of law that when a woman marries she will settle
her leasehold property.'
As another illustration take Hiint v. Luck, 1902, i Ch. 428,
decided by Farwell J. and affirmed by the Court of Appeal,
where it was held that the occupation of land by a tenant
affects a purchaser of the land with notice of all that tenant's
rights, but not. of his lessor's title or rights.
As to a tenant's legal rights — e.g. in a legal term of years
— absence of notice is not to the point, they stand indepen-
dently of notice ; but as to the tenant's equitable rights —
e.g. under an agreement for a lease, not giving the legal term
of years — here notice is all-important, and the fact that a
tenant is in occupation is constructive notice of all the
equitable rights that he has.
The case o{ Hunt v. Luck was an attempt to extend this,
and to say that such occupation gives constructive notice
of the rights of that tenant's lessor. The facts were these.
X is buying land from A ; M is in possession ; M pays rent
to a house agent, who pays over the rent to B in a manner
inconsistent with A's title. It was held that the occupation
by M does not give X constructive notice of B's equitable
rights. Thus we get to a rule — Occupation by a tenant is
constructive notice of all the tenant's equitable rights, but is
not constructive notice of the rights of some other person to
whom the tenant pays rent. The purchaser was not bound
to follow up the trail through the house agent though thereby
he might have come upon a fraud perpetrated by his vendor.
But if he had in fact learnt that the rent was being paid to
someone whose receipt was inconsistent with the title of his
vendor then that would be notice to him of that person's
rights.
By a curious convention it is clearly settled that the fact
that people are lending money jointly is not notice that they
are trustees. In fact it is pretty certain that they will prove
to be so.
If I agree to accept a shorter title than 40 years I still get
notice of what I should have discovered if I had fully in-
vestigated the 40 years title. The imaginary reasonable man
never takes less than a 40 years title. So in the case of
128 Lectures on Equity Lect.
Patman v. Harland, 17 Ch. D. 353, it was held that a lessee
got notice of what was discoverable if the lessor's title was
investigated (and having constructive notice of a deed had
constructive notice of the contents of it). This remains so
even though since the Vendor and Purchaser Act, 1874, the
lessee can not, on an open contract, ask for the lessor's title.
He is treated as if he had before the Act stipulated not to
inquire into his lessor's titled
There is danger in making unnecessary inquiries as is
shown by the case o{ Jaredw. Clements, 1903, i Ch. 428.
Though a large number of sub-rules have been thus
established, rules which constitute a great part of the learning
of conveyancers, still from time to time we see that they are
but applications of a general rule, a rule which is now ex-
pressed in the Statute Book. We can see also from time to
time that the historical basis of the whole elaborate structure
is the prevention of fraud. A good illustration of this is given
by Kettleiuellw. Watson, 21 Ch. D. 685 (1882). In that case
there was a question whether a purchaser had acquired con-
structive notice of an equitable right. The purchaser had
indeed done very little. He employed no solicitor of his own,
but allowed the vendor's solicitor to prepare his conveyance ;
he made no inquiry about the title or the deeds. But he
purchased a very small plot, and his whole purchase money
was but ;^42. Now if these rules about constructive notice
were rules of property law, these last facts, the small extent
of land, the small amount of the price, could hardly be of
importance. But Fry J. (p. 708) treated them as of the
greatest importance. The purchaser had done all that could
reasonably be required of him considering what he was buy-
ing, ' the costs of an investigation of title would have been so
onerous as no doubt to have made the purchase impossible.'
In the same case we find the judge going back to an old
classical case of Le Neve v. Le Neve (i Amb. 436) decided by
Lord Hardwicke — ' Consider,' said Hardwicke, ' what is the
ground of all this.... The ground is plainly this: — that the
1 This is the accepted opinion, although it seems difficult to reconcile such a
rule with the express words of section 3 (i) of the Conveyancing Act, 1882 (ante,
p. 125). Edd.
X Notice and the Old Registry Acts 129
taking of a legal estate after notice of a prior right makes a
person a mala fide purchaser.... This is a species of fraud and
dolus makes itself; for he knew that the first purchaser had
the clear right of the estate, and after knowing it he takes
away the right of another person by getting the legal estate....'
Fraud or mala fides is the true 'ground on which the Court is
governed in the cases of notice.' And then Fry J. speaks of
'that wilful shutting of the eyes' which is treated as equivalent
to fraud and he absolves the purchaser of this, in consideration
of the smallness of the transaction. Now to a true proprietary
right we never hear the defence ' Is it not a little one .-''
The case of Battison v. Hobson, 1896, 2 Ch. 403, is an
illustration of the length to which the doctrine of notice was
formerly carried ; it was allowed practically to deprive of value
the old Registry Acts for Middlesex and Yorkshire. A person
who knows or ought to know of a prior charge shall not get
priority over that charge by registration. Therefore he may
be put to inquiry of what is not on the Register. The
Yorkshire Registries Act of 1884, however, expressly declares
that priority given to registered assurances by the Act shall
have full effect except in cases of actual fraud. A strenuous
attempt was made to induce the Court to hold that the Act
had not altered the previous law but it was unsuccessful.
Stirling J. said, at page 412 of the report, '"Actual fraud"
I understand to mean fraud in the ordinary popular accepta-
tion of the term, i.e. fraud carrying with it grave moral
blame.' He held that it would be fraudulent for a solicitor
to insist on priority over his client whose interest he was
bound to protect, but that it would be otherwise if there were
no fiduciary relationship between the two claimants.
Let us now see this difference between legal and equitable
rights in its practical operation. We will put two cases which
in the eyes of the moralist may seem closely similar but
between which the lawyer will see a vast difiference. (i) A is
tenant in fee, B is occupying his land as his tenant at will ; B
forges a complete set of title deeds showing that he is tenant
in fee ; he sells the land to X ; X diligently investigates the
title, finds nothing suspicious ; pays his purchase money and
takes a conveyance. (2) T is tenant in fee holding land in
M. E. Q
1 30 Lectures on Equity Lect.
trust for S ; T forges title deeds concealing the trust and
showing him to be simply tenant in fee subject to no equitable
liability ; he sells to Y, who investigates the title; the forgery
is clever and it deceives him, he pays his money and takes
a conveyance. The two cases may be like enough to the
moralist, but how different to the lawyer. In the first A is
legal owner of the land and X has had the misfortune to buy
from one who had nothing to sell, to take a conveyance from
one who had nothing to convey. In the other case the
purchaser is the legal owner of the land, and having come to
legal ownership bona fide for value and without notice, actual
or constructive, of S's rights, S has no equity against him ;
S's only remedy is against the fraudulent trustee.
Observe now that this is the effect of the legal estate.
Suppose that in the second of the two cases, after the
fraudulent trustee has contracted to sell, the ces/ui que trust
hears of this and informs the purchaser of it before the pur-
chaser, gets the legal estate. Now the case is very different
even if the purchase money has been paid. Neither purchaser
r\or cestui que trust hdiS legal ownership; the cestui que trust's
ricrht is merely equitable, the purchaser's right in the land is
merely equitable; the cestui que trusfs right is the older right
and it prevails. As between merely equitable interests in
land the rule is ' qui prior est tempore potior est Jure ^ — the
older equity is the better. But let the purchaser get the legal
estate without notice, there is no place. for this maxim. The
rights concerned are, if I may so speak, rights of different
orders ; the purchaser is legal owner and the cestui que trust
has no means of attacking him. One would hardly have
guessed this from Austin's talk about a contract to sell land
passing d^jus in rem.
We have now come upon the main clues to the com-
plicated labyrinth of cases about 'priorities.' It happens with
unfortunate frequency that a man having title to land con-
trives by means of fraudulent concealment to get money from
a number of different persons on the security of the land —
then disappears^ — and the lenders are left to dispute among
themselves as to the order in which they are to be paid out
of the value of land which is insufficient to pay all of them.
X Priorities
131
In such cases these two rules have to be held in mind.
First : — As between merely equitable rights the oldest pre-
vails. Secondly: — No merely equitable right can be enforced
against one who has acquired a legal right bo7ia fide, for
value, and without notice. And if these two rules be remem-
bered the cases will become intelligible. If on the other hand
we begin thinking of equitable interests as rights in land —
proprietary rights — much will be unintelligible.
A neat case is Cave v. Cave, 15 Ch. D. 639. It comes to
this : — T is a trustee of money for A ; in breach of trust he
purchases land with it and has it conveyed to himself.
Stopping there, A has an equitable interest in that land, T
is a trustee for him, and A could enforce his right against a
purchaser from T who had notice of that right. But T
mortgages to X who has no notice (in this case it is easy for
him to have no notice) of A's right and the mortgage is a
legal mortgage. Then T mortgages to Y who also has no
notice of A's right ; but the mortgage to Y can only be an
equitable mortgage, for X has got the legal estate. Now in
what order shall we place A, X, Y? In this order — X, A, Y.
We place X first ; he has the legal estate and got it for value
and without notice. A cannot attack him. As between A
and Y order of time settles order of right, for they have both
but equitable interests.
These two are not the only rules. There are some others ;
for a man may lose the priority that he has got. I may
illustrate this by a problem set in the Law Tripos.
A lends money to B, a solicitor, on security of a legal
mortgage of freeholds and with the mortgage receives pos-
session of the title deeds. A subsequently lends the title
deeds to B on a fraudulent representation by him that he
desires to prepare an abstract of title and conditions of sale
in order to sell and pay off the debt. B then borrows a
further sum from C depositing the deeds with him as security
— and soon after absconds. The property will only suffice to
pay A or C. Is A's security postponed to C's .-' What is the
rule as to loss of priority .'' Would A's position be diffeient if
his mortgage had been an equitable one merely?
Now why should A's security, whetiier it be legal or merely
9—2
132 Lectures on Equity Lect.
equitable, be postponed to C's ? The suggestion of course is
that A has been guilty of some negligence or imprudence in
allowing B to get the title deeds, that he enabled B to commit
a fraud, that he ought therefore to be postponed to C. There
have been many cases about this matter. It has often been
before the Courts of late and a strong line has been drawn
between the conduct which will deprive a legal charge of its
priority, and that which will deprive a merely equitable charge
of its priority.
To return to the case taken from the examination paper.
It seems quite certain that the legal mortgagee will not lose
priority by mere negligence — but he will lose it by partici-
pating in fraud. Gross negligence may be evidence of fraud.
It seems probable that the equitable mortgagee may lose
priority by negligence. The old cases were this way ; the
opposite was held by Kay J. in Taylor v. Russell, but great
doubt was thrown on this by the opinions of the law lords
when that case came before them (1892, A.C. 244).
In our case there seems nothing to show that there was
participation in fraud. Within the dicta the representation
was a reasonable one, i.e. we can hold that a reasonable man
might believe it. Therefore if the mortgage to the solicitor
were legal we don't postpone, for we don't infer fraud. The
reasonableness of the representation — i.e. its believableness —
here comes in to negative fraud.
But suppose the mortgage equitable. Can we acquit the
mortgagee of negligence .-* Senible que non. He ought not, I
think (as a matter of prudence), to let deeds get into the
mortgagor's hands on any pretence — even though the pretext
is such as a man might well believe to be true. I think a
court would say so. He may very properly believe what the
mortgagor says. If so he will employ a solicitor who will
supply the mortgagor with an abstract or copies and will at
the proper time produce the originals to a purchaser — but a
prudent mortgagee does not let deeds get into the hands of
the mortgagor. We cannot say that a suspicion of fraud
ought to have been aroused, but we can say that it is careless
to part with the deeds.
As regards the postponement of a legal charge, Northern
X Postponement of Legal Mortgages 133
etc. Fire Insurance Co. v. Whipp (1884), 26 Ch. D. 482 is the
most important modern case. It was there laid down that
the Court will not postpone a legal mortgage to an equitable
mortgage on the ground of any mere carelessness or want of
prudence on the part of the legal mortgagee^ It will however
postpone a legal to an equitable mortgage on the ground of
fraud — it will do so (i) where the legal mortgagee has assisted
in or connived at the fraud which led to the creation of the
subsequent equitable estate, of which assistance or connivance
the omission to use ordinary care in inquiring after or keeping
the title deeds may be sufficient evidence where such con-
duct can not be otherwise explained ; or (2) when the legal
mortgagee has made the mortgagor his agent with authority
to raise money and the security given for raising such money
has by misconduct of the agent been represented as the first
estate. In the case before us A, however careless he may
have been, cannot I think be charged with conniving at a
fraud. In the case just cited the Court of Appeal said
that ' where the title deeds have been lent by the legal
mortgagee to the mortgagor upon a reasonable representation
made by him as to the object in borrowing them, the legal
mortgagee has retained his priority over the subsequent
equities^' I think that the representation made by B in this
case was within this language a reasonable representation,
that is to say, a representation that a reasonable man might
believe, namely that he wanted the deeds in order that he
might sell the estate and pay off the mortgage.
But as to the postponement of merely equitable charges it
is otherwise. Negligence is sufficient for this purpose-'. This
has been laid down by the Court of Appeal several times
within recent years. National Provincial Bank v. Jackson,
33 Ch. D. I, Union Bank of London v. Kent, 39 Ch. D. 238,
Farrand v. Yorkshire Banking Co., 40 Ch. D. 182. In this
case before us, and according to the authorities, I think that
there was quite enough negligence to postpone A to C, had
A's right been merely equitable.
1 But see and compare Olivers. Hinton, 1899, 2 Ch. 264, Lloyd's Bank v.
Jones, 29 Ch. D. 221, and Walker v. Linoin, 1907, ^ Ch. 104-
^ 26 Ch. D at p. 492. ^ Sec infra, p. 140.
134 Lectures on Equity Lect.
Here then again we get a distinction between legal and
equitable rights, and this is quite intelligible, tor legal estates
are proprietary rights, ownership or fractions of ownership,
equitable rights are not. Negligence will not deprive one of
ownership^ It is excessively negligent for one to leave one's
purse on the counter of a shop, but one shall not for that
reason lose ownership. Fraud or connivance at fraud is a
different matter. But as between merely equitable claimants,
the court can consider the moral merits of the parties— ^'/^z
prior est tempore potior est jure is a natural rule where merits
are equal, but negligence may be a ground for postponing an
older to a younger equity.
But the Court of Chancery's respect for legal right may
best be seen in the rules relating to the tacking of mortgages.
A mortgages land first by legal mortgage to X, and then by
equitable mortgage to Y ; X now without notice of Y's right
makes a further loan to A upon the security of his mortgage.
X can get repayment of both his loans in priority to Y. That
is one of the examples of tacking; but it is by no means an
extreme one. A mortgages legally to X, then equitably to
Y, then equitably to Z ; Z when he made the loan had no
notice of Y's right. Now if Z pays off and takes a transfer of
X's mortgage he can get repayment not merely of the amount
due on X's first mortgage, but also of the amount due on Z's
third mortgage in priority to Y ; he can, as is sometimes said,
* squeeze out the second mortgagee,' and he can do this even
though in the interval he has obtained notice of Y's right.
That is the strange part of the doctrine, he obtains priority for
his own equitable charge by obtaining the legal estate after
he has obtained notice of Y's equitable charge which had
priority over his. Now one might have thought that equity
would have shown its respect for legal rights sufficiently if it
held that the person who took a legal estate without notice of
an equitable right was protected against that right, and that
no advantage should have been attainable by taking a convey-
^ See e.g. Farquharson Brol/wrs v. K'ing, 1902, A.C 325, and the authorities-
cited by Lord Macnaghten at pp. 336 and 337. ' If a person leaves a watch or
a ring on a seat in the park or on a table at a cafe it is no answer to the true
owner' (suing a bona fide purchaser) 'to say that it was his carelessness and
nothing else that enabled the finder to pass it off as his own.'
X The Docti'ine of Tacking 135
ance of a legal right with notice of an equitable right. And
indeed if Courts of Equity could begin again perhaps they
would not carry the doctrine to this extreme. But the view
taken seems to be that suggested by the phrase, tabula in
iiaufragio, applied in some of these cases to the legal estate.
Y and Z are both equally honest men, one of them must lose his
money — here is a shipwreck — he who can lawfully come by a
legal plank may save himself; the fact that Y's equitable right
is older than Z's is not a sufficient reason for depriving Z of
what he has obtained by his own diligence and the law of the
land, namely, a true proprietary right.
This doctrine of tacking has fallen out of favour. An
attempt was made to abolish it by section 7 of the Vendor and
Purchaser Act, 1874, but the section which made the attempt
was repealed in the next year by 38 and 39 Vic, c. 87, sec. 39.
Modern cases have put some restraints on the doctrine, which
at one time seemed to go to the great length of saying that
the third mortgagee — always supposing that when he made
his advance he had no notice of the second mortgage — might
obtain priority over the second mortgagee by obtaining the
legal estate in any fashion ; but now it is held that if the
holder of the legal estate is bound by a trust in favour of the
second mortgagee, and the third knows this, the third can get
no priority by means of a conveyance of that legal estate,
which conveyance would be a breach of trusts However the
doctrine just stated about the three mortgages holds good.
I quote it here as one extreme example of the respect paid by
equity to the legal estate. It warns us forcibly that legal
estates and equitable estates are not rights of one and the same
order ; they belong to different orders ; the one is a right in
rem, the other the outcome of an obligation, a trust, and of the
rule that trusts can be enforced against those who when they
obtain ownership know or ought to know of those trusts.
The case of Taylor v. Russell, 1892, A.C, 244, is an excel-
lent illustration. The facts, slightly simplified, were these: —
M, tenant in fee simple, gives a legal mortgage to N in fee
simple : this includes, among other lands, Blackacre. But
^ nicher V. Rawlins, L. R. 7 Ch. Ap. 268. Harphain v. Shacklock, ly Ch.
D. 207.
136 Lectures on Equity Lect.
the parties seem not to have known that Blackacre was in-
cluded in the mortgage, and the title deeds of Blackacre
remained with M. Then M sold Blackacre to F and conveyed
it to him in fee, nothing being said of the mortgage. F thus
obtained the equitable fee simple in Blackacre. F determines
to commit a fraud by mortgaging Blackacre twice over, to A
and to X, representing to each that he gets a first mortgage.
He forges title deeds by which one P conveyed Blackacre to
him. This deed he produces to A's solicitor, who made no
further inquiry, being satisfied that F had bought from P. A
advanced his money and took a mortgage. Then F produced
the true title deeds to X and got another advance, X taking
a mortgage, and knowing nothing (and having no notice) of
A's rights. Neither X nor A knew an\thing of N's legal
mortgage. F vanishes, and Blackacre will not pay both A
and X.
Stopping here we find that A and X both have merely
equitable mortgages ; A's is first in point of time, and will
prevail unless we hold that A has been so careless in not
investigating the forgery that he ought to be postponed to X.
Kay J. who tried the action, thought that there had not been
such negligence as would serve to postpone A to X. But
owing to what happened it became unnecessary to decide this
question. What happened was this: — X heard of N's legal
mortgage, represented to N that he, N, did not require the
security of Blackacre since the other lands were sufficient to
secure the debt owed by M to N and asked N to let him, X,
have the legal estate in Blackacre. N, who does not seem to
have known until now that Blackacre was included in his
mortgage, consented to give up his right in it, so he reconveyed
Blackacre to M in order that M might convey it to X, and M
did convey it to X. Before this transaction was completed
M, N and X knew of A's rights. X then had got the legal
estate. Did this give him priority over A? Held by the
Court of Appeal and by the House of Lords that it did — albeit
he got it without giving value for it, and although when he
got it he knew of A's rights. It is impossible to explain such
a case unless we remember that legal and equitable rights are
risrhts of different orders.
X Bailey v. Barnes 13-7
You should read also the case of Bailey v. Barnes, 1894,
I Ch. 25, The case, a little simplified, was this: —
Johnson, tenant in fee simple, mortgages land to Bristowe
and Robins for iJ^6ooo.
Next a judgment is recovered against Johnson by the
plaintiff Bailey, who obtains an order for a receiver by way of
equitable execution against Johnson's equity of redemption :
in other words Bailey now acquires an equitable charge.
The mortgagees took possession. On the 21st of December,
1889, they transferred the mortgages to Barnes in considera-
tion of some ;^6300, the amount of principal and interest.
On the 23rd of December, 1889, Barnes purporting to
exercise the mortgagee's power of sale conveyed to Hannah
Midgley, for the exact sum which he had paid, free from
the equity of redemption. The apparent inference is that the
equity of redemption was worth nothing. In fact Barnes was
a mere nominee of Midgley and there had been no real exer-
cise of the power of sale.
On the 4th of March, 1890 (3 months afterwards) Midgley
mortgaged to X for ^6000.
On the 29th of July, 1890, Midgley being dead, her exe-
cutor agreed to sell the equity of redemption to Lilley for
^^2500, and on the 13th of August he conveyed it to Lilley
for that sum. (Ought not Lilley to have said to himself ' I
am treating as worth ,1^8800 odd what three months ago a
mortgagee sold for ;^6300, can that sale have been an honest
transaction, were not Midgley and Barnes colluding to deprive
Johnson of an equity of redemption which was not valueless.'*'
However, the suspicions of his solicitors were not aroused,
and this even though they saw a valuation at ^^8700, which
had been made in January, 1890.)
On the 15th of August the plaintiff Bailey begins proceed-
ings to set aside the sale by Barnes to Midgley. Stirling J.
sets aside the sale. Then at this late hour, Lilley, knowing
that the sale was invalid, paid off the .^6000 mortgage and
took a conveyance of the legal estate.
Two questions arose: (i) Had he notice of the fraud or
impropriety at the time of his purchase of the equity of
redemption "i (2) If not, can he at this very late moment
138 Lectures on Equity Lect.
save himself by means of the legal estate ? It was held by
Stirling J., and by the Court of Appeal, that the answer to
the first question was No, and to the second question Yes.
Let us take the case of Taylor v. London and County Bank,
1901, 2 Ch. 231. It is a very instructive case, and so let us
read the whole story in the head note to the report in the Law
Reports. That head note, as you see, covers more than two
pages, but the bare facts are these :
In 1882 one T, a solicitor, took with his own money a
mortgage by sub-demise of certain leaseholds.
In 1889, being then a trustee of the B settlement, he
received and, without the knowledge of his co-trustee, fraudu-
lently appropriated a sum of money belonging to that settle-
ment, and by entries in his books purported to appropriate his
own mortgage debt to make it good but he never communi-
cated this to his co-trustee or to their cestui que trusts.
[In 1896, however, one of the cestui que trusts heard of the
appropriation. He was a solicitor, and acted as such for the
others, but though all were sui juris and absolutely entitled
they never called for a transfer or made any inquiry as to the
mortgage.]
In 1889 T was also a trustee of the T settlement.
In 1895 he had become sole trustee and N was appointed
co-trustee with him. N inquired as to the trust funds. T
represented the mortgage to be part thereof, and, at N's
request, T drew up and executed a legal transfer of it to him-
self and N. N was ignorant of the B settlement, T acted as
the solicitor and retained the deeds.
In 1897 T fraudulently deposited the deeds with the
defendant bank as security for a debt and executed a deed-
poll charging the debt on all his interest, binding himself to
execute a legal mortgage, and appointing three officers of the
bank as his attorneys to execute such legal mortgage on his
behalf The bank had then no notice of either settlement.
In 1898 T absconded. The bank received notice of the T
settlement, but not of the B settlement, ft thereupon caused
its three officers to execute a legal mortgage to the bank.
Now let us analyse the case and consider the following
points: —
X Taylor v. Loudon and County Bank 139
Point I. Do the rules as to realty apply, or those as to
charges on debts or personal trust funds? If the latter rules
apply notice determines priority, according to the rule in
Dearie v. Hall^.
It was held, of course, that mortgage debts charged on
land are governed by the rules as to priorities applicable to
interests in land, and so notice to the mortgagor is immaterial
{Jones V. Gibbons, 9 Ves. 407) — just as leaseholds are treated
as real estate for this purpose.
Point 2. Is there appropriation of the mortgage to B
settlement, in other words did this mortgage belong in equity
to the cestui que trusts of B settlement ? Rigby L.J. said No.
Stirling and Williams L.JJ. said Yes ; and I think that the
previously decided cases undoubtedly support the majority,
though they have done a great deal of harm by introducing a
questionable doctrine: — Middleton v. Pollock, 2 Ch. D. 104,
Sharp V. Jackson, 1899, A.C. 419.
Therefore if all that had happened was T's bankruptcy,
then the B cestui que tr?ists could have held the mortgage ;
though in this case it was not even an authorised security.
But they are volunteers only ; not purchasers for value.
Point 3. On the transfer of 1895 the legal estate vests in
T and N. All the Lords Justices agreed that the transfer was
for valuable consideration, as N had a right to sue T for the
trust fund, which right he gave up when he accepted the
mortgage. Such cases as Thorndike v. Hunt, 3 De Gex and
J. 563, and Taylor v. Blakelock, 32 Ch. D. 560, establish that
a person in the position of N must be treated as a purchaser
for value.
Point 4, There was no actual notice of the appropriation
to the B trust to trustees of the T trust as such. Was there
constructive notice .'' It was contended that there was, but this
question was held to be concluded by section 3 (ii) of the
Conveyancing Act, 1882, for T did not acquire his knowledge
as N's solicitor, nor in the preparation of the transfers to him-
self and N — 'not,' to use the words of the section, 'in the same
transaction in which a question of notice to the purchaser
arises.'
'' '" •■ 1 2 Russ. I.
140 Lectiti'es on Equity Lect.
Before the bank's mortgage the position therefore was that
the legal estate was in the T trustees holding for value upon
express trusts for the cestui que trusts of that settlement.
Point 5. The bank does not get the legal estate by the
deed of 1897 executed by T. Later it did get a legal mort-
gage; the deed of 1898 executed by its three officials gave
it the legal estate in an undivided moiety by severing the
joint tenancy existing in T and N, the other moiety remaining
vested in N. Can the bank use this legal estate in a moiety
as tabula in naufragio ?
Here the bank takes the legal estate in breach of an
express trust binding on T, and it had actual notice of the
trust at the time the transfer of this legal estate was executed
by its officers in 1898. Where there is no such notice then
the point is still open. There was of course no relation back
of the legal estate to the deed of 1897, and it was held to be
contrary to equity for the bank, with such notice, to get in the
legal title against N or the T beneficiaries, and it was not
allowed to gain any priority by virtue of having done so.
Point 6. But ought not the beneficiaries of the T settle-
ment to be postponed for negligence — as regards the moiety
of which the legal estate went to the bank — because the title
deeds were left in T's possession .'' Probably among equities
such postponement may take place upon the principles laid
down in Farrand v. Yorkshire Banking Co., 40 Ch. D. 182
(1888). But it was held that there had not been such negli-
gence as will postpone in this case, since a fiduciary relation-
ship existed between them and T, the person left in possession
of the deeds, and they had no ground to suspect any want of
good faith on his part, /;/ re Vernon, 33 Ch. D. 402 (1886).
The result is that as regards both moieties the bank has
no priority over the T settlement, and can be compelled to
give up the legal estate in the moiety obtained from T to the
T trustees.
Point 7. There remains a struggle between the B settle-
ment and the T settlement as to this moiety, the legal estate
in which was thus vested in the bank.
B settlement got no declaration of trust nor any assign-
ment of the legal estate. Its charge was first in time, and that
X Taylor v. London and County Bank 141
is all that can be said on that side — but it was not obtained
for value. On the other hand the T beneficiaries (by their
trustee N) are purchasers for value, with an express trust in
their favour ; this gives them the better right to call for the
legal estate, and therefore having the better right to call for
the legal estate they are entitled to the benefit of the legal
title under the rule laid down in Wilkes v. Bodington, 2 Vern.
599(1707).
The result therefore was the complete triumph of the T
settlement, and the bank was directed to re-convey to the
present T trustees the moiety of the legal estate, and also to
deliver up to them the deeds relating to the property.
LECTURE XI.
THE NATURE OF EQUITABLE ESTATES
AND INTERESTS, (iii.)
Bv this time we shall have convinced ourselves, if we
required conviction, that it is practically unsafe to regard
equitable estates and interests as rights in rem, as ownership
or fractions of ownership. As to what I may call the theoretic
question, the question of appropriate classification, I will say
one word more. I do not for one minute think that it should
be part of our conception of a right in rem, that the person
who has that right can never be deprived of it save by his own
act. To say nothing of cases in which the law may force a
sale of it upon him — cases in which, under our Lands Clauses
Act or similar provisions, he is deprived of his land in order
that a railway or the like may be constructed — there are other
cases in which he may lose his right by the act and the
wrongful act of another. Thus is it under our common law
when one who is not the owner, and who even may be a thief,
sells goods in open market to a bona fide purchaser ; the
owner's ownership is gone, the purchaser becomes owner. A
similar result may be brought about under the Factors Act —
a Factors Act of great importance was passed in 1889 and
was largely repeated in the Sale of Goods Act, 1893. Some
foreign codes go yet further and lay down that as regards
moveables possession vaut titre — the bona fide purchaser from
a possessor in general obtains ownership. Now at first sight
these instances may seem analogous to the case of the person
with an equitable estate who loses it when a bona fide pur-
chaser acquires the legal estate for value and without notice ;
and I think it possible that the equitable doctrine may be
historically connected with the doctrine about sales in market
Lect. XI Legal Estate outstanding 143
overt. But really there is a marked difference between the
two cases — in that of the sale in market overt the buyer gets
ownership, but we do not conceive that he gets it from the
seller, for the seller never had ownership ; while the rule
about the efifect of a purchase in rendering equitable rights
unenforceable is based on this that the trustee has ownership,
and transfers it to the purchaser, and that there is no reason
for taking away from the purchaser the legal right which has
thus been transferred to him.
To come to practical applications. One maxim of prudence
is this: — Never leave a legal estate outstanding however 'dry'
it may be. Often enough land is conveyed or devised to
trustees who at first have some active duties to perform —
there may be charges to pay, children to be educated and the
like — but after awhile the whole equitable estate becomes
vested in one person of full age, who is in possession of the
land ; *the trustee now has nothing to do but to convey the
land according to the directions of this cestui que trust ; very
probably the very existence of this legal estate is forgotten ;
on the trustee's death it passes to his devisee or heir, or since
the Conveyancing Act, 1881 (sec. 30), to his personal repre-
sentatives, and perhaps it goes on devolving from one set of
representatives to another — it is as 'dry' a legal estate as dry
can be — it looks like the ghost of a departed right. Never-
theless if you are buying or taking a mortgage from the cestui
que trust, from the person who seemingly is to all intents and
purposes the real and only owner of the land, do not be
persuaded to leave that legal estate outstanding, but insist on
having a conveyance of it. For think what will be your
position if it is conveyed to someone who can say 'I have
bought the land and obtained the legal estate bona fide for
value and without notice of your merely equitable rights.'
Another practical rule is this — Have as little to do with
second mortgages as possible, for think of the possibility that
a charge later than yours may be tacked to the legal estate
and that you may be squeezed out. Yet another rule is that
it you do take a second mortgage you should at once give
notice of it to the first mortgagee for this will at all events
prevent his tacking a subsequent advance.
144 Lectures on Equity Lect.
Thus far we have been dealing with land. The rules
which decide the priority of equitable charges on personal
trust funds are different to those which relate to charges on
land. As regards equitable charges on land the general rule
is that they rank in order of date, but as regards charges on
personal trust funds, the general rule is that they rank
according to the order in which the trustees get notice of
them\ T holds stocks or shares in trust for E, E gives a
charge on his interest to X as security for a loan, and then
gives a similar charge to Y as security for a later loan ; Y
having at the time no notice of X's right gives notice to T
before X does ; Y's charge is prior to X's. The rule is the
same where the subject-matter of the charge is not a trust
fund but a mere debt — a creditor assigns his debt first to X
and then to Y : Y when he paid his money had no notice of
the previous assignment ; he gives notice to the debtor before
X does and so gets priority. In the case of a debt we See the
reason for this rule ; it is a rule for the protection of debtors.
A debtor is of course justified in paying his creditor until he
has received notice that he ought to pay someone else ; when
he has received notice that he ought to pay to Y, he is justified
in paying to Y ; you cannot expect him to make inquiries as
to secret assignments. The same rule has been applied to
interests in personal funds created by trusts as well as to
rights arising under what are commonly and conveniently
called contracts as opposed to trusts — indeed we here see
once more how like a right under a trust is to a purely con-
tractual right — the trustee may safely pay to cestui que trust
until he has notice of an assignment, and he may safely pay
and will be bound to pay to the assignee who is the first to
give him notice, even though there has been another assign-
ment of earlier date. Therefore of course we get the practical
rule — If you take an equitable assignment of a debt or trust
fund give notice to debtor or trustee. The notice is not
necessary to complete the equitable assignment as against the
original creditor himself or his representatives, including his
^ Note that where the subject-matter is a mortgage ot leaseholds by sub-demise
the rules as to 'interest in land' apply — not the rules applicable to personal trust
funds or to debts. Taylor v. Lotidon and County Bank, 1901, 2 Ch. 231.
XI Priorities in Personal Trust Funds 145
trustee in bankruptcy, but the claims of competing assignees
rank as between themselves according to priority of notice.
Let us sum up the question of priorities when the subject-
matter is a chose in action or a trust fund of personalty.
Here notice to the debtor or trustee becomes important.
A second assignee (mortgagee) if he has no notice of the first
assignment may gain priority by being the first to give notice.
The rule had its origin in Dearie v. Hall^ and Loveridge v.
Cooper"', both in 1823, and both decided by Plumer M.R. ; and
is based upon an obscure mixture of principles. They are : —
(i) Protection of the debtor or trustee. The debtor may
pay his original creditor until he has received notice of an
assignment. He gets notice of an (equitable) assignment.
What may he do then ? He is not necessarily safe in paying
the assignee. But if there be another earlier assignee who
has not given notice he can not complain of payment to the
person who has given notice.
So in the case of a trust fund. T is trustee for A. A
assigns to X then to Y. Y gives notice. If before notice of
X, T pays to Y, X can not complain.
Hence the rule of prudence: — give notice. See Ward v.
Diincombe per Lord Macnaghten, 1893, A.C. at page 394.
(2) Hence arose a sort of notion that notice was neces-
sary to complete the title. (Lord Macnaghten at page 392.)
(3) By the Bankruptcy Acts — the order and disposition
clause — goods left in the order and disposition of a debtor
with the consent of the true owner were treated in bankruptcy
as the property of the estate. This idea was applied to choses
in action. A owes a debt to X, X assigns to M. X goes
bankrupt, the debt is part of his estate, unless M has already
given notice to A. (The giving of notice is regarded as a sort
of taking possession — the chose in action is no longer in
assignor's order and disposition.) This is not so in the
modern law. In the Act of 1883 the order and disposition
clause (sec. 44) has a proviso 'things in action other than
debts due or growing due to the bankrupt in the course of
his trade or business shall not be deemed goods within the
meaning of this section.'
^ 3 Kuss. I, "3 Kuss. 49.
M. £. 10
146 Lectures on Equity Lect.
One base of Dearie v. Hall is thus cut away, and one on
which Plumer M.R. had laid great stress.
Well, it gets decided that a second assignee (if he had
no notice of the prior assignment) can get priority by being
first to give notice to the debtor or trustee even though
before payment notice of the first assignment comes in. The
rule pushed to this extent where several assignees have given
notice before payment is not necessary for the protection of
the debtor or trustee. But Dearie v. Hall can not be over-
ruled for it was followed in the House of Lords in Foster v.
Cockerell^.
But difficulties begin when there is not continuously just
one trustee.
The modern cases show a tendency towards treating ' the
trustees ' as a sort of corporation, so that notice if once got in
sticks for good and all — or like a register in which something
is inscribed. But this is not yet triumphant.
Take the great case of Ward v. Diincombe, 1893, A.C. 369.
A is first assignee, B is second assignee. Ti and T2 are
trustees. Ti knows of A ; T2 doesn't. B gives notice to Ti
and T2. Ti dies. T3 is appointed. In the contest A is
preferred to B, though when the contest opens the trustees
for the time knew of B and not of A. (You should read the
judgment of Lord Macnaghten.)
Then take /// re JVasdale, 1899, i Ch. 163, decided by
Stirling J. Ti and T2 are the trustees. A gives notice to
Ti and T2. Both die or resign. T3 and T4 are appointed.
B gives notice to them. A is preferred. This is what has
been called the registration principle.
But see /// rt' Phillips' Trusts, 1903, i Ch. 183. Tl, T2
are the trustees. A gives notice to Ti — not to T2. Ti
dies. B gives notice to the existing trustees. B is preferred
(against the registration principle), by Kekewich J., on the
authority of a case- much doubted by Lord Macnaghten in
the House of Lords.
This is an unsatisfactory result. The practical moral is
this : — give notice to each one of the trustees.
1 3 Clark and Finnelly, 456.
* Tiiiison V. Ramsbottom, 2 Keen 35, doubted, 1803, A.C. at p. 394.
XI Legal and Equitable Assigninents 147
Read In re Lake, 1903, i K.B. 151, a case of secret mis-
appropriation. L was a solicitor and many times over a
trustee. He executed in favour of a client and cestui que
trusty A, whose money he had appropriated, a mortgage of
some policies of life insurance. The mortgage was not
communicated to A nor was any notice given to the In-
surance Companies. Later L executed another mortgage of
the same policies to a clerk in his own office as trustee for
other defrauded clients. This second mortgagee was the first
to give notice to the Insurance Companies and he prevailed.
And see In re Dallas, 1904, 2 Ch. 385. In that case
D in 1897 charged in favour of S his interest in a legacy
expected from his father who was still living. In 1898 he
charged the same expected legacy to B. In 1902 the father
died naming D sole executor. In January, 1903, D, who
had never acted, renounced probate. In March, 1903, ad-
ministration was granted with the will annexed. Next day
B gave notice to the administratrix and a week later S
did so. Subsequently the legacy which was in Court was
paid out to the administratrix. It was held by the Court
of Appeal that, though S's delay was not due to any detault
on his part, yet B was to be preferred as he was the first to
give notice when the fund came into existence and there was
a person having a legal dominion. Semble, notice to an
executor who never acts and renounces is bad ; and a notice
to the assignor is ineffectual.
As to the legal assignment of debts in general, this only
became possible under sec. 25, sub-sec. 6 of the Judicature
Act, 1873. To make the assignment a 'legal' one, I.e. to
enable the assignee to sue in his own name, it must under
that section (i) be an absolute assignment in writing and
one which does not purport to be by way of charge only,
(2) express notice in writing must be given to the debtor, and
(3) it is expressly provided that the assignee's right shall be
subject to all equities which would have had priority over it,
if this Act had not passed. Thus the assignment will not be
legal, i.e. will not enable the assignee to sue in his own name,
until notice in writing has been given to the debtor. The
possible analogy of the rules relating to a legal estate in lands
10 — 2
148 Lectures on Equity Lect.
is excluded, the legal assignee may find that his assignment
is treated as posterior to one which is merely equitable and of
which he had no notice. For merely equitable assignments
are still important^. Any assignment which is not absolute
but conditional and any assignment which on the face of it
purports to be by way of charge only can not be a legal
assignment. Any agreement for value to transfer to another
the benefit of the debt or chose in action is a good equitable
assignment even though made by word of mouth only and not
in writing ; and the notice to the debtor or trustee necessary
to give priority under the rules of equity was not, and is not
now, required to be notice in writing. Further it appears to
be questionable^ whether an assignment of part only of a debt
is within section 25, sub-section 6 of the Judicature Act, 1873,
or whether such an assignment can only be valid in equity
and whether, therefore, the assignee must still sue in the
name of the assignor. In modern practice instead of suing
in the name of the assignor it is usual merely to join the
assignor as a co-plaintiff, or even as a defendant if he refuses
to be a plaintiff. And recently in several cases where the
joining of the assignor has been a mere formality in no way
needed to protect the debtor the highest courts have shown
a tendency to permit the equitable assignee to succeed, al-
though the assignor has not been joined in any form^
^ See Brandts v. The Diinlop Co., 1905, A.C. 454. A mere direction,
request or even permission given by the creditor to the debtor to pay the debt to a
third person may be a vaHd equitable assignment which the debtor must observe
upon peril of having to pay twice over. See per Lord Macnaghten at p. 462 :
' All that is necessary is that the debtor should be given to understand that the
debt has been made over by the creditor to some third person.'
* See Durham Brothers v. Robertson, 1898, i Q.B. 765, per Chitty L.J. at
p. 774. The objection is based upon the hardship of permitting a creditor to split
the cause of action and so to subject his debtor to several actions at law. And
see per Cozens-Hardy L.J. in the case of Nelson v. Nelson Line, Ltd., 1906, 2
K.B. 217, at p. 225.
* See ToUmrst v. Associated Cement Manufacturers, 1903, A.C. 414, at
pp. 420 and 424; Brandts \. Dunlop Co., 1905, A.C. at p. 462, and Dawson v.
Great Northern and City Railivay Company, 1905, i K.B. 260, per Stirling L.J.
at p. 271 delivering the judgment of the Court (Collins M.R., Stirling and
Mathew L.JJ.). In the first of these cases the assignor was a Company in
liquidation and possibly dissolved ; in the second the assignor was a bankrupt,
and had already been paid in error ; in the last case the assignee had irrevocable
authority to give a receipt for the assignor,
XI As to Chattels no Constructive Notice 149
Finally, as regards equitable rights in moveable goods,
corporeal chattels, we hear very much less. Doubtless if I
bought a piece of plate from a trustee knowing that he held
it on trust for E, E might enforce his right against me, and
this would be so even though I purchased in market overt.
But a purchaser of moveable goods is not expected to
investigate his vendor's title. Of course if he buys from one
who is not owner, and the sale does not take place in market
overt or fall within the rules introduced by the Factors' Acts
he gets a bad title. But though this be so, equity has not
been able to say of corporeal chattels as it has said of land and
of trust funds that the prudent purchaser makes an investiga-
tion of title. Corporeal chattels are outside the realm of
constructive notice. In Joseph v. Lyons, 1884, 15 Q.B.D. 280,
an attempt was made to apply that doctrine to goods, but the
Court of Appeal would not hear of it. Cotton L.J. said 'I
think that the doctrine as to constructive notice has gone
too far and I shall not extend it' — and Lindley L.J. ' It seems
to me that the modern doctrine as to constructive notice has
been pushed too far, and I do not feel inclined to extend it.'
In leaving this particular topic I may perhaps be allowed
to say that in my opinion the words that I have just quoted
point out the true course for the law reformer. If our land
law is to be simplified this will not be by a repetition of the
partial and abortive attempt at abolishing the difference
between equitable and legal estates which was made by the
Vendor and Purchaser Act of 1874 in the section directed
against tacking ; but on the contrary by laying stress on the
distinction and depriving equitable estates of their would-be
proprietary character by relaxation of the doctrine of con-
structive notice. Perhaps the statutory definition of con-
structive notice that we have now got in section 3 of the
Conveyancing Act of 1882 may do something towards this
end ; but more thorough-going measures seem necessary.
And now a few words as to the general relation between
Equity and Law. A few years ago there was, if I may so
speak, a visible distinction. If it was impossible to explain
the distinction without a long historical discourse, still it was
possible to point to the distinction as a visible matter of fact —
1 50 Lectures on Equity Lect.
to say to the inquirer ' Go to Westminster Hall and you will
there see courts administering Common Law ; then go to
Lincoln's Inn and you will there see courts administering
Equity.' The existence of the distinction was made emphatic
in every sort of way. In the Courts of Common Law were
judges hearing 'actions' begun by 'writ,' carried on by
' declaration ' and ' plea ' with a system of procedure of which
trial by jury was the central fact. In the Court of Chancery
were the Chancellor, Master of the Rolls, and Vice-Chancellors
hearing 'suits' begun by 'bill' with a system of procedure
which made no use of a jury and differed at almost every
possible point from the procedure of the Common Law. In
the smallest matters one saw the difference — the same man
who was a 'solicitor' of the Court of Chancery was an ' attorney
at law.' If at times the differences in detail seemed unneces-
sarily great one had to remember that the Chancery had by
the very law of its being to keep very clear of the field of
common law. The mere fact that the old courts could do
something was a reason why the new court should not
do it.
And now all this has passed away; one can no longer sa}'
' Here is a Court which administers nothing but common law,
and there a Court which administers nothing but equity.' The
task of the student is really all the harder. Let us look at the
matter a little.
In the first place let us guard ourselves against the fallacy
of supposing that the Chancery Division of the new High
Court is the Court of Chancery under a new name, or that the
old courts of common law are now called the Queen's Bench
Division. This would be a great error. It is true that actions
of certain kinds have been assigned to one division, actions of
certain other kinds to the other, though in many cases the
plaintiff has a choice. This is a convenient division of labour
— the trying with a jury is done in one division, the other has
a machinery adapted for taking accounts. But a rule of court
might alter this assignment, and an Order in Council might
abolish the existing ' divisions ' — the Common Pleas Division
and the Exchequer Division were thus merged in the Queen's
Bench Division. And, to come to a more important point.
XI The Jitdicatitre Act 151
every judge in whatever division he may be sitting is bound
to apply every rule whether of common law or of equity that
is applicable to the case before him. He cannot stop short
and say that is a question of common law which I am incom-
petent to decide, or, that is a merely equitable right and I can
take no notice of it.
But if this be so, if the two bodies of rules have to be
administered together, have not the terms law and equity lost
their meaning? Well, as terms, they are merely historical
terms, and such they have been for centuries past ; but they
will endure for a long time yet, for they do express dis-
tinctions of the utmost importance — distinctions among the
rules of substantive law — and if we had not inherited this pair
of terms we should be obliged to invent others to serve the
same purpose.
For the Judicature Act did not alter the substantive law
— save in a few points to be hereafter mentioned — did not
change the nature of rights or even give new remedies. It
only made a thorough change in procedure — introducing a
new procedural code, partly borrowed from that of the
common law, partly borrowed from that of equity, and in
part newly invented.
A 'i^w points of substantive law were expressly dealt with
by section 25 — the ist sub-section relates to the administration
of assets ; it never came into force, for the Act of 1875, sec. 10,
repealed it and put another somewhat similar clause in its
stead — the 2nd subsection said that no claim of a cestui que
trust against his trustee for any property held on an express
trust or in respect of any breach of such trust shall be barred
by any Statute of Limitations — the 3rd sub-section related to
the doctrine of equitable waste — the 4th to merger by opera-
tion of law — the 5th to the rights of a mortgagor in possession
— the 6th to the assignment of choses in action — the 7th to
stipulations in contracts, which according to the doctrines of
equity are not of the essence of the contracts — the 8th to the
issuing of injunctions and the appointment of receivers — the
9th to damages by collisions at sea — the loth to the custody
of infants and to a number of little miscellaneous points — then
follows the I ith to which I wish to draw attention. 'Generally
152 Lectures on Equity Lect.
in al! matters not herein-before particularly mentioned in
which there is any conflict or variance between the rules of
equity and the rules of the common law with reference to the
same matter, the rules of equity shall prevail.'
Now what did this sub-section do ? Did it turn equitable
estates into legal estates, acting like a second Statute of Uses?
Of course it did not. There was no conflict or variance here
between common law and equity. The statement that T is
owner but is a trustee for E is not self-contradictory. It is no
more self-contradictory than the statement that A is the
owner of goods but owes more debts than he can pay. Austin,
we have seen, speaking of the position of one who has agreed
to buy land but has not yet obtained a conveyance, talks of
the conflict between law and equity, of how equity held that
the contract passed a Jus in rem. To speak thus is to take a
very superficial view of the case — the right that the purchaser
gets by the contract is no right in rem, and there is no conflict
between law and equity.
So far as I am aware it never entered into the head of
anyone that the Judicature Act had rendered trusts impossible.
But it did enter the heads of some that this nth sub-section
had done much more than really it did. Some of the cases
about this are very instructive and will help to show us what
is the relation between law and equity at the present time.
Take the case oi Joseph v. Lyons, 1884, 15 Q.B.D. 280.
The substance of the case is this. One Manning by bill of
sale assigned to Joseph as security for money lent certain
furniture and jeweller's stock in trade then in a certain house
— 'and also all the stock in trade and effects which shall at
any time during the continuance of this security be brought
into the said house.' After a while Manning pledged pare
of the jewellery which formed the stock in trade with Lyons,
a pawnbroker, who took the goods without knowing of the
bill of sale and in the ordinary course of his business. These
things Manning had acquired after the date of the bill of
sale. Joseph demanded these goods from Lyons, but Lyons
claimed to hold them as security for the money that he had
lent ; whereupon Joseph sued Lyons.
Now of course it is a rule of common law that a man
XI Joseph V. Lyons 153
can not give to another the ownership of goods that he neither
owns nor yet possesses. I assign to you my furniture now
in my house, and any furniture that I may hereafter acquire
and place in that house. The ownership in these hereafter to
be acquired goods* can not pass to you — for either the things
are not yet in existence, or if in existence they are not mine
to give. The utmost that can be done under the common
law by any would-be assignment of goods hereafter to be
acquired will be to act (i) as a licence to you to seize those
goods when I have acquired them, and (2) as a covenant by
me that I will deliver them to you and thereby make them
yours when I do acquire them. Equity was prepared to do a
little more for you. If the assignment was for value and was
sufficiently specific in its terms, pointing out exactly what
goods it was to affect — saying, e.g. any stock in trade here-
after acquired by me and brought into such a shop — it would
decree specific performance of this contract. This being so,
as in the case of land, it would further hold that the contract
could be specifically enforced against volunteers claiming
under me, and even against persons purchasing the goods
from me with notice of this specifically enforceable contract.
This was the subject of a famous decision by a divided House
of Lords in Holroyd v. Marshall (10 H.L.C. 191). And so
lawyers easily slipped into the way of saying that in equity
one could make an assignment of goods hereafter to be
acquired though one could not do so at law. This was a
compendious way of putting the matter and was not likely
to deceive any equity lawyer.
It seems however to have deceived Huddleston B., who
(his reasons are not given) held that Joseph could recover the
goods or their value from Lyons. In the Court of Appeal
Joseph's counsel boldly stated the propositions that he had a
valid equitable title to the after acquired goods, and that as the
Judicature Acts had abolished the distinction between legal
and equitable interests, he had also a valid legal title. The
answer to this argument lies in the question : — But what was
meant by a valid equitable title — a title good against all
men — a right in rem — a title good against a bona fide
* Or 'future goods' as they are called in the Sale of Goods Act.
1 54 Lectures on Equity Lect.
purchaser for value without notice? No, certainly not, equity
never gave any such right. The Court of Appeal reversed
the judgment. Lindley L.J. put the matter succinctly.
'Reliance was placed upon the provisions of the Judicature
Acts, and it was contended that the effect of them was to
abolish the distinction between law and equity. Certainly
that is not the effect of these statutes : otherwise they would
abolish the distinction between trustee and cestui que trusts
A desperate effort was made to say that the pawnbroker had
constructive notice of the bill of sale ; the Lords Justices
rejected this contention in words that I have already read\
We see then that merely equitable rights keep their peculiar
character still — there is here no conflict between law and
equity.
When considering the case of Joseph v. Lyons it is worth
noticing that ' declarations of trust without transfer ' may be
bills of sale within sec. 4 of the Bills of Sale Act, i ZyZ ; and also
that under the Bills of Sale Act, 1882, sec. 5, a bill of sale
given by way of security for money will be void, except as
against the grantor, as regards any chattels of which the
grantor was not the true owner at the time of the making of
the bill of sale.
Another very interesting case is Britain v. Rossiter, 1879,
II Q.B.D. 123. For our present purpose we may state it
thus. The plaintiff agreed to serve the defendant for longer
than a year. After some months he was dismissed and then
brought this action for wrongful dismissal. The defendant
relied on the 4th section of the Statute of Frauds, on the fact
that there was no note or memorandum in writing of the
agreement. In answer to this the plaintiff urged that the
agreement had been in part performed, and that the rule of
equity was that ' part performance takes a case out of the
statute.' True that before 1875 this contract could never have
come before a court of equity at all, because equity had no
jurisdiction to compel the specific performance of contracts of
hire and service ; but now the Judicature Acts provide that
when there is a conflict between law and equity the rules of
equity must prevail, and the rule of equity is that part
1 Ante, page 149.
XI 'Conflict or Variance' 155
performance takes the contract out of the statute. The
answer to this given by the Court of Appeal was in effect
this : — that to read the Judicature Acts in the way suggested
would be to alter not merely procedural rules but substantive
rights. Before 1875 in breach of this agreement no right to
sue for damages would have accrued to the plaintiff — specific
performance was out of the question — breach of the agreement
even though part performed would not have enabled him to
call on equity for assistance. Before the Judicature Acts he
would have had no remedy either in law or in equity, and he
has none now. Brett, the Master of the Rolls, added, what is
very true, that the cases in the Court of Chancery as to the
part performance of contracts relating to land ' were bold
decisions on the words of the statute.' Cotton L.J. pointed
out that they had a peculiar origin and a limited scope.
When the contract is for the sale of land, payment of a part or
even the whole of the purchase money would not serve to
dispense with the written evidence required by the statute : it
was only the purchaser's possession of the land, a fact hardly
explicable save by the supposition of some contract for its
sale or lease that would have this effect.
These cases then will serve to show that the nth sub-
section can have but a very limited operation.
LECTURE XII.
THE PRESENT RELATIONS OF EQUITY AND
THE COMMON LAW.
The Judicature Act, 1873, sec. 25, sub-sec. 11, speaks, we
have seen, of cases in which there is a conflict or variance
between the rules of the common law and the rules of equity.
We have seen, however, that normally the relation between
equity and law has not been one of conflict. How could it
have been otherwise .'' After all, for centuries past this country
has been decently governed and reasonably peaceful, and this
would not have been so if we had really had two conflicting
systems of law in full operation. ' The courts of common law
said that the trustee was the owner, but the Court of Chancery
said that the cestui que trust was the owner ' — if we take this
crude statement literally it is an invitation to civil war. No,
we ought to think of the relation between common law and
equity not as that between two conflicting systems, but as that
between code and supplement, that between text and gloss.
And we should further remember this, that equity was not
a self-sufficient system — it was hardly a system at all — but
rather a collection of additional rules. Common law was, we
may say, a complete system — if the equitable jurisdiction of
the Chancery had been destroyed, there still would have been
law for every case, somewhat rude law it may be, and law
imperfectly adapted to the needs of our time, but still law for
every case. On the other hand, if the common law had been
abolished equity must have disappeared also, for at every
point it presupposed a great body of common law.
It is a little difficult therefore to say what this sub-section
means when it speaks of conflict and variance, and it is very
much easier to find cases in which a despairing appeal has
Lect. XII 'Conflict or Variance' i(5y
been made to these words than to find cases In which such
appeals have been successful. I think we must say that in
some few cases the jojnt operation of law and equity produced
a result so capricious that they might be regarded as at con-
flict or at variance. Such cases were rare; we have for instance
seen in Joseph v. Lyons'^ that there was no conflict between
them as to the effect of an assignment of chattels hereafter to
be acquired ; we have seen in Britain v. Rossiter- that there
was no conflict between them as to the effect of the part
performance of an agreement of which there is no note in
writing, though one is required by the Statute of Frauds.
Was there a conflict about (so-called) equitable waste ?
Perhaps there was. If a tenant for life, made unimpeachable
for waste, cut down ornamental timber, he could not be made
to pay damages in an action at law, but equity would prevent
him from so doing by injunction, or if he did it would compel
him to account. So we might here say that equity did con-
sider that he must pay for his act, while law held that he need
not. But it is needless to speculate about this matter, for the
Act specially provided for it. By section 25, sub-section 3,
an estate for life is not to confer any legal right to commit
waste of the description known as equitable waste, unless a
contrary intention has been expressed. And so again as to
stipulations being of the essence of a contract, the 7th sub-
section provided that stipulations which would not have
been deemed to be or have become of the essence of a
contract in a court of equity should receive in all courts
the same construction and effect as they would have hereto-
fore received in equity. Before the Act we might certainly
have had results which could be called capricious and in-
elegant. A contract had ceased to be enforceable in a court
of law by action for damages because the party who might
have wished to enforce it had himself broken it, while in
equity the contract (being one belonging to the genus enforce-
able by specific performance) might still be eniorceable, the
broken stipulation being treated as one which was not of
the essence of the matter. What would have happened had
this point not been specially dealt with by the Act, had it
1 15 Q.B.D. 280. 2 ii Q.B.D. 123.
158 Lectures on Equity Lect.
been left to the t^cneral words of the nth sub-section, we need
not speculate. I doubt it could be said that there was any
conflict here, any self-contradiction, in the statement that a
decree for the specific performance of this contract will be
made, but no damages can be given for its breach'.
The best example that I have found of the operation of
sub-section 11 is Job v. Job, 6 Ch. D. 562. The assets of a
testator come to the hands of his executor, and are after-
wards lost to the estate without any wilful default on the
part of the executor ; can the executor be made liable for
their value ? It is probable, though perhaps not quite certain,
that the common law said ' Yes, if they have once come to his
hands he can be made liable, default or no default.' Equity
however had come to a different rule, namely, that to make
the executor liable one must prove wilful default. Now, sup-
posing these rules to be so, there was something that might
reasonably be called a conflict, for the question might have
come before a court of law in an action for devastavit, or
before a court of equity in an administration suit, and in each
case the question would have really been the same, viz, is the
executor bound to restore the value of these goods. And
so in Job V. Job, Jessel M.R. treated the case as one of
conflict or variance, and held that the rule at law as well as in
equity now is that an executor or administrator is in the
position of a gratuitous bailee, who can not be charged with
the loss of his testator's assets without willul default. That
is one example.
Another illustration is to be found in the case of Lowe v.
Dixon, 16 Q.B.D. 455. Several persons. A, B, C, D, enter
into a joint adventure, e.^. buying and selling corn, a loss
ensues ; one of them. A, is compelled by the creditor, X, to
pay the whole loss, say ^1000. Of course he has some right
to call upon his fellows to contribute, and there being no
agreement to the contrary they ought to contribute in equal
shares — this is law and equity — B, C and D, each of them
ought to pay A ^^^250. But suppose that one of them
^ Not any more conflict than in the converse statement (which is still good law
in countless cases) : — Damages will be given for the breach ol this contract but
specific performance of it will not be decreed.
XII Contribution among Co-debtors 159
can not pay, e.g. D has not a farthing in the world, how
much can A get from B and from C ? The view taken
by courts of law was that each adventurer agreed with his
fellows to contribute one quarter of the loss and no more.
In this case A, having paid away ^looo to X, could at law
obtain a quarter of that sum from B, and another quarter from
C, but no more ; thus he himself would lose ;!^500, while B
lost but ^^250, and C but ;^2 50. Equity had taken a different,
and to us it must seem a more sensible view ; the whole loss
should be borne equally. The whole loss is ^looo, therefore,
since D has nothing, A can get ;i{^333. ^s. ^d. from B, and a like
sum from C. The consequence of course would have been
that before the Judicature Act A would not have brought an
action at law against B and C, but would have brought a suit
in equity. Thus the legal rule had become a caput inortmim
before the Act. The case of Lowe v. Dixon merely shows that
this caput mortiium has disappeared altogether. We are no
longer obliged to say that A can recover two-thirds of the
loss, but that this is a result of equity since at law he can
recover but half the loss ; we can simply say that A can get
two-thirds in whatever division of the High Court he may
bring his action. I do not think that in this matter there has
been any real change in the substantive law.
One other illustration, WalsJi v. Lonsdale, 21 Ch. D. 9,
a somewhat difficult and dangerous case, i.e. one which may
lead us to suppose that the nth sub-section has done more
than really it has done.
By a written agreement L agreed to let to W a cotton mill
for seven years at a rent which was to be payable in advance
if demanded. This was not a lease, for it was not made by
deed, it was merely an agreement for a lease. W entered and
occupied the mill, and for some time paid the rent, but not in
advance. Then L demanded a year's rent in advance, and
this demand not being complied with he distrained. W then
brought an actioh against L claiming damages for an unlawful
distress.
Now before the Judicature Act the position of affairs would
have been this. The agreement for a lease did not in the
view of a court of law operate as a lease. The only facts that
i6o Lectures on Equity Lect.
a court of law could have considered were these: — W has
entered on land of L, and has paid rent periodically, this
shows that W is holding the land of L as tenant from year to
year at a rent. Now if I have a tenant from year to year
holding of me at a rent, that does give me a power to distrain
for rent in arrear, but it does not give me power to distrain
for rent in advance: therefore in this case L has done wrong. On
the other hand a court of equity would have granted specific
performance of the agreement for a lease. If W had come to
it with a bill for specific performance it would have decreed
that L should perform his contract by accepting a lease in
accordance with the agreement. What is more, had L dis-
trained for rent in advance he would have been doing an
unlawful act — an act unlawful in the narrow sense — and at law
W would have had an action for damages against him : but
I think that L might have applied to a court of equity to
enjoin W from bringing that action, on the ground that W had
agreed to pay rent in advance, and was occupying the land
under that agreement. Now if this be so, then the Court of
Appeal in deciding that under the Judicature Act L could
distrain for rent in advance, did but give effect to the net
result of the previously existing rules of law and equity.
Jessel M.R. however, put the matter thus, at page 14 of the
report in 21 Ch. D.:
' There is an agreement for a lease under which possession
has been given. Now since the Judicature Act the possession is
held under the agreement. There are not two estates as there
were formerly, one estate at common law by reason of the
payment of the rent from year to year, and an estate in equity
under the agreement. There is only one court, and the
equity rules prevail in it. The tenant holds under an agree-
ment for a lease. He holds, therefore, under the same terms
in equity as if a lease had been granted, it being a case in
which both parties admit that relief is capable of being given
by specific performance. That being so he can not complain
of the exercise by the landlord of the same rights as the
landlord would have had if a lease had been granted. On the
other hand he is protected in the same way as if a lease had
been granted ; he can not be turned out by six months notice
XII Walsh V. Lonsdale i6i
as a tenant from year to year. He has a right to say "I have
a lease in equity, and you can only re-enter if I have com-
mitted such a breach of covenant as would if a lease had been
granted have entitled you to re-enter according to the terms
of a proper proviso for re-entry." That being so, it appears
to me that being a lessee in equity he can not complain of the
exercise of the right of distress merely because the actual
parchment has not been signed and sealed.'
Now I am not sure that these words are not a little mis-
leading, and I have heard remarks upon Walsh v. Lonsdale
which seemed to imply that since the Judicature Act an
agreement for a lease is in all respects as good as a lease.
Now Jessel certainly did not say this, and to say it would
certainly be untrue. An agreement for a lease is not equal to
a lease. An equitable right is not equivalent to a legal right ;
between the contracting parties an agreement for a lease may
be as good as a lease ; just so between the contracting parties
an agreement for the sale of land may serve as well as a
completed sale and conveyance. But introduce the third
party and then you will see the difference. I take a lease ;
my lessor then sells the land to X ; notice or no notice my
lease is good against X. I take a mere agreement for a
lease, and the person who has agreed to grant the lease then
sells and conveys to Y, who has no notice of my merely
equitable right. Y is not bound to grant me a leased
The later case of Swain v. Ayres, 21 Q.B.D. 289, has
made it clear that the Judicature Act has not abolished the
difference between a lease and an agreement for a lease. An
agreement for a lease is not a lease within section 14 of the
Conveyancing Act, 1881, which says that the right Oi re-entry
or forfeiture under any proviso or stipulation in a lease for
breach of any covenant or condition in the lease shall not be
enforceable unless a certain notice has been served by the
lessor on the lessee. Note that the law was extended by
sec. 5 of the Conveyancing Act of 1892, and 'lease' and
'under-lease' are made to include for this purpose any
agreement for a lease or for an under-lease where the
1 But if at the time that he buys I am in possession of the land under the
agreement Y will have constructive notice of all my equitable rights.
M. E. II
i62 Lectures on Equity Lect.
lessee has become entitled to have his lease (or under-lease)
granted.
The case of LoivtJier v. Heaver, 41 Ch. D. 248, is also
worth consulting ; as is also the case of Manchester Brewery v.
Coonibes, 1901, 2 Ch. 608. There Farwell J. at page 617 said:
' Although it has been suggested that the decision in Walsh v.
Lonsdale takes away all differences between the legal and
equitable estate, it, of course, does nothing of the sort, and the
limits of its applicability are really somewhat narrow. It
applies only to cases where there is a contract to transfer
a legal title, and an act has to be justified or an action main-
tained by force of the legal title to which such contract relates '
...and at page 618: ' It is not necessary to call in aid this
doctrine in matters that are purely equitable ; its existence is
due entirely to the divergence of legal and equitable rights
between the same parties, nor does it affect the rights of third
parties.'
In the case of Foster v. Reeves, 1892, 2 Q.B., 255, the
defendant entered on premises of greater value than iJ^500
under an executory agreement for a lease. He subsequently
gave six months notice and left. An action was brought
against him for rent accruing due after he had given up
possession. It was held by the Court of Appeal that the
equitable doctrine that a person who enters under an execu-
tory agreement for a lease is to be treated as in under the
terms of the agreement, can only be applied if the Court in
which the action is brought has power to give judgment for
specific performance, and the action was therefore dismissed,
but solely on the ground that it had been brought in a
County Court which in cases above the value of ;6^500 had
not such power.
I have now mentioned the main cases in which some effect
has been attributed to the i ith sub-section of section 25 of the
Judicature Act. The other cases in which an operation has
been found for this sub-section hardly rise above the region of
procedure. Doubtless the full force of this provision has not
yet been spent, and those who live longest will know most
about its meaning ; but it has been law these thirty years, and
has produced very little fruit. And one thing it certainly has
XII Covenants rimning with the Land 163
not done, it has not discharged us from the necessity of learn-
ing tlie true nature of equitable estates and interests.
I pass to a final illustration of our theme. We all know
something of the common law doctrine of covenants running
with the land, and probably we have heard about covenants
which run with the land in equity though they do not run
with the land at law. Now our point will be to contrast
common law rules with equitable rules and to understand that
the term ' a covenant running with the land in equity though
not at law,' though it may be a useful term, is one that might
easily lead to mistakes.
First as regards the common law rules : I do not propose
to go into them very deeply — there is an excellent tabular
statement of them in Pollock, Contracts, 7th ed. pp. 235 et
seq. — but still a {^\\ words must be said about them.
I. In the first place we must mark off from all other
cases those in which the covenant in question is contained in a
lease \ and about such covenants there are some elaborate
rules. There seem to be four cases for consideration — for we
have to consider the burden and the benefit of the lessor's
and the lessee's covenants respectively. We have also to
note that some of our rules are ancient common law while
others are due to a statute of 1540, 32 Hen. VIII, c. 34.
(i) TJie Burden of the lessee's covenants. As to this the
common law made provision. The assignee of a lease is
bound by the lessee's covenants (i) as to an existing thing
parcel of the land demised, whether assignees be expressly
mentioned in the covenant or no, (ii) as to something to be
newly made upon the premises, if, but only if, assignees be
mentioned.
The classical authority is Spencers Case, 5 Rep. i6a
(i Smith's, L.C. 52, loth ed.).
You should read also the case of White v. Southend Hotel
Co., 1897, I Ch. 767, where it was held by the Court of Appeal
that a covenant not to sell any wines in the demised house
except those purchased from the lessor runs with the land at
law without mention of assigns.
(2) The Burden of the lessor's covenants. Whatever may
have been the case before 1540 (and perhaps this matter is
164 Lectures on Equity Lect.
not free from doubt) the assignee of the reversion is bound
by the lessor's covenants under section 2 of the Statute of
Henry VIII.
(3) The Benefit of the lessee's covenants. It seems certain
that at common law, i.e. before the statute, the assignee of the
reversion could not sue upon the lessee's covenants — the
statute says as much, 'by the common law of this realm no
stranger to any covenant shall take any advantage or benefit
of the same by any means or ways in the law, but only such
as be parties or privies thereunto' (cf. the rule that a chose in
action is not assignable). The statute proceeds to give the
assignee of a reversion the benefit of the lessee's covenants.
(4) The Benefit of the lessors covenants. This runs with
the tenancy at common law. (See Spencer s Case.)
These provisions of the common law and of the statute of
Henry VIII have been in some respects amplified by sections
10 and II of the Conveyancing Act of 1881, but into their
details we must not examine at present ; the changes are not
of very great importance.
Let us notice in passing that when a lessee assigns his
lease there is no transfer of the liability on his covenants from
him to the assignee. The original lessee remains liable on
his covenants throughout the term. But the assignee also
becomes liable and remains so while he has the term, but his
liability ceases when he assigns the term, i.e. he is not liable
for what happens after that. Also the assignee is liable to
indemnify the lessee in respect of any breaches of covenant
which take place after assignment.
Notice also that 'assignment' does not include 'under-lease.'
The under-lessee is not liable on the lessee's covenants, and
this is the reason why when leaseholds are mortgaged they
are usually mortgaged by way of sub-demise, in order that
the mortgagee may not become liable on the lessee's
covenants.
Note the case of Bryant v. Hancock in the Court of
Appeal, 1898, I Q.B., 716^ I covenant that I, my executors,
administrators or assigns, will not use in a certain way a
house which you demise to me. I make an under-lease. My
^ Allirmed in the House of Lords, 1899, A.C. 442, but upon another point.
XII Covenants rtmning with the Land 165
under-lessee uses the house in the prohibited way. You can not
sue me (for he is not an 'assign'), nor can you sue him, for the
same reason.
II. As to other cases of covenants relating to land— ?>.
cases other than those between landlord and tenant— these
fall into two classes : —
{a) Covenants of this kind entered into with a landowner
for the benefit of the land ; the benefit runs with the estate, if
the covenant touches and concerns the land of the cove-
nantee, e.g. vendor's covenants for title.
{b) Covenants of this kind entered into by a landowner —
it seems that the burden never runs with the land even though
assigns be mentioned.
Now all these rules are rules of law — and the liability of
the assignee is quite independent of his having or not having
notice of the covenant. On the one hand in an action for
damages against the assignee of a lease, it would be no
defence for the assignee to urge that he never had notice of
the covenant — that his assignor had by some clever fraud
contrived that he should not have notice. On the other hand
the lessor could not bring an action against the under-lessee
on the lessee's covenants, even though the under-lessee when
he took his under-lease had notice — as would usually be the
case — of the covenants in the lease. Notice and absence of
notice are quite immaterial. It will neither give nor take
away rights. Further, no distinction is drawn at law between
positive and negative covenants.
Then comes the equitable gloss developed by a long line
of cases of which I'ldk v. Moxhay (1848, 2 Phil. 774) is the
leading case. Until lately it would have been expressed
thus : — Anyone coming to the possession of land with notice
actual or constructive of a covenant entered into by someone
through or under whom he claims, restricting the use to be
made of that land, will be prohibited from doing anything in
breach of the covenant. Now, since the case of In re Nisbet
and Potts' Contract, 1906, i Ch. 386 (with which I will deal
presently) we must perhaps say merely that anyone coming
to the land with notice actual or constructive of a covenant
entered into by some previous owner of the land, restricting
1 66 Lectures on Equity Lect.
the use to be made of that land, will be prohibited from doing
anything in breach of that covenant.
Let us see the foundation of this doctrine. Why should
equity interfere at all, and first, why should it interfere
between the original covenantor and covenantee ? Because
the remedy which the common law gives in such covenants is
an inadequate one. I have covenanted with you that I will
not build on a certain piece of land, or that a certain house
shall not be used as a public house. Now practically the
common law would render it possible for me to force you to
sell the right given you by the contract, to oblige you to
accept in lieu thereof a sum of money assessed by a jury as
damages. Equity then begins interfering between covenantor
and covenantee, restraining by injunction the covenantor from
using the land in defiance of his contract. Once started on
this task — it could hardly stop here — by a very little con-
veyancing machinery, a collusive conveyance, the covenantor
might practically set himself free from the covenant. So
equity began restraining grantees, assignees, under-lessees of
the land from doing anything in breach of the restrictive
covenant, if they came to the land with notice of it, and this
regardless of the question whether the covenant ran with the
land at law. And so the conception was formed of covenants
running with the land, not at law, but in equity. The phrase
however is not a very happy one. The injunction does not
go against the grantee or assignee or sub-lessee on the ground
that he has come to the land, it goes against him on the
ground that he has come to the land with notice — express
notice or constructive — of this restrictive obligation. The
covenant must be a restrictive one, a negative one. This
point was decided in Haywood v. Brufiswick Building Society,
8 O.B.D. 403. A covenant not to build falls within the
doctrine — as regards a covenant to build equity would have
nothing to say, the parties are left to the rights, if any, which
the common law gives them.
The Judicature Acts have not made any confusion of these
different principles. Let us examine an instructive case,
Hall V. Eu'iu (1887), 37 Ch. D. 74. Hall demised a house to
Tarlington for eighty years, and the lessee covenanted thar
XII Restrictive Coven ants 167
he, his executors, administrators and assigns would not use the
premises or permit or suffer them to be used by any person
for any noisome or offensive business. Tarlington sub-demised
the premises by way of mortgage to Ruddach for the term of
eighty years less three days. Under the power of sale in this
mortgage, Ruddach's executors sold and assigned the premises
to Ewin for the residue of the eighty years term less the three
days. Ewin then sub-let to McNeff for 21 years, and McNeff
covenanted not to carry on any noisome or offensive trade or
business, but proceeded to open a wild beast show. Hall then
sued McNeff and Ewin. We may take it (i) that the wild
beast show was an offensive business, and (2) that both Ewin
and McNeff had notice of the covenant contained in the
original lease. This being established it could not be disputed
that an injunction ought to go against McNeff. But how
about Ewin — could he be enjoined from suffering the nuisance
to continue? Kekewich J. granted an injunction against him
on the ground that ' he was equitably bound by the covenant
and that as he had power to enforce the covenants contained
in the sub-lease to McNeff and to stop the nuisance, he had
broken the covenant against suffering the premises to be used
for the purpose of a noisome occupation.' The Court of
Appeal dissolved the injunction against Ewin. The first
point that we have to notice is that Ewin was not at law
liable on the covenant ; he was not an assignee of the original
lease, but had a derivative term created by the mortgage
deed. Then as to equity. Cotton L. J. put the matter thus: —
'There is no doubt that under the principle of Ttilk v.
Moxhay^ if a man had actually done anything in contraven-
tion of the covenants of which he had notice the Court would
grant an injunction. As I understand Ttilk v. Moxhay the
principle there laid down was that if a man bought an under-
lease, although he was not bound in law by the restrictive
covenants of the original lease, yet if he purchased with notice
of those covenants the Court of Chancery could not allow him
to use the land in contravention of the covenants. That is a
sound principle. If a man buys land subject to a restrictive
covenant he regulates the price accordingly, and it would be
1 2 rh. 774.
1 68 Lectures on Eqitity Lect.
contrary to equity to allow him to use the land in contraven-
tion of the restriction. But here the Plaintiff does not seek to
restrain Ewin from using the house in a particular way, or
from doing something which will enable the tenant so to use
it, but to compel him to bring an action against his tenant
who is in possession of the house'.... The Court of Appeal
in ' Hayivood v. Brunsiuick Permanent Benefit Building Society "^
...laid down that the principle in Tidk v. Moxhay was not to
be applied so as to compel a man to do that which will
involve him in expense.'
And Lord Justice Lindley said (at page 8i) ' It is impor-
tant to bear in mind that Ewin is not an assignee of the
original lease, and is not bound at law by the covenants. It
is true that the distinction between an assignee and an under-
lessee of the term, less a few days, is a very nice and technical
one, but we can not help that ; we can not hold that Ewin is
bound at law by any covenant, nor can he be made liable for
damages in any action at law. Therefore the Plaintiff is
driven to bring him within the principle of Tidk v. Moxhay.
I do not think that he has succeeded in doing so. This is an
attempt to extend the principle of that case beyond its proper
limits, and I think that such attempts ought not to be
encouraged.'
The position of a person who has come to land with notice
of a covenant but without becoming legally liable on that
covenant is thus a peculiar one ; it would be unconscientious
of him to do anything by way of active breach of a negative
covenant; but this is all that equity can expect of him, at law
he is not bound by the covenants and equity expects no more
than that he will not actively break them. But note that an
injunction may go against a mere managing occupier, Mander
V. Falcke [C.A.], 1891, 2 Ch. 554. It is not at all necessary that
the person enjoined should be standing in the legal shoes of
the covenantor.
An argument which might at first sight seem plausible
would bring us to a different result. Law says that an under-
lessee is not bound by covenants in the original lease; Equity
says that he is bound; the Judicature Act says that when
1 8 Q.B.D. 403.
XII /// re Nisbet and Potts Contract 169
there is any conflict between the rules of Law and Equity the
rules of Equity are to prevail, therefore, he is bound. But we
have seen the danger of this very rough reasoning. There
was no conflict — equity was but supplementing the law,
adding a liability founded on notice to the liabilities created
by the legal doctrines about covenants running with the land.
It has been, and still is, so hard for a purchaser of land to buy
without constructive notice of all covenants affecting the land ;
it has been, and still is, so next to impossible for an under-
lessee to have no notice of the covenants contained in the
original lease — that we may easily come to the notion of an
equitable obligation running with land in the same way that
the burden of a covenant may run with land. But every now
and then, owing perhaps to some ingenious fraud, arises the
case of a bona fide purchaser or lessee getting the legal estate
for value and without notice, and then we may see that the
land or the purchaser's interest in the land is not bound by
the covenant, that the covenant does not really run with the
land. The very difficulty that there is of purchasing without
notice makes it all the more necessary for us to insist on the
abiding difference that there is between a legal and an
equitable right in land.
A turning point in this doctrine is Sir George Jessel's
judgment in London and South Western Railway Company v.
Gonun, 20 Ch. D. 562. He there suggested (at page 583) that
the doctrine of Tnlk v. Moxhay might be treated as an
extension in equity of Spencer s Case or of the doctrine of
(legal) negative easements. In the latter case an equitable
estate would be subject to it.
The last extension of the doctrine is to be found in the case of
In re Nisbet and Potts' Contract, 1905, i Ch. 391, Farwell J.,
affirmed in the Court of Appeal, 1906, i Ch. 3t)6.
In 1872 X conveys a farm to A in fee. A covenants not
to build within 30 feet of a certain road.
Sometime or another B enters as a squatter (disseisor or
abator'), remains in possession, and in 1890 sells and conveys
to C. At this time neither B nor C knows of the covenant.
In 1903 C sells to D, and by the conditions of sale the title
^ For this distinction see Challis, Laiv oj Kcal rropeily, 2nd edition, p. 207.
170 Lectures on Eqiuty Lect. XI I
was to commence with the deed of 1890. Someone on behalf
of X (or of those who stand in the shoes of X) gives warning
to D of the covenants. D declines to fulfil the contract of
sale. Is he bound to fulfil it }
Remember how the Statute of Limitations operates (3 and
4 Will. IV, c. 27, amended by the Real Property Limitation
Act, 1874). The action to recover the land is lost and then
the former owner's right is extinguished, not conveyed to the
now possessor.
Can this negative covenant be enforced against B the
disseisor before time has run in his favour.? Yes. And after?
Yes. He is not a bona fide purchaser for value. He is held
bound because the rule is being stated thus, ' all occupiers are
bound except the man who has purchased for value in good
faith and without notice actual or constructive.' Thus the
negative covenant is put on a level with an easement — though
one subject to a peculiar exception, viz. that it is destroyable
by a bona fide purchase for value with the legal estate.
But was not C a bona fide purchaser without notice ? C
had no actual notice. What of constructive notice? Yes, it
is there said, he had constructive notice. If he had bought on
an open contract he would have had the right to a 40 years
title, and a title under the Statute of Limitations would not
have been forced upon him. He 'must take the consequences.'
As to the burden of proof see Farwell J. in the court
below, at page 402. ' The plea of purchaser for value without
notice is a single plea, to be proved by the person pleading it.
It is not to be regarded as a plea of purchaser for value, to be
met by a reply of notice..., It is therefore for the vendor
(Nisbet) to prove that he had no notice from the prior deeds,
and he can only do this by producing such deeds.'
The burden of proof is thus thrown upon the person who
asserts that he has no notice. Equity in its dealing with
restrictive covenants began at the opposite end to this^
Note, too, that this equity is enforced against one who is
not a party to the transaction creating the equity, and who
does not claim through or under any party. A curious class
of negative easement is here created.
^ Attorney Generals. Biplwspliated Gnaiio Co., 11 Ch. D. 327.
LECTURE XIII.
THE REMEDIES FOR BREACH OF TRUST.
In considering the nature of equitable estates and interests
we have partially answered a question to which we ought now
to turn ; namely, what are the remedies for a breach of trust ?
Now if a trustee in breach of trust has alienated the trust
property, in general the best remedy that the cestui que trust
can wish for is that he should be able to recover that property
from the person who is holding it. Fraudulent people are apt
to be impecunious people and a merely personal remedy
against the trustee who has been guilty of a fraud is apt to be
of little value. Therefore the cestui que trust will be anxious to
recover the trust property, let us say the land from its present
possessor. But can he do so ? Already we have an answer.
He can recover it from one to whom the trustee has given it
without valuable consideration, he can recover it from one
who purchased it with notice of his equitable rights unless
indeed it had already passed through the hands of one who
had obtained the legal estate bona fide, for value and without
notice; again his equitable right will, as a general rule, prevail
against any merely equitable right which is posterior to it in
order of time. On the other hand if once the land has passed
to a person who obtained the legal estate bona fide, for value
and without notice, cestui que trust will not be able to get back
that land again, unless indeed by some chance it should come
into the hands of the guilty trustee.
Failing this remedy the cestui que trust c^x\ proceed person-
ally against the guilty trustee. For every breach of trust
there is this personal remedy against the trustee — the trustee
is bound to restore the trust fund or trust property that has
172 Lectures on Equity Lect.
been alienated, or has perished, or has been deteriorated owing
to a breach of trust, and the courts are severe — I must not go
into details — in taking accounts against trustees who have
misconducted themselves ; in charging them with interest, in
holding them liable not merely for what they have received,
but also for what they might have received, but for their wilful
default. But it will sometimes happen that a cestui que trust
will have a somewhat better remedy than this merely personal
remedy against the trustee.
To this remedy we ought to give a moment's attention — it
is known as following the trust fund. Suppose that T holds
a fund upon trust for A, and in breach of trust invests this
fund, or rather the money produced by selling this fund, in
the purchase of land, of which he obtains a conveyance in his
own name. A can now say that the trust fund is represented
by that land — he can obtain that land from T. Even if T be
bankrupt A can, if I may so speak, pull this piece of land out
of T's estate, and say 'No this is not part of the fund divisible
among T's creditors, it is mine, bought with my money.' If
T sells that land or gives it away, then A's power to obtain
that land depends on considerations of which we have already
spoken at some length. A is treated as having an equitable
estate in that land ; the question whether he can enforce that
estate against X, the person now holding the land, raises the
questions with which we are familiar : — Has X got the legal
estate .-• Did he obtain it bona fide, for value, without notice?
Does he claim under one who obtained it bona fide, for value,
without notice, and so forth ?
But — and this may be a newer point to you — a cestui que
trust is also allowed to follow money into investments or into
the hands of the trustee's banker. T is a trustee for A of a
plot of land, or of a sum of Consols. Wrongfully, and let us
suppose it, with dishonest intent, he sells that land or that
fund of Consols for ;^iooo — this sum is paid to him in cash or
in bank notes. Now of course in one sense A will not be able
to follow the coins or the notes. A third person will be per-
fectly safe in receiving those sovereigns or those bank notes,
unless indeed he is a participator in the trustee's fraud. But
suppose that the trustee on having received the money or the
XIII Following Tinist Fwicis 173
notes at once goes and buys with them a number of shares in
the Great Northern Railway Company — can A lay hold of
those shares, and say 'They are mine' ? Can he do so if the
trustee is bankrupt, or will those shares form part of the
trustee's estate and be divisible among all his creditors ?
We may complicate the question by supposing that T sells
the Great Northern shares and bu}'s a Great Eastern deben-
ture, and then sells the Great Eastern debenture and buys
shares in the Cambridge Water Works. Can A, when T is
bankrupt, point to those Water Works shares and say, ' They
are mine, bought with my money — I trace my fund from
investment to investment and I find it here,' There is no
doubt that in all these cases the cestui que trust is allowed to
pursue the fund from investment to investment and to claim
it in whatever shape he finds it.
We get the idea of a trust fund as a thing, an incorporeal
thing, which can be invested, that is dressed up in one costume
or another, but which remains the same beneath all these
changes of apparel : and that idea suffices us in many cases.
But I have been putting simple cases and the courts have
gone much further than this in enabling a cestui que trust
to follow the trust fund. In the cases that we have put we
have supposed that the trustee does not mix up the proceeds
of the trust fund with his own money. But very often this
may happen. He sells, let us say, a trust estate or trust fund
for ;^iooo and then we find him investing a sum of ;^2O0O in
the purchase of railway shares or the like. Or perhaps we
find that he pays in the ^looo to his own account at his
bankers, where already he has a credit, and he then proceeds
to draw various cheques on that account and to pay them to
various tradesmen as the price of articles that he has bought.
Even in such cases as these the cestui que trust has been
allowed to follow the trust fund. Take the former, the trustee
sells the trust fund for ;;6^ICK)0 and with ^^2000 he purchases
land, or he purchases shares in a company ; it is considered
that as against the trustee and the creditors of the trustee the
cestui que trust has a charge, a specific charge, on the land or
the shares for the sum of ;^iooo. Take the second case, the
trustee pays the iJ'iooo, the proceeds of the trust fund, to his
174 Lectures on Equity Lect.
own account at his bankers — in other words he lends the
;^iooo to his bankers — and then he pays in other money to the
same account, and then he begins drawing out sums of money
from this account and paying them to tradesmen and the like.
It has been contended that in such a case, a rule known as the
rule in Clayton's Case, a rule which is certainly applicable for
certain other purposes, ought to be applied, and that the items
on the two sides of the account should be set against each
other in the order in which they occur. Let me explain — T
had an account with his bankers which showed a credit to the
amount of .^500. He then paid in ;^iooo which was trust
money, and then ^350 which was not trust money. Then he
drew several cheques amounting in all to ^^"750 — the result is
that he has now a credit of i^iooo. The cestui que trust now
begins his action ; if we suppose that the trustee draws out
first the moneys which he pays in first, then ^250 of the cestui
que trust's money (if such we may call it) is gone. But this is
not the rule. The rule as laid down by Jessel M.R. in the
case of In re Halletfs Estate, 13 Ch. D. 696, is that neither
the trustee nor his creditors, who stand in his place, can be
heard to say that he acted dishonestly, that he drew out and
spent upon his own purposes the trust monies which were
standing to his account. It must be taken that his cheques
were drawn against his own money, and the cestui que trust
will have the first claim to any balance that the account may
show.
The rule in Clayton's Case, i Mer. 572, is a rule which was
evolved for the purpose of settling the liabilities of partners in
banking firms. X banks with a firm of A, B and C (not being
a corporate body); his account shows a credit of ;!^iooo; at
this moment C dies : A and B continue the business and X
banks with them ; X pays in ^500; then draws out ;^500;
then the bank breaks and A and B are insolvent ; C's estate
is solvent; X wants to know how much he can claim from C's
estate. When C died A, B and C owed X .^looo. We con-
sider that C (or his estate) incurs no new liability. In such
a case we follow the chronologic order of the payments, for
the purpose of settling the liability of the continuing and the
departed partners. By the rule in Clayton's Case the items
XIII The Rule in Claytoiis Case 175
drawn out are attributed to the earliest items paid in and not
to the last items nor merely to items paid in to the surviving
partners. Consequently the i^SOO drawn out goes to reduce
the ;^iOOO for which alone C's estate was liable. X can
recover from C's estate only i^SOO. But between a cestui que
trust and the creditors of his trustee or trustees we do not
apply this rule: we suppose that the trustee takes for his
own purposes his own money and not the money of the
cestui que trust.
However as between various trusts the rule in Clayton s
Case is applied. I hold ;^iooo upon trust for A, ;^iooo upon
trust for B ; I pay to an account at my bank, first A's ;^iooo,
then B's £\ooQ> ; I begin drawing out for my own purposes ;
as between A and B, I am drawing against A's ^looo until
all of it is gone. See In re Hallett, 13 Ch. D, 696, at
page 726 et seq. and Hancock v. Smith, 41 Ch. D. 456.
Just let us consider the application of the rule in Clayton's
Case as between two cestui que trusts of one trustee.
T, a trustee, has an account at his bank which shows a
balance of ;^500. He pays in ij^soo of trust money held for
A. Afterwards he pays in ;^SOo of trust money held for B,
and then ;^500 of his own, and then he begins drawing out.
It is held that he first exhausts all of the ;^iooo that is his
own — then he begins to exhaust A's.
I have great doubts of the convenience of all this. It may
be hard that a cestui que trust should not have ' his ' property,
but it is also hard that creditors should go unpaid. Courts of
Equity, which in this matter have had the upper hand, have
thought a great deal of the cestici que trust, much less of
creditors. This result has been obtained under cover of the
metaphor of investment — the idea of a ' fund ' preserving its
identity during any change of investment. Equity has been
always striving to prevent the cestui que trust from falling to
the level of an unsecured creditor. T sells for 100 sovereigns
some land which he holds upon trust. He has the sovereigns
in his purse, he spends them upon a banquet, the fund is gone,
the cestui que trust is merely an unsecured creditor. Or with
those sovereigns the trustee buys a horse which dies, the fund
is represented by the carcase. But if he changes those
176 Lectures on Equity Lect.
sovereigns for some chose in action the cestui que trust has a
charge on this for the amount of 100 sovereigns or he may-
elect to take this chose in action itself as being in equity his
— an investment by his trustee of the trust funds which he,
the cestui que trust, may adopt, although it was unauthorised
or wrongful.
It is not for the trustee to dictate to the cestui que trust in
what shape he shall make his claim.
So far as regards following the proceeds of a rightful or
wrongful disposal of the property there is no difference
between the cases of an express trustee, or an agent, or a
bailee, or a collector of rents or anybody else in a fiduciary
position. As was said by Sir George Jessel in Halletfs Case,
at page 710, 'the moment you get into a Court of Equity, where
a principal can sue an agent as well as a cestui que trust can
sue a trustee, no such distinction was ever suggested ' — and
' the moment you establish the fiduciary relation the modern
rules of Equity as regards following trust money apply.'
Thus you see that the cestui que trust is no mere creditor
of the trustee who has committed a breach of trust. I lend
you ;^ioo; you buy a horse with it; if you go bankrupt I
can not claim that horse, I must take my dividend (perhaps
2d. in the pound) along with your other creditors. But if you
are a trustee for me I may be able to trace the trust fund
from investment to investment, and this even although you
have mixed it up with your own money.
We have next to notice that it is possible for a cestui que
trust to lose all or some of his remedies by lapse of time
This is a subject about which unfortunately there is now a
great deal of confused and complicated statute law. To
explain it fully would take several lectures ; but just a little
may be said. In the first place we must distinguish between
two cases — (i) the cestui que trust is seeking a remedy against
one who has been expressly made a trustee for him, or against
the representative of one who has been expressly made a
trustee for him — (2) the cestui que trust is seeking a remedy
against one who is but constructively a trustee for him.
(i) Now the old rule was that in the case of an express
trust and as between the cestui que trust and the trustee lapse
XIII Trusts and the Statutes of Limitation 177
of time was no bar. Suppose that T has undertaken to hold
land upon trust for A, T is in possession of the land, but
instead of pa5ang over the profits to A, he put those profits in
his own pocket. He may do this for lo, 20, 60 years, and yet
he will never get rid of his obligation to hold the land in trust
for A. In other words, a trustee could not acquire a title to
the property by lapse of time. You will observe that in such
a case there would be nothing that could be called an adverse
possession. The trustee's possession could not be adverse to
his cestui que trust. You could not say that the trustee was
wrongfully in possession, for by law he was entitled to be in
possession. Of course it was a quite different question
whether you could make the trustee refund all the profits
that he had wrongfully appropriated to his own use. The
rule might have been that though the trustee could never
acquire the land by adverse possession against his cestui que
trust still he could only be made to refund the profits which
he had wrongfully pocketed during the last 10 years or the
last 20 years. Such however was not the rule. The rule was
that in this case also time would not be a bar to an action
by cestui que trust against the express trustee. Thus if for
the last 40 years I had been holding land upon trust for you,
owing (let us say) to some mistake I had been appropriating
the profits to my own use and paying nothing to you, not
only would you have been able to claim the land from me,
but you would have been able to make me account for all the
monies that I had misappropriated ever since the misappro-
priation began.
Then in 1873 this rule was laid down in very positive terms
by section 25 sub-section 2 of the Judicature Act of that year.
' No claim of a cestui que trust against his trustee for any
property held on an express trust, or in respect of any breach
of such trust, shall be held to be barred by any Statute of
Limitation.' I very much doubt whether this altered the law.
I suppose that the legislature thought well to declare the rule
expressly at a moment when a new court which was to
administer both common law and equity concurrently was
being created.
In 1888, however, the current of legislation turned in
M. E. 12
178 Lectures on Equity Lect.
favour of the trustee. A section of the Trustee Act of that
year (51 and 52 Vic. c. 59, sec. 8) dealt with the matter'. It
is a compHcated section — but put very roughly its result is I
think this : —
{a) If the cestui que trust is attempting to recover property
that the trustee is holding upon an express trust, no Statute of
Limitations bars his action. Thus say that for forty years I
have been holding land and under the terms of some settle-
ment I ought to have been holding it upon trust for you, but
all the while I have been pocketing the profits instead of
paying them to you, you can still recover the land from me,
in other words, you can compel me to do my duty for the
future, my duty being to hold that land upon trust for you.
But {b) unless there has been fraud a cestui que trust can
not recover from his trustee income which the trustee has
misapplied more than six years ago, or, under certain circum-
stances, if the trust was created by deed more than 20 years
ago. For the purposes of the Statutes of Limitation a breach
of trust is for the future — if there be no fraud — to be treated
as though it merely created a debt due from the trustee to
the cestui que trust — and, as you know, the general rule is that
one can not sue for a simple contract debt after six years or
for a specialty debt after 20 years. These periods are now
introduced in favour of a trustee who has been guilty of a
breach of trust. His breach of trust is for this purpose to be
treated as creating a debt, a specialty debt if he has executed
a trust deed, a simple contract debt if no trust deed has been
executed by him ; and this debt (if in the meanwhile there
be no written acknowledgement of it) will be barred in the
one case after 20 years and in the other after six years^
But (2) we have to consider the case as it stands between
the cestui que trust and one who has purchased the property
from the trustee — one that is who is only bound by the trust
because when purchasing the property he had notice of the
trust. This case was met by the Real Property Limitation
^ This was left unrepealed by the consolidating Act of 1893, the Trustee Act,
i893.
* This paragraph must be taken merely as a general statement of the rule.
For a detailed statement see Carson, Real Property Statutes, p. 405.
XIII Trusts and the Stattttes of Lwiitatio7t 179
Act of 1833 (3 and 4 Will. IV. c. 27, sec. 25). This in effect
said that as between cesUii que trust and the purchaser of trust
property, the ordinary statutory rules as to limitation were to
apply, and that the statutory period was to run as from the
time of the conveyance to the purchaser. The ordinary
statutory period introduced by that act was 20 years. The
Real Property Limitation Act of 1874 curtailed this period,
substituting 12 years for 20. The rule therefore is that in
favour of a purchaser from a trustee time begins to run
against cestui que trust as from the date of the conveyance
— and in the normal case the limiting period is now 12
years.
One curious result is produced by these statutes.
You will remember what we have said before, that an
executor while acting merely as executor is not a trustee —
but that the will often makes the same persons executors and
trustees, and that it is often difficult in a given case to say
whether an action is that of a legatee for his legacy or that
of a cestui que trust against his trustee. Under the Act of
1888 the cestui que trust has often less time (six years) for his
action against his trustee based on a breach of trust than a
legatee has against an executor (12 years — under section 8 of
the Act of 1874).
Read In re Timmis, 1902, i Ch. 176. There the defendant
was concerned to say I am trustee, not executor. It is a
curious reversal of the old position. Our Statutes of Limita-
tion are indeed in a great mess.
The term 'express trust' used in this context is by no
means so plain as it might be. There are interesting judg-
ments on this point in the case of Soar v. Ashwelly 1893,
2 Q.B. 390, to which I have already referred you\
Let me remind you once more of the Judicial Trustees
Act, 1896. Under section 3 of that Act the Co-urt may
relieve from personal liability for breach of trust a trustee
who has acted honestly and reasonably if in the opinion of
the Court he ought fairly to be excused from such liability.
This section seems destined in time to produce a large crop
of cases.
^ Ante, pp. 76 and 77.
i8o Lectures on Equity Lect. xill
There is much more to be said about this matter ; but I
think that we have more profitable matters before us than
these Statutes of Limitation which are very complicated and, in
some points, very obscure.
Before we leave this subject we should just consider for a
moment first the possibility of criminal proceedings against
the trustee and secondly the possibility of his imprisonment
in civil proceedings.
1. As to criminal proceedings. For a trustee (properly
so called) to convert to his own use the trust property was no
crime at all until the year 1857. The Act passed in that year
was replaced by several sections of the Larceny Act of 1861.
See Stephen's History of the Criminal Latv, vol, ill. pp. 1 56, &c.;
and his Digest of the Criminal Lazv, articles 372 et seq.
Section 80 of the Larceny Act of 1861 hits the 'trustee'
who misappropriates the property of the trust, but, by the
definition given in section i, 'trustee' is limited to 'trustee
on some express trust created by some deed, will or instru-
ment in writing' and to the representatives of such a trustee
or persons upon whom the duty of such a trust may have
devolved. Section 80 therefore won't work unless the trust
has been created by writing.
Sections 75 and "j^ of the Act of 1861 hit some classes of
agents misappropriating property entrusted to their care.
For these sections the Larceny Act of 1901 substitutes more
general clauses dealing with the criminal liability of agents
and persons entrusted with property, but the trustee on an
express trust is still (by express reservation in section i sub-
section 2) left to section 80 of the old Act of 1861. Probably,
however, most other trustees are hit by the extremely wide
and general terms of the new sections in the Act of 1901.
2. As to imprisonment in civil proceedings. The Debtors'
Act of 1869 abolished imprisonment for debt except in certain
cases. One of the cases excepted is that of default by a
trustee or person acting in a fiduciary capacity and ordered to
pay by a Court of Equity any sum in his possession or under
his control.
LECTURE XIV.
SATISFACTION AND ADEMPTION.
Many of the rules which equity has added to our legal
system are rules establishing presumptions, rebuttable pre-
sumptions. They take this form — in this or that class of
transactions it is presumed that the parties, or the settlor, or
testator have or has this or that intention, and it is for those
who contend for a different intention to prove their case. They
are presumptions as to the intention of a person in cases in
which the primary rule is that the intention of that person is
to take effect. Indeed they are occasionally treated by text
writers rather as rules of evidence than as rules of substantive
law.
It is to one group of these rules that I ask your attention
this morning. And the first matter that we have to consider
is the legacy given to a creditor. The case is this: A person
A owes a debt to another person X, and this debt is not
a portion debt. That phrase 'a portion debt' I shall explain
by and by ; suffice it for the present that the debt that is owing
to X is a debt of an ordinary kind, incurred, let us suppose, in
the course of trade. Then A makes a will and by it he gives
some benefit to X, and then A dies, the debt being still unpaid.
Is X to have the benefit that is given to him by the will, and
is he also to be able to exact his debt.'* Or, on the other hand,
are we to say that the provision made for him by the will is
intended as a satisfaction of the debt and that if he insists, as
of course he may insist, on being paid his debt he can not claim
the benefit given him by the will, or can only claim a certain
part of it.
Now the rule to which our courts have come in this matter
is that if the legacy be equal to the debt or greater than the
1 82 Lectures oil Equity Lect.
debt then the legacy is intended to be a satisfaction of the
debt, and the creditor if he insists on his debt can not claim
any part of this equal or greater legacy. On the other hand
if the legacy be less than the debt the presumption is the other
way — the testator does not intend the legacy to be a partial
satisfaction of the debt. Of course it stands to reason that
a debt can not be fully satisfied by a legacy of smaller amount ;
the only question can be as to whether the legacy is to be
deemed a partial satisfaction, or satisfaction pro tanto ; and
the rule is that it is not a satisfaction /r^ tanto ; the creditor
may exact his debt and also claim the whole legacy. Indeed
the courts have not of late much favoured the doctrine of the
satisfaction of debts by legacies, and though the first part of
our rule holds good in a general way, and a legacy of an
amount equal to or greater than that of the debt is in general
deemed to be given in satisfaction of the debt, still the scope
of this rule has been narrowed, that is to say, the courts have
been very ready to find in the will an indication that the debt
is not to be satisfied by the legacy. For example, if the
testator says in his will — and very often he does — 'I direct
that my debts shall be paid,' that excludes this presumption
of satisfaction. Or again he gives to the creditor not a certain
sum of money, not a pecuniary legacy, but the residue, or
a share of the residue of his personal estate ; in this case it is
held that the gift of an uncertain sum, even though in the
event that sum proves to be larger than the debt, is not to be
deemed a satisfaction of the debt. And small differences
between the debt and the testamentary benefit have been
thought sufficient to exclude the presumption. Long ago
Sir Thomas Clarke M.R. said * I remember a case before the
Lord Chancellor where an old lady, indebted to a servant for
wages, by will gave ten times as much as she owed or was
likely to owe ; yet because it was payable in a month after
her own death, so that the servant might not outlive the
month, although great odds the other way, the Court laid hold
of that^' On the whole it is not very often that a debt, not
being a portion debt, is satisfied by a legacy ^
^ ('755) Matthews v. Matthews, i Ves. Sen. at p. 636.
. 2 For a recent instance see In re Rattcnbcrry, 1906, i Ch. 667.
XIV Satisfaction of ordinary Debts 183
Observe that the presumption of satisfaction, if it arises at
all, arises only where the debt is incurred before the will is
made. There is no presumption whatever that by my will
I intend to satisfy debts that I have not yet incurred, and
though for very many purposes a will is considered to speak
at the moment of the testator's death, is treated as being the
words that he uttered just as he was leaving the world, still
this is one of the purposes for which we must look to the date
of the will, and there can be no presumption that he intended
a legacy to be a satisfaction of a debt that did not exist at the
time when he executed the will.
For my own part I think that it would be well if our courts
had stopped here. Unfortunately, however — at least I think
it unfortunate — they have evolved a different doctrine about
one class of debts, namely, portion debts, a class that is not
very easily defined. I use the term ' portion debts ' but in your
books you will find that the doctrine of which I am about to
speak is spoken of as the doctrine concerning the satisfaction
of portions by legacies. There is no great harm in this phrase,
only you must not allow it to mislead you. We are to deal
with a case in which a father has incurred a debt of a par-
ticular kind and then gives a legacy. You must, of course,
distinguish this from a case in which a father has made a
completed gift inter vivos and then gives a legacy. The
doctrine of satisfaction presupposes that there is some obliga-
tion to be satisfied ; but a completed gift is a completed gift,
and can not require satisfaction. Thus if I establish my son in
trade, buy a business for him for ;^5000 and pay the money,
or if when my daughter marries I transfer ;^5ooo worth of
shares to the trustees of her settlement, here is a completed
gift ; if afterwards I bequeath ;^5000 or any other sum to my
son or daughter, there can in this case be no talk of satisfaction,
for there is nothing to be satisfied. Otherwise is it if when
my son starts in business I enter into a bond conditioned for
the payment of ;^5000, or if when my daughter marries I
covenant with the trustees of her settlement that I will pay
a sum of money or transfer a sum of stock to them. Here
I become a debtor, I am under an obligation, an obligation
that ought in some way or another to be satisfied, and the
184 Lectures on Equity Lect.
question may arise whether a provision that I make by my
will is meant to be a satisfaction of this obligation. Therefore
it is that I prefer to speak not of the satisfaction of portions
by legacies, but of the satisfaction of portion debts by legacies.
Mark what our case is : the existence of a debt of a
particular kind, a portion debt, followed by a provision made
in the debtor's will — this raises the question of satisfaction.
Afterwards I shall treat of the converse case where the execu-
tion of the will is followed by an act constituting a portion —
this raises the question of ' ademption,' is the legacy adeemed
by the portion?
Well, in our case of satisfaction a portion debt exists and
then a will is made. What do we mean by a portion debt?
Seemingly this, a debt incurred by a father or mother by way
of making provision for a child of his or hers, or a debt
incurred by some person who stands in loco parentis to another
in favour of that other. The doctrine of satisfaction of portion
debts does not apply in other cases. In other cases you would
have to turn to those rules about the satisfaction of ordinary
debts which have already come before us, rules which make
the satisfaction of a debt by a legacy a pretty rare occurrence.
But a debt incurred by a father by way of provision for his
child stands on a quite different footing. Here there is a
strong presumption that if afterwards the father gives by his
will some benefit to or in favour of that child, he is intending
to satisfy the debt thus incurred, either totally or partially.
This special doctrine does not apply to a debt incurred by
a husband by way of provision for a wife, or by a brother by
way of provision for a sister. It holds only where there is the
parental relation or what is called a quasi parental relation.
In all cases other than that of parent and child you have in
the very first place to consider whether the testator had placed
himself in loco parentis to the beneficiary. For this purpose
a putative father is not necessarily in loco parentis to his
illegitimate child. Lord Eldon once remarked that this rule
was hard on legitimate children, the court presuming that a
man does not intend to make two provisions for a legitimate
child while it has no such rule against the bastard. What is
meant by placing oneself in loco parentis} The only answer
XIV Satisfaction of Portion Debts 185
that we can get in general terms is that I place myself m loco
parentis to a child if I come under a moral obligation to make
a provision for that child. Nothing that could in a popular
sense be called adoption of the child is necessary — I say in
a popular sense, for adoption has no legal meaning in England.
The child to whom I place myself in loco parentis need be no
orphan, he or she may be living with his or her parents, and
may be maintained by them. It is not necessary that I should
assume or attempt to assume all those moral duties which
a father owes to his child. In short it seems enough that
I should do or say such things as would give rise to the belief
that I held myself morally (of course not legally), but morally
bound to make some pecuniary provision for that child such
as fathers make for their children. Of course it is easier to
establish such a relationship where there is some bond of
consanguinity or affinity between the two persons. It might
easily be shown that a wealthy grandfather had placed himself
/;/ loco parentis to the children of a dead son. Still no such
bond is essential, I may have placed myself //^ loco parentis to
the child of one who was a perfect stranger to me. I think
that if you will look at the cases you will agree with me that
the Court of Chancery entered on a very difficult task when it
adopted this phrase ' z>/ loco parentis!
Then the parental relation being established, there is a
strong presumption that a benefit given by the will is meant
to be a satisfaction of what I have called the portion debt.
The Court, it is said, leans strongly against double portions.
We are dealing, you will remember, with cases in which the
testator has incurred a debt before he has made his will. The
creditor of course has the ordinary right of a creditor; nothing
that the testator can do by his will can deprive him of this
right. The only question will be whether besides insisting on
this right the child can also claim the benefit given by the
will. If the benefit given by the will be equal to or greater
than the amount of the portion debt, then, as in the ordinary
case where it is not a portion debt, there is a presumption of
satisfaction ; if the benefit given by the will be less than the
portion debt, then there is here — what there is not in the case
of an ordinary debt — a presumption of satisfaction /rt? tanto ;
1 86 Lectures on Equity Lect.
which means in effect, that the child can not claim the legacy.
But further it is well settled that small differences between the
provision promised by the testator in his life time and that
made by him in his will are not sufficient to exclude the pre-
sumption. It is indeed necessary that the two provisions
should be of somewhat the same character : a covenant to pay
^1000 would not be satisfied by a devise of Blackacre, even
though Blackacre was worth more than ^looo'; a covenant to
pay ;^iooo in any event would not be satisfied in whole or in
part by a legacy of ;^iooo contingent on the happening of
a particular event ; a covenant to pay ;^iooo would not be
satisfied by a testamentary gift of an aliquot share of the
testator's personalty if the testator had by his will directed
that his debts should be paid. But I can best show you how
far the doctrine has been carried by reference to a modern
case which is instructive because great judges disagreed about
it. The case is In re Tussaud, 9 Ch. D. 363. The facts
were these: In 1867 T, on the marriage of his daughter,
covenanted with the trustees of the marriage settlement that
his executors or administrators would within twelve months
after his death transfer ;^2000 consols to be held upon the
trusts of the settlement, which were for such persons as the
wife with the consent of the trustees or trustee for the time
being should appoint, and in default of appointment in trust
for the wife for life for her separate use, then for the husband
for life, then for such children of the marriage as being sons
should attain 21 years, or being daughters should attain that
age or marry, and in default of children for the husband
absolutely. In 1871 T satisfied one half of the covenant by
paying over a sum to the trustees, so that thenceforth he was
only bound to transfer to them a sum of .^lOOO consols. In
1873 he made his will, and thereby bequeathed ;^28oo to certain
trustees in trust for his daughter for life for her separate use
without power of anticipation, and after her death for such of
her children as should attain 21 in equal shares.
This case came before Sir George J esse! M.R. There
were, you will see, very considerable differences between the
two settlements. Under the marriage settlement ;{J^I000
^ Cf. In re Lawes, 20 Ch. D. 81. and In rejaqiies, 1903. 1 Ch. 26;.
XIV Court leans against Donble Portions 187
consols was due. By the will ;^28oo was given. Under the
marriage settlement the wife had a power of appointing the
whole fund with the consent of the trustees to any person
whom she chose. Under the will she had no such power.
Under the marriage settlement the husband had a life interest,
under the will he had none. Under the marriage settlement
the wife was not restrained from anticipating her income,
under the will she was restrained. The Master of the Rolls
admitted that there were differences, he even called them
important differences. Further he said ' I strongly suspect
that what I am about to say will not carry out the intention
of the testator' — but he felt himself bound by the decided
cases to hold that those differences were not substantial
enough to remove the presumption of satisfaction. His
decision was that the wife and children must elect between
the iJ'iooo due on the covenant contained in the marriage
settlement and the ;^28oo settled upon them by the will, the
latter having been meant (according to this interpretation
which equity put upon the transaction) to be a satisfaction of
the former. The husband of course was put to no election ;
nothing was given to him by the will ; he had simply to rely
on the settlement.
However, the Court of Appeal came to a different opinion.
It said that the differences between the two provisions were
not slight, but substantial. No new principle was laid down ;
in every case a judge has to decide whether or no in his
opinion the differences are sufficiently substantial to exclude
the presumption. I have mentioned this case because we may
well say that when the Court of Appeal overruled Jessel M.R.
the case was very near the border line.
In this case it was allowed in both courts that differences
sufficient to exclude the presumption of satisfaction might well
be insufficient to exclude the converse presumption of ademp-
tion. Let us turn to the doctrine of the ademption of legacies
by portions.
First let us notice that the term ademption often occurs in
another context. We often hear of the ademption of specific
legacies by the alienation or the destruction of the subject-
matter of the legacy. I give you in my will my black horse
1 88 Lectures on Equity Lect.
Dobbin or my copy of Coke upon Littleton, I sell the horse
or the book, the horse dies or I lose the book. In such a case
the legacy is adeemed ; you can not call upon my executors to
pay you the value of the horse or of the book — you will get
nothing at alP. Well it is in a somewhat similar sense that
we talk of a legacy being adeemed by a portion. By my will
I give my son Thomas a legacy of ;^iooo, then on his marriage
I pay or I covenant to pay a certain sum to him or to the
trustees of his marriage settlement, or I buy him a business,
or without buying him a business I make him a present of
money. Here the question of ademption is raised, just as it
is raised if I bequeath you a particular horse and then sell
that horse to another. It is the question whether that legacy
to my son is or is not to take effect, is or is not to be struck
out of my will.
Now in this case the so-called leaning against double
portions has been allowed a great scope. Notice first that it
only takes effect where the person making the two provisions
is the parent of or stands in loco parentis to the beneficiary.
In the second place it is not every gift, every provision made
by a parent for the benefit of his child, that is a portion.
I think that a portion implies something that having regard to
the circumstances of the parties may be called a substantial
provision. If I had left my son a ;^ 10,000 legacy, he would
not be called to account for every five pound note that I gave
him on his birthday. On the other hand the term portion
does not imply that there is a solemn marriage settlement, or
the purchase of a business or an estate — any considerable gift
of money might be regarded as a portion (see Leighton v.
Leighton L.R. 18 Eq. 458). Then again you will observe
that in this case we have not to distinguish between completed
gifts and obligations. By my will I bequeath ;^iooo to my
daughter. On her marriage I actually pay over ;^ 10,000 to
the trustees of her marriage settlement, or I covenant that I
^ For an instance of the application of this doctrine even to an appointment
under a special power, see Jn re Dowsett, 1901, i Ch. 398. There a testator,
having a special power of appointment, by his will appoints Blackacre to an
object of the power. Later Blackacre is bought by a company under statutory
powers of com|Julsory purchase. The appointment by the testator is held to fail.
And see In re Slater, 1907, i Ch. 665.
XIV Ademption of Legacies 189
will pay them ;^io,ooo. In either case the presumption of
ademption will arise. This marks off ademption from satis-
faction, two things which are somewhat easily confused.
Satisfaction, as I have already said, presupposes an obligation
— there must be something to be satisfied, and a completed gift
leaves nothing to be satisfied. But a legacy may be adeemed
either by a completed gift or by the acceptance of an obliga-
tion— by a settlement or by a covenant to settle. You should
notice this distinction, for many of the rules which apply to satis-
faction apply also to ademption. We must, however, say that
the presumption in favour of ademption is somewhat stronger
even than the presumption in favour of satisfaction. A legacy
can be adeemed by a gift or a covenant to give an equal or a
greater sum, it can be adeemed pro tanto by a less sum.
Indeed some time ago the rule was held to be that a legacy
might be totally adeemed by a less sum. Observe this, for it
brings out once more a difference between satisfaction and
ademption. Of course I can not wholly satisfy a debt of ;^ioo
by a legacy of ;^50. But by my will I have bequeathed to
my son ;^iooo; I then give him ;^500. Here it is, or rather
was, quite possible to contend that by giving ^^500 I had
shown an intention that that should be my son's portion, and
that he should take it in lieu of the provision made for him b)-
my will. That contention, after having been considered sound,
was overruled by the case oi Pyni v. Lockyer, 5 My. and Cr. 29,
which decides that a smaller portion will be deemed an ademp-
tion of a larger legacy pro tanto, but pro tanto only. You
understand me? In the case just put I bequeath ;^iooo to
my son and then give him ^500 by way of portion, he will on
my death be able to demand another ii^500. I have adeemed
half of the legacy but not the whole.
The two provisions even in the case of ademption must
have somewhat of the same character. A bequest of ;^ 10,000
was not adeemed by a subsequent settlement of a beneficial
lease. But very considerable differences — at least I should
have called them very considerable — between the two pro-
visions will not exclude the presumption. You will remember
the case of In re Tussaiid. The Court of Appeal seems to
have thought that had that case been one not of satisfaction
190 Lectures on Equity Lect.
but of ademption, the result would have been different. A
legacy to a daughter may well be adeemed by a settlement
which gives her only a life interest with a subsequent life
interest for her husband, and settles the corpus on the children
of the marriage. ' In a case of ademption ' said Cotton L.J.
(9 Ch. D. at page 380) ' where the will is first, that is a revoc-
able instrument, and the testator has an absolute power of
revoking or altering any gift thereby made. But where the
obligation is earlier in date than the will, the testator when he
makes his will, is under a liability which he cannot revoke or
avoid. He can only put an end to it by payment, or by
making a gift with the condition, expressed or implied, that
the legatees shall take the gift made by the will in satisfaction
of their claim under the previous obligation. It is therefore
easier to assume an intention to adeem than an intention to
give a legacy in lieu or in satisfaction of an existing obliga-
tion'.'
In re Ftirness, 1901, 2 Ch. 346, a testator by his will made
in 1885 gives ;^20,ooo to his daughter directing that ^15,000
shall be settled on certain trusts for her and her children. On
her marriage in 1893 he settles ;^7300 consols upon her and
her children, but the trusts are not the same. It is indisputable
that as regards her interest there is ademption pro tanto, the
question is whether it is to be treated as in ademption of the
settled ;^i 5,000 or of the unsettled ;^5ooo. Joyce J. holds
that it is in partial ademption of the former. The case
shows the strength of this presumption.
In re Smythics, 1903, I Ch. 259, is a good case to illustrate
the doctrines of ademption. It was the case of a legacy of
i^500 upon trust for a great niece of the testator and a subse-
quent voluntary settlement of exactly the same sum. It was
decided that there was no ademption because there was no
parental relationship.
Lastly note that these presumptions of satisfaction or
^ A bequest of a share of residue will not be deemed to be in satisfaction of an
obligation, but such a bequest if made to a child will be presumed to be adeemed
jpro tanto by a subsequent portion given. The advance must be brought into
hotchpot. The rule is designed to produce equality among children ; see Meiner-
tzagen v. Walters, L.R. 7 Ch. 670, and In re Heather, 1906, 2 Ch. 230.
XIV Cases on Ademption 191
ademption are but presumptions, and can be rebutted by
parol evidence of the settlor's or testator's intention. Seeing
two provisions made by a father for one of his children, Equity,
in accordance with the rules that we have tried to state, pre-
sumes that he did not mean to give that child two portions ;
but then you may produce evidence to show that on the
contrary, he did mean to give two portions. This point also
is illustrated by the case oi In re Tussaud^. An affidavit was
there tendered to prove that the testator had used expressions
indicating that he did not intend that the legacy in his will
should be a satisfaction of the obligation to which he was
subjected by his daughter's marriage settlement, and that
affidavit was received in evidence. Then of course if evidence
be thus let in to rebut the presumption, evidence will be
received to support the presumption, to show that a decision
in conformity with the presumption will really carry out the
intention of the testator. On the other hand you can not
produce external evidence, evidence outside the documents, in
the first instance in order to raise the presumption. If for
example a man covenanted to settle £ looo upon his daughter,
and then by his will devised Blackacre to her, here the pre-
sumption 01 satistaction would not arise, and you could not
produce external evidence to show that the testator had
intended his daughter to take Blackacre in lieu of the ;^iooo.
1 9 Ch. D. 363.
LECTURE XV.
ADMINISTRATION OF ASSETS, (i.)
Among the departments over which equity is said to have
exercised an exclusive jurisdiction it was usual to mention the
administration of the estates of dead persons, and by the
Judicature Act of 1873, section 34, the administration of the
estates of deceased persons is one of the matters which is
assigned to the Chancery Division of the High Court of
Justice. But it will strike you at once that the exclusive
jurisdiction of equity in this matter must have been of a
somewhat different kind to its exclusive jurisdiction in matters
of trust. For of the trust a Court of Common Law would
take no notice at all ; on the other hand the Court of Chancery
in administering the estate of a dead man was, at least to a
very large extent, giving effect to rights which were perfectly
well known to other courts. The creditor's right to sue the
executor or administrator of his dead debtor was a right
known to and protected by the Courts of Common Law ; it
would be enforced by an action of debt or of assumpsit and
judgment would be given that the defendant should pay the
sum due to the plaintiff out of the assets of the testator or
intestate ^ In some cases too, as you know, the creditor
would be able to sue the heir, and under the Statutes 3 and 4
^ Notice the decisions that such a judgment de bonis testatoris operates as a
conclusive admission of assets, with the result that unless at the time of that
action he has pleaded either plejie adviinisiravit or pletie admimstravit praeler
the executor will have to pay the debt as well as the costs even out of his own
assets. See e.g. In re Marvin, 1905, i Ch. 490, and Williams on Executors,
loth ed. p. 1583 et seq. Even if he fails to prove either plea he, by the plea,
limits his liability to the assets. Here is a solemn jugglery.
XV Administration in Chancery begins 193
W. and M. c. 14 he might sue the devisee of his debtor. As
to the legatee he, it is true, had no action in a Court of
Common Law. From of old the enforcement of the last will
of the dead man had been a matter for the ecclesiastical
court; still in the ecclesiastical court the legatee would find a
tribunal which would compel the executor to pay the legacy.
It may seem then that there was little reason why the Court
of Chancery should interfere in this matter.
But interfere it did. Already in Elizabeth's day a legatee
instead of going to the ecclesiastical court will sometimes file
a bill in Chancery; by this time the ecclesiastical courts have
grown too feeble to protect themselves. It may be that the
cases in which the Chancery first interfered were cases in
which the legatee was not a mere legatee but was also a cestui
que trust. But at any rate the Court of Chancery soon became
the regular court for actions by legatees. Then again the
creditor had often an occasion to go thither. He had no
specialty, or no specialty that bound the testator's heir, and
the testator's personal estate was inadequate for the payment
of his debts ; on the other hand the testator, being an honest
man, had devised his real estate to X and Y upon trust to
pay his debts. Here the creditor wanted the aid of a Court
of Equity because he wanted to enforce a trust. Thus in
one way and another the Court obtained a footing in this
field and gradually it subdued the whole province of adminis-
tration. It had a machinery for taking accounts; it could
call upon all the creditors of the deceased to come in and
prove their debts and then by its injunctions it could prevent
the creditors from suing in any other Court. At the instance
of a creditor, or of a legatee, or of the personal representative
of the dead man it would decree that the estate should be
administered by the Court ; it took upon itself the duty im-
posed upon the personal representative, and called upon all
creditors to come in and distributed the estate in accordance
with the rules of law and equity. Of law, I say, and equity —
for some of the rules that it had to apply were old legal rules,
while others were new rules of its own invention to which it
came gradually in the course of its business as an administrator
of estates.
M. E. 13
1^4 Lectures on Equity Lect.
Now of these rules I intend to speak briefly; and first we
must consider the various kinds of debts. Of course the main
distinction that meets us directly we think of the debts of a
dead man is this, that some of them may be secured debts
while others of them may be unsecured. By a secured debt
we mean this, that the creditor, besides having a personal right
against the debtor, has some mortgage or charge upon a
specific portion of the debtor's property. For instance he
has a mortgage on Blackacre, a bill of sale of certain chattels,
a charge upon a certain trust fund. Then of course he has
some means of availing himself of this security. Thus in the
case of a mortgage of Blackacre he probably has several
different remedies open to him ; he can enter on Blackacre
and take the rents and profits, he can sell Blackacre, he can
foreclose the mortgage — to use a common phrase, he can
realize his security.
Now the chief thing that we have to notice in this
region is an old rule of equity about the rights of a creditor
who has a security, but an insufficient security for his
debt. A dies owing X ;^2000 and this debt is secured by
a mortgage of Blackacre. X realizes his security; he sells
Blackacre, but the sale produces only iJ"iooo. Well of course
X is still entitled to be paid another ;!^iooo and if A's estate
is sufficient for the payment of all his debts then X will get
that other ;^iooo. But suppose that A's estate is insolvent,
X will certainly be entitled to something besides the ;^iooo
that he got out of Blackacre. It would I think be natural to
say that X's right is to prove against the testator's estate a
debt of ;^iooo, and take a dividend, whatever it may be, say
five shillings in the pound, proportional to that debt of ;^iooo,
for ;^iooo is what is due to him after Blackacre has been sold.
Now that was the rule to which the Court of Bankruptcy came
in the administration of the insolvent estates of living persons.
Its rule was this, the creditor with an insufficient security may
do one of two things ; he may abandon his security (abandon
Blackacre) and prove for his whole debt (prove for £2006), or
he may realize his security and prove for what still remains
due to him after such realization — thus in the case I have put
he may pocket ^looo, the price of Blackacre, and then claim
XV The Rule in Mason v. Bogg 195
a dividend on the other ;^I000 which still remains due to him.
But the Court of Chancery in its administration of the estates
of dead persons came to another rule, usually known as the
rule in Mason v. Bogg^. The mortgagee may realize his
security and may also prove against the general estate for
the whole of his debt, provided always that he is not to
get more than twenty shillings in the pound. Thus in
our case X might keep the i^iooo that he gets from the
sale of Blackacre, and then he may also prove against the
general estate of the dead man for the whole ;i^2000; but of
course he is not to get in all more than the whole debt, the
whole ^2000 that is due to him. This rule may seem to you
unjust, and it has seemed unjust to Parliament; it seems to
favour the secured creditor unduly at the expense of un-
secured creditors. However you can see that there was a
certain logic in it. The mortgagee has two distinct rights,
the right in personam, the personal right against the debtor,
and the real right, the right in Blackacre. Why should he
not use both of these .■' Why should the fact that he has used
one of them, hamper him when he desires to make good the
other. He sells Blackacre, well and good ; but the dead man
owed him ;^2000, why should he not prove against the dead
man's estate for the whole of this debt.-' However it is need-
less now to consider whether or no there was much justice in
this reasoning, for a section of the Judicature Act of 1875
— section 10 — declared in effect that in the administration of
the estates of dead persons the bankruptcy rule was to prevail
as between the secured and the unsecured creditors. To this
section I shall have to return hereafter; meanwhile (for this
v/ill save us trouble and I have a complicated story to tell) I
will ask you to remember the rule in Mason v. Bogg.
We can now leave the treatment of securities out of
account, and looking at debts merely as debts we have to
notice that the debts of a dead man are not all of equal
rank. In the administration of his estate out of Court and
by his personal representatives the debts may, I believe, be
ranked according to the following order-.
1 (1837) 2 My. and Cr. 443 (45 R.R. iii).
2 In strictness this order applies only in the administration of legal assets. Until
13 — 2
ig6 Lectures on Equity Lect.
1. Debts due to the Crown by record or specialty.
2. Debts to which a priority has been given by certain
particular statutes, e.g. debts due to a friendly society by its
officers, and regimental debts.
3. Debts due upon judgments obtained in courts of record
against the dead person. These are to be paid rateably inter
se\
4. Recognizances, and (could these ever occur now-a-
days) statutes staple and statutes merchant — that is to say
debts acknowledged with certain formalities prescribed by
ancient statutes which have long become obsolete.
5. Debts due upon judgments recovered against the
executor or administrator, whether registered or not, and
whether recovered in respect of specialty or of simple contract.
These are payable according to priority of date".
6. Debts due upon specialty or simple contract.
You will remember that until the year 1870 specialty
debts had a preference over simple contract debts. Hinde
Palmer's Act (32 and 33 Vic. c. 46) threw them together.
What is the exact position of a simple contract debt due to
the Crown is somewhat doubtful. The old order used to be,
specialty debts, debts due to the Crown upon simple contract,
other simple contract debts. The Act of 1869 says nothing
about the Crown — is the result of it that simple contract
debts due to the Crown now rank in the very high place
assigned to specialty debts due to the Crown .-• This seems
doubtful, and is not very important. However in 1897 it
was decided that a simple contract debt due to the Crown
has preference over ordinary simple contract debts but not
over specialties^
an order is made for administration in the Chancery Division or in Bankruptcy
under s. 125 of the Banlcruptcy Act of 1883 the executor must follow these rules.
See per Lindley L.J. in /« re Hargreaves, 44 Ch. D. 236, at p. 242.
^ Until the Land Charges Act, 1900, s. 5, registration was necessary in order
to give the judgment priority (under the Act of i860, 23 and 24 Vic. c. 38, ss. 3
and 4). Apparently now the judgment debt stands as it did before that Act. Sed
quaere.
^ In re Williams's Estates, L.R. 15 Eq. 270.
2 Bentinck v. Bentinck, 1897, i Ch. 673. But quaere whether the Crown's
simple contract debts would not now be held to have preference over specialties
also; see In re Samson, 1906, 2 Ch. 584, at p. 592.
XV The Ranking of Debts 197
7. Voluntary covenants and bonds. These are usually-
placed last. But at law they were of equal validity and ranked
with other specialties. But Equity in its administration
postponed them to all obligations incurred for valuable con-
sideration ^
Now we ought to observe the character of these rules.
At least in the main, they are legal, they are common
law rules, though modified by statute. They mean this,
that an executor or administrator ought to pay the tes-
tator's debts in a certain order and that if he pays them
out of this order, he is answerable, personally answerable,
for any loss that he may thereby inflict upon any creditor.
Suppose, for example, that an executor pays away the whole
of the testator's assets in satisfying simple contract debts, and
then a creditor with a bond makes his appearance ; under the
law as it stood before 1869 the executor was himself liable to
pay that bond debt; and even now the case is the same if the
creditor who thus makes his appearance instead of having a
bond debt has a judgment debt. In paying a debt of a lower
order while a debt of a higher order is outstanding an executor
commits the legal wrong known as a devastavit, he has been
guilty of wasting the estate of his testator. Now-a-days under
a statute of 1859 (22 and 23 Vic. c. 35, sec. 29) an executor or
administrator has power to protect himself by issuing adver-
tisements calling upon the creditors of the dead person to
send in their claims; but still you should understand that an
executor or administrator does wrong in paying a debt of a
lower order while a debt of a higher order is yet outstanding,
and should he do this without issuing the proper advertise-
ments, and should the estate of the dead man prove insufficient
for the satisfaction of all his debts, then the executor will have
made himself liable, liable in a common law action, to the
privileged debtor whose privilege he has ignored. Here of
course we may find one strong reason which drove executors
and administrators to seek the protection of the Court of
Chancery and as the phrase went to 'throw the estate into
Chancery ' and thereby shuffle off their risky duties.
1 Payne v. Mortimer, 4 De Gex and Jones, 447, and In re Whitaker^ 42 Ch. D.
119, at p. 124.
198 Lectures on Eqjiity Lect.
Then within each of these classes of debts that I have
mentioned there was in general no priority whatever — thus
among the specialty creditors of the dead man the executor
might single out one of them and pay him in full, though this
payment would exhaust the assets and thereby deprive the
other specialty creditors of their remedy. And at the present
day the executor or administrator may still do this, he may
prefer one creditor to another, he may do so at any time
before the Court has given judgment for the administration of
the estate, even though an action for administration has been
commenced^ Here was another strong motive for administra-
tion suits in the Court of Chancery. A creditor who feared
that the executor was going to prefer some other creditor to
him would make haste to obtain a decree that the estate
should be administered by the Court.
A corollary of this doctrine that an executor or adminis-
trator may prefer one debt to another of equal degree is his
right to retain for his own debt. If he may prefer a creditor
and he himself is a creditor, he will very naturally prefer
himself. He might prefer his own debt to any debt of equal
degree, but he could not prefer it to a debt of a higher degree.
Of this right of retainer or self-preference he was not deprived
even by a decree declaring that the estate was to be ad-
ministered by the Court. At any time before the distribution
of the estate he might claim payment of his debt in preference
to debts of equal degree.
Now the rules which instituted what we may call a
hierarchy of debts, rules developed in Courts of Law, were
from time to time taken over by the Court of Chancery
when it had begun to concern itself with the administration
of estates. It would do what a personal representative ought
to do, it would respect the legal order of debts. Within
each class it would pay creditors rateably — that is to say,
if there was not enough for the whole class it would pay
each member of it a dividend proportional to his debt ;
but the hierarchy of debts it would respect. However
in course of time the Court found that it sometimes had
1 For a statemeiu of ihe leaboiis for this lule see In re Hamsoii, iyo6, 2 Ch.
584, at p. 594.
XV Equitable Assets 199
property to distribute among the creditors to the distri-
bution of which these legal rules had never been applied.
Thus a testator devised all his real estate upon trust for the
payment of debts— here was property available for distribution
and yet it was property which either was not vested in the
personal representative of the dead man, or if it was vested in
his executor was vested in him not qua executor but qua
devisee. Here equity could neglect the old rules — it could
say, and did say, that an equal or rather a proportional distri-
bution among all the creditors was the fairest mode of
distribution. It had come by certain property which could
be called equitable assets as opposed to legal assets; it could
say that these equitable assets should be distributed without
regard to the legal rank of debts, it could even forbid the
executor to give himself an advantage by retaining his own
debt out of these equitable assets.
What are equitable assets? The accepted definition seems
to be: — Equitable assets are property which is applicable for the
payment of the dead person's debts but which is not vested
in his personal representative, his executor or administrator,
virtiite officii. It is necessary to be somewhat careful about
this matter, for one plausible definition might lead us astray.
We can not say that equitable assets include all assets that
can not be made available without the aid of a court of equity.
Put this case, T holds a term of years upon trust for A ; A dies
having appointed M his executor; that term of years, that
interest in the land is legal assets, though it is but an equitable
interest in the land. It becomes vested in M, because he is
executor of A, that is enough to decide that it is legal assets.
On the other hand if A be legal tenant in fee simple and
devises his realty to M, upon trust to pay debts, and appoints
M his executor; then although M's estate in the land is a
legal estate it is equitable assets, for M does not take this
freehold estate virtiite officii, he does not take it as executor,
he takes it because it has been devised to him\
At the present day we seem to have two or perhaps three
kinds of equitable assets, all other assets being legal. In the
^ See the judgineiu of Kindeisley V.C. in Cook v. Gie^son, 3 Drew. 547.
200 Lectures on Equity Lect.
first place there is the oldest kind of equitable asset — it
consists of freehold and copyhold estates which the testator
has by his will either devised for the payment of his debts or
charged with the payment of his debts. And here I may
remark that in old days the Court was extremely anxious to
find in a will a charge of debts upon the real estate and that
to this day a charge of debts upon the real estate will be very
easily found. For example, if a testator says ' In the first
place I direct that all my debts be paid and then I give my
real estate to A and my personal estate to B,' this is quite
enough to charge the real estate with the payment of debts.
The reason for this anxiety will be apparent to you if you
will remember that until the year 1833 freehold and copyhold
estates were not assets for the payment of simple contract
debts or even of specialty debts unless the heir was mentioned
in the specialty — therefore unless a charge of debts could be
found in his will a testator might die leaving large estates and
yet his creditors would go unpaid. The rule of construction
which easily finds a charge of debts was begotten by these
circumstances, but it still holds good though since 1833 the
dead man's freeholds and copyholds have been assets for the
payment of all debts. Well, if there be a charge of debts on
the realty, then the realty is equitable assets. Secondly we
come to the Act of 1833 (3 and 4 Will. IV, c. 104) which made
realty assets for the payment of all debts, made, as I under-
stand it, all realty which was not devised for the payment of
debts or subjected to a charge for the payment of debts,
equitable assets, but subject to this rule that out of such
realty a creditor with a specialty binding on heirs, was to be
preferred to creditors with specialties not binding on heirs
and simple contract creditors. Then the Act of 1869 abolished
this preference — and so, as I understand it, the result is
reached that freeholds and copyholds are equitable assets
whether or no they be charged by the testator with the
payment of his debts (see Walters v. Walters, 18 Ch. D.
182). Then under the old law, I mean the law as it stood
before the Married Women's Property Act of 1882, the
separate estate which a married woman left behind her was
equitable assets for the payment of her debts — the separate
XV Marshalling Assets 201
estate, and the debt payable out of separate estate, were
purely equitable institutions. I am not aware that under the
statute which enables a married woman to have separate
property at law as well as in equity there has been any
decision as to the character of the assets that she leaves
behind her ; but that ill-drawn Act is full of traps\
It will strike you that if the dead person's estate consists
partially of legal and partially of equitable assets, there must
be considerable difficulty in adjusting the claims of the two
systems. Out of the legal assets the debts are to be paid in
order of their rank, out of the equitable assets they are to be
paid rateably without regard to their rank. The adjustment
has been effected by one branch of the doctrine — other
branches of it will come before us hereafter — which is known
as marshalling. The rule may be stated thus : — a creditor who
has obtained part payment of his debt out of the legal assets
is not to be paid anything out of the equitable assets unless
he will bring what he has received back into hotchpot. Thus
to put a case, a testator leaves ;^iooo of legal assets and
;^2000 of equitable assets ; he owes a judgment debt of ;^i20O
and simple contract debts to the amount of ;^300O. The
judgment creditor has a right to carry off in this case all the
legal assets; these will satisfy ;^iooo out of the ;^I200 that is
owing to him ; iJ"200 will remain due, but he can have no
more unless he will throw the p^iooo into hotchpot with the
;!^2000 and permit the whole ^^3000 to be divided rateably
among all the creditors. Were he to do this, instead of getting
^1000 he would get something less than i^86o, so of course
he will not do it. I might easily however have chosen figures
which would make it worth his while to abandon his prefer-
ential claim on a small sum of legal assets in order that he
might share rateably with the other creditors in a division of
a large sum made up of legal and equitable assets.
Since the Act of 1869, Hinde Palmer's Act, the rank of
^ In the MS. of the lecture there is a marginal note at this place as follows : —
•Query as to the effect of the Land Transfer Act of 1897? Apparently its
effect is to increase the legal assets.' This opinion is supported by Mr Carson
I^Real Property Statutes, p. 418). The question was raised but not decided in the
case of /« re Williams, 1904, i Ch. 52.
202 Lectures on Equity Lect. xv
debts, the distinction between legal and equitable assets, and
this doctrine of marshalling have been far less important than
they used to be — for specialties and simple contracts have
been placed on the same level; but still judgment debts have
a priority and therefore the principles with which we have
been dealing are existing law. As we shall see next time
the Judicature Acts by their so-called fusion of law and
equity did not abolish the distinction between legal and
equitable assets.
LECTURE XVI.
ADMINISTRATION OF ASSETS. (ll.)
In my last lecture I was speaking of the mode in which
legal and equitable assets respectively are applied for the
payment of debts. I ended with the remark that the section
of the Judicature Act which provides for the prevalence of
the rules of equity over the rules of the common law made
no change in this matter. There was no conflict, no variance
between the two sets of rules. Each held good within its
own sphere. And so it is now. Within the common law
sphere, i.e. in the distribution of legal assets, the rules of the
common law still prevail, while the rules of equity are applic-
able only within the equitable sphere, that is to say, in the
distribution of equitable assets.
But the Judicature Acts contained another provision that
touched our theme. The Act of 1873 had in it a certain
clause, section 25, subsection i, which dealt with the adminis-
tration of assets ; but this never came into force, for it was
repealed and replaced by section 10 of the Act of 1875, which
said that in the administration by the Court of the assets of
any person who should die after the commencement of this
Act and whose estate might prove to be insufificient for the
payment in full of any of his debts or liabilities, the same
rules should prevail and be observed as to the respective
rights of secured and unsecured creditors and as to debts and
liabilities provable and as to the valuation of securities and
future and contingent liabilities respectively as might be in
force for the time being under the law of bankruptcy.
Now this section caused a great deal of difficulty and
gave rise to many decisions. I must try to explain the
general nature of the difficulty. You will remember that as
204 Lectures on Equity Lect.
regards the rights of a secured creditor the Court of Chancery
in its administration of the estates of dead persons had come
to one rule, while the Court of Bankruptcy in its administra-
tion of bankrupts' estates had come to another rule. The
Chancery rule — it is convenient to speak of it as the rule in
Mason v. Bogg — was that the secured creditor with an insuffi-
cient security might realize that security and also prove
against the general estate for the whole of the debt, but of
course he was not to get more than was due to him, more
than 20S. in the pound. The Bankruptcy rule was less
favourable to him, therefore more favourable to the unsecured
creditors. He was put to his choice, either he might abandon
his security and prove for the whole debt, or he might realize
his security and prove for such part of his debt as remained
unpaid after the security had been realized. Now there was
no doubt at all that section lo of the Act of 1875 had in
this respect introduced the bankruptcy rule into the adminis-
tration of the estates of dead persons, and, now-a-days, when
the Court is administering the estate of a dead person this
bankruptcy rule as to the relative position of secured and
unsecured creditors prevails. But the question was whether
that section had not done far more than this, whether it had
not swept away the old rules of administration in mass and
replaced them by the rules observed in bankruptcy.
In order to explain this I must remind you that from the
very first our bankruptcy law has been statute law, law to be
found in successive Acts of Parliament, and, if I may so
speak, it has gone its own way unaffected by those rules
which courts of law and of equity applied to the payment of
the debts of dead persons not made bankrupt in their life-
time. Thus the Bankruptcy Acts have ignored that legal
hierarchy of debts of which I have been speaking ; conse-
quently they would ignore the distinction between legal and
equitable assets. As a general rule all the bankrupt's debts
were to be paid rateably, pari passu. On the other hand
certain debts to which no preference would have been given
in the administration of a dead man's estate have been ex-
pressly preferred. Section 40 of the Bankruptcy Act of 1883
set out three classes of preferential payments. This part of
XVI The Rules in Bankruptcy 205
section 40 is repealed and is now represented by section i of
the Preferential Payments in Bankruptcy Act, 1888, which is
in very similar terms. We find there a preference given for
{a) certain taxes and parochial and local rates, ib) the wages
or salary of a clerk or servant in respect of services rendered
during the last four months and not exceeding ;^50, {c) the
wages of any labourer or workman in respect of services
rendered during the last four months not exceeding £2^
(under the Act of 1883 this was ;^5o). These preferential
debts are to rank pari passu among themselves ; and then it
is said that all other debts proved in the bankruptcy shall be
^3\6. pari passK. Then again divers Acts of Parliament have
provided that in case of bankruptcy divers past transactions
may be wholly or partially avoided in favour of the creditors,
and have thus increased the assets of the bankrupt divisible
among his creditors. The Bills of Sales Acts have done this,
and you will find that the Married Women's Property Act,
1882, by section 3, did this also. If a married woman lends
money to her husband for the purpose of any trade or
business carried on by him, that money is to be treated as
assets in the case of her husband's bankruptcy, and the wife's
claim to repayment is to be postponed to the claims of all
other creditors.
Now the question occurred in a great variety of forms
whether the loth section of the Judicature Act, 1875, had
merely swept away the rule in Mason v. Bogg, or whether it
had introduced into the administration of the estates of dead
persons all these bankruptcy rules. On the words of the
section the question was a very open one, and for a while
there were contradictory decisions. Until comparatively lately
the tendency of the courts was to set a very narrow limit to
the operation of the section. In the case of In re May,
45 Ch. D. 499, you will find North J. deciding that a widow,
the administratrix of her late husband, whose estate was
insolvent, might retain out of his assets a sum of money
which she had lent him to be used in his business. Had he
been made bankrupt in his lifetime the widow would have
been postponed to all other creditors. As it was, she was
allowed to prefer herself to all other creditors.
2o6 Lectures on Equity Lect.
But in the case of hi re Heyivood, 1897, 2 Ch. 593, it was
decided that the bankruptcy preferences for rates and wages,
set out in the Preferential Payments in Bankruptcy Act of
1888, were introduced by the operation of section 10 of the
Judicature Act of 1875.
Then such cases as In re Maggi, 20 Ch. D. 545, and Smith
V. Morgan, 5 C.P.D. 337, to the effect that judgments still
have priority, are disapproved and are apparently overruled
by In re VV/iitakcr, 1901, i Ch. 9, where the Court of Appeal
decided that the effect of section 10 of the Judicature Act,
1875, is to introduce into the administration of the estates of
deceased insolvents the bankruptcy rule that voluntary credi-
tors are to be ^dJid pari passu with creditors for value.
Thus the inclination to a narrow construction has given
way to an inclination to a wide construction. All the recent
judgments of the appellate courts point this way. The bank-
ruptcy rules are introduced except those which go to augment
the bankrupt's assets as against third persons. It is well
settled that those rules apply only in actual bankruptcy. After
In re Whitaker, semble judgment debts have lost their priority
and semble also the bankruptcy preferences are admitted.
Query whether the prerogative of the Crown is not touched.
You have to know the new law and the old law too.
But I have not yet finished the story. The Bankruptcy
Act of 1883, by section 125, introduced certain quite new
provisions. A man cannot be made bankrupt after his death,
but for the first time this Act authorized the administration by
courts having bankruptcy jurisdiction of the estates of persons
who have not been made bankrupt in their lifetime. If within
three months before my death I commit an act of bankruptcy
then after my death a creditor may take bankruptcy pro-
ceedings against my estate — he may obtain an order for the
administration of my estate in bankruptcy, and if he does
this then (with considerable modifications)^ the bankruptcy
^ That which is administered is the dead man's estate, that only which passes
to his personal representatives, and subject to all liens, charges and rights of other
persons. An order under s. 125, which divests the interest of the personal
representatives, does not increase the assets to be administered or affect the rights
of third persons therein. Thus the rights of execution creditors are not affected,
Hasluck V. Clark, 1899, i Q.B. 699 (C. A.), nor does the executor who is a
XVI Order of Assets for paying Debts 207
rules come into play. Thus the executor's ri.frht to retain
debts due to himself still exists after an order made under
section 125 of the Bankruptcy Act ; and the existence of the
executor's right of retainer still necessitates a knowledge of the
hierarchy of debts and preserves the distinction between legal
and equitable assets. For you will remember that the exe-
cutor can not retain against a debt of higher rank than his
own, nor is his right of retainer available against equitable
assets. The result of this is I think very unfortunate and
very capricious. The whole law as to the administration of
the estates of dead persons sadly needs a thorough reform.
I turn to another part of our subject. We have considered
the order in which debts should be paid. We have now to
consider the order in which assets should be applied in the
payment of debts. First let us note a great difference between
these two sets of rules. Over the one a testator has no con-
trol ; over the other he has complete control. Before the Act
of 1869 it would have been no good for a testator to say ' I
declare that my executors are to pay my simple contract
debts in preference to my specialty debts,' and now it would
be of no avail for him to say that a simple contract debt was
to be preferred to a debt of record due to the Crown. On
the other hand it is perfectly competent for me to say, and
to say with effect, in my will ' My real estate is to be the
primary fund for the payment of my debts, if that be in-
sufficient then let my plate be sold, and if that be insufficient
my library,' and so forth — for in saying all this I am not
attempting to affect the rights of my creditors, I am merely
deciding as between my various legatees and devisees, what
they respectively are to have, and none of them have any
rights save such rights as I choose to give them.
The following rules therefore as to the order in which the
assets are to be consumed in the payment of debts are rules
which hold good only in so far as the dead man has not by
his will (if any) declared a contrary intention.
The executor or administrator must apply to the satis-
faction of the debts of a dead man the property which may
be available, but in the following order :
creditor lose his right of retainer, In re Rhoades, 1899, 2 Q.B. 347. And see also
7« re Mellison, 1906, 2 K.B. 68.
2o8 Lectures on Equity LEcr.
1. Personalty not specifically bequeathed, retaining a
fund sufficient to meet any pecuniary legacies.
2. Realty specifically appropriated for, or devised in
trust for (and not merely charged with) payment of debts.
3. Realty that descends to the heir.
4. Realty charged with the payment of debts.
5. Fund (if any) retained to pay general pecuniary
legacies.
6. Realty devised whether specifically or by general
description and personalty specifically bequeathed pro rata
and pari passu.
7. Property which did not belong to the dead man, but
which is appointed by his will in exercise of any general
power of appointment.
Doubt was occasioned by the case of In re Bate, 43 Ch.
D. 600, as to which ought to go first, realty charged with the
payment of debts or a pecuniary legacy. Kay J. held that
the pecuniary legacy must go first, but, semble wrongly, and
in the later cases of In re Salt, 1895, 2 Ch. 203, and In re
Roberts, 1902, 2 Ch. 834, it was decided that where a will
contains a general direction for payment of debts the pecu-
niary legatees are entitled to have the assets marshalled as
against specific devisees of the real estate.
Then note that a lapsed share of residue is not applicable
before other shares. I give all my personalty to A, B and C
in equal shares. (A, B and C are not descendants of mine —
those of you who have read the Wills Act^ will know why I
make this remark.) A dies during my lifetime, so his share
lapses to my next of kin. The three shares must contribute
equally to the payment of my debts. You are not to throw
the debts on to the lapsed share for the benefit of the other
shares. {TretJieivy v. Helyar, 4 Ch. D. 53.)
Next observe that specific and residuary devises and
specific bequests all rank together, I devise Blackacre to A,
the rest of my real estate to B, my black horse Dobbin to C
and the rest of my personalty to D. First you exhaust my
residuary personalty, Le. all my personalty except the horse.
Then the rest of my property contributes rateably, A, B and
C contribute rateably. True that the devise to B is a resid-
^ Wills Act, 1837, s. 33.
XVI Examples of the Order of Assets 209
uary devise, and you mipjht well think that whatever is
comprised in this should be exhausted before we turn to
Blackacre or to Dobbin — but that is not so. A residuary
devise is for this purpose put exactly on the same footing as
a specific devise.
Lastly note that when a dead man's own property has
been exhausted you may turn to certain property which in
strictness was not his own. If he had a general power of
appointment and exercised this power by his will then he
thereby made the appointed property part of his assets for
the payment of his debts, but a part that is only to be
absorbed in the last resort, when all else has failed. This
doctrine you must remark only applies where the power is a
general power. If under my marriage settlement I have
power to appoint a fund among my children, and I exercise
that power, I do not make the appointed fund assets for the
payment of my debts. But to make the fund assets I must
actually exercise the power. If I have a general power of
appointment and leave it unexercised, my creditors will not
be able to touch the fund.
I think that you will hardly be able to understand the
import of these rules unless you will attempt to work out a
few imaginary cases. I will suggest one or two.
A man dies intestate leaving realty and personalty. In what
order are the assets applicable for the payment of his debts ?
A testator made his will in these words — ' I give my
freehold estate called Dale to A, my leasehold house in Brook
Street to B, my gold snuff box to C, i^iooo to D, the rest of
my realty to E and the rest of my personalty to F.' [The
order will be this : F loses all, then D loses all, then A, B, C
and E contribute rateably.]
A testator, tenant in fee simple of Blackacre, Whiteacre,
Greenacre, and entitled to a leasehold house in Brook Street
and other personalty, makes his will as follows — ' I give
Blackacre to A. I declare that my debts shall be a charge
on the rest of my real estate. I give Whiteacre to B, and my
house in Brook Street to C. I give .^looo to D, all my books
to E, and the residue of my personalty to my cousins F and
G in equal shares.' G dies before the testator; the testator
M. E. 14
2IO Lectures on Equity Lect.
dies leavin^^ H his heir at law and K his sole next of kin.
Greenacre is undisposed of, there being no residuary devise.
In what order are his assets to be applied for the payment of
his debts? [The answer is this: — Exhaust the personalty
bequeathed not specifically, but as residue, to F and G (that
is the whole personalty except the books and ;^iooo deducted
for D's legacy), showing no preference to F the legatee over
K who, as the testator's next of kin, takes the lapsed share.
Next turn to Greenacre as real estate descended to the heir,
next to Whiteacre as being realty charged with debts, next
to the £\0Q0 set apart to pay D's legacy. Lastly, when
those are exhausted, the books, the house in Brook Street
and Blackacre must Qor\\.x\h\x\.Q pari passu?^
But now let me repeat once more that a testator can
upset this order if he pleases. He can direct that as between
the various persons entitled under his will this or that part of
his property shall be the first fund for meeting debts — he can
make the last first, or the first last. For example he may
say, and effect will be given to his saying, that all his real
estate is to be absorbed before his personal estate is touched.
But if he wishes that this shall be so, he must say it clearly —
a mere charge of debts on real estate will, as we have seen,
have some effect in altering the order in which the assets are
to be consumed, but it will not put the real estate thus
charged before the general or residuary personalty, and if
only part of the realty is thus charged with the payment of
debts this will not even put that part before other realty
which is not disposed of by the will and descends to the heir
as heir. There is a strong presumption that the general or
residuary personalty is to be the very first fund for the
payment of debts, and if a testator wants to put his realty
before his personalty he ought to say, not merely ' I charge
my debts upon my real estate,' but ' I charge my debts on
my real estate to the exoneration of my personalty.' For
this purpose you want, it is said, not merely words onerating
the realty, but words exonerating the personalty.
Then again it is quite possible that the order of assets in
administration may be disturbed — assets may be applied out
of their proper order in the payment of debts, i want you
XVI Mortgage Debts and Locke Kings Act 2 1 1
to perceive that the order of assets is nothing to creditors.
Before the Land Transfer Act a specialty^ creditor might, as
the phrase went, upset the order of assets. Take this case as
occurring before the Act of 1897. I had a debtor owing me a
sum of money under a deed, he died and we will suppose
that he died intestate. His real estate descended to A, his
heir at law, his personal estate vested in an administrator B
who, when debts are paid, must distribute it among the next
of kin. Well, as between heir and next of kin the personalty
was the first fund for the payment of my debt ; but that was
nothing to me. I could sue the administrator or the heir.
I chose to sue the heir, and the heir was liable to pay me to
the extent of the assets that had descended upon him. But
then, as between the persons claiming under my debtor,
comes in a principle of marshalling. It is put thus : * Where
the order in which assets are liable to pay debts is disturbed
by creditors it will be put right by marshalling.' If in the
case just put the heir paid me my debt he had a right to
claim repayment out of the personal estate.
The Act of 1897 has lessened the chances of any dis-
turbance in the established order of liability of assets through
the action of a creditor. Real estate, you remember, now
passes in the first instance to the executor or administrator
and it would seem clear that until he (as and when required
to do by the Act) assents or conveys, in the case of land
devised, or conveys in the case of land descended, a creditor
could bring no action against the devisee or heir. Still cases
in which marshalling is required may occur. To take simple
examples, the executor or administrator may perhaps fail at
first to discover some part of the personalty and may thus
apply real estate in paying debts before all the personalty
which comes under a prior liability has been exhausted ; or
he may fail to discover that the deceased was entitled to
some realty which will descend to his heir and, in ignorance
of that realty, the executor or administrator may have sold
articles specifically bequeathed, which should come after, not
^ Until that Act the specialty creditor had a direct remedy against the land, he
could sue the heir or devisee directly, the simple contract creditor had to take
administration proceedings in order to make the land liable for his debt.
14 — 2
212 Lectures on Equity Lect.
before, realty descended to the heir ; or it may happen that
after either assent or conveyance under the Act of 1897 the
devisee or heir may find a creditor making a claim against
him which should be discharged by the personal estate. The
exact effect of the Land Transfer Act upon the legal liability
of the heir or devisee must however be said to be very
doubtful.
But there remains a point that we have hitherto avoided.
In discussing the order of assets we have spoken as though
all the debts were unsecured ; but what of secured debts ?
Among the debts owed by the dead man there was one debt
which was secured by a mortgage of Blackacre. Does the
fact that this debt was thus secured make any difference
when we are discussing the question what fund is the primary
fund for its payment ? The old answer to this question was
(as a general rule) none at all. Here is a debt and it must be
paid like other debts. If the dead man has not made a will
and therein given some direction to the contrary the first
fund for the payment of his debts, including this debt, consists
of his general or residuary personalty. Put the simplest case.
He owed ^1000 upon mortgage of Blackacre, of which,
subject to the mortgage, he was tenant in fee simple. He
dies intestate. His real estate, including Blackacre, descends
to his heir at law, while his personalty will be distributed
among his next of kin. But first debts must be paid, includ-
ing the mortgage debt on Blackacre, and all his personalty
must be swallowed up in paying debts before any part of his
realty, including Blackacre, could be touched. This seemed
unfair, and by three Acts, the first of which is always spoken of
as Locke King's Act, parliament has tried to set this matter
straight. The three Acts are 17 and 18 Vic. c. 113 (1854),
30 and 31 Vic. c. 69 (1867), and 40 and 41 Vic. c. 34 (1877).
The last of these Acts says in effect that in the administration
of the estate of any testator or intestate dying after the 31st
of December, 1877, seised or possessed of any land or other
hereditaments of whatever tenure which shall at the time of
his death be charged with the payment of any sum by way of
mortgage or any other equitable charge, including a lien for
unpaid purchase money, the devisee or heir at law shall not
XVI Locke Kings Act 213
be entitled to have such sum satisfied out of any other estate
of the testator or intestate unless (in the case of a testator) he
shall have signified a contrary intention, and that a contrary
intention shall not be deemed to be signified by a charge of
or direction for payment of debts out of residuary real and
personal estate or residuary real estate.
That, at least for the time being, is the last word in the
history of a muddle. Of the earlier acts it seems only neces-
sary to say that it was discovered that owing to defective
workmanship the first Act (1854) would not apply to an
equitable mortgage by deposit of title deeds, nor to a vendor's
lien for unpaid purchase money, nor to leaseholds for years —
though the specific legatee of a leasehold was entitled to
have it exonerated at the expense of the general personalty.
The second Act declared that the word mortgage was to
include a lien for unpaid purchase money upon any lands
purchased by the testator — it corrected one omission but
made another blunder, for after testator it should have added
'or intestate,' and so a third Act was necessary. Even this
third Act is giving rise to some difficulties, and may, I think,
give rise to more. However most loopholes are by this time
stopped and we may say in pretty general terms that as
between the various persons claiming under a dead debtor
real property which forms the security for any debt is the
primary fund for the payment of that debt. A contrary
intention expressed in the dead man's will will prevail ; but
we may say that such an intention has to be clearly ex-
pressed. But these Acts, the Real Estates Charges Acts, to
give them their statutory title, have nothing to do with
mortgages or charges upon chattels or upon choses in action
or upon anything but realty passing to an heir or devisee.
Instructive cases as to what amounts to the expression of
a contrary intention are /;/ re Smith, 33 Ch. D. 195 ; In re
Fleck, 37 Ch. D. 6tj.
Let us take an illustration of the working of the rules
that we have been considering.
A is entitled as tenant in fee simple to Blackacre, of the
value of i^iooo, but mortgaged for i^500. He is entitled also
to Whiteacre, now of the value of ^800 only, but mortgaged
214 Lectures on Equity Lect. XVI
for ;^iooo; also to personalty of the value of ;^i500. He
owes unsecured debts to the amount of ;^I200. He makes
his will : he devises Blackacre to B, gives a legaey of ;^500 to
C, and bequeaths the residue of his personalty to D, He says
nothing of Whiteacre. E is his heir at law. What, if any,
part of his legacy will C obtain ?
The debts are ;i^500 secured by Blackacre + ;^iooo
secured by Whiteacre + ;^I200 unsecured. Total ;^2700.
Assets ;^i 500 + ;^iooo + ;^8oo = i^3300. The estate is not
insolvent. There is a surplus of ^600.
The mortgagee of Blackacre can get his whole ;^500, and
for this Blackacre is the first fund.
The mortgagee of Whiteacre can certainly get £Zoo by
realizing his security on Whiteacre, thus leaving a balance of
i^200 due to him.
The debts now remaining unpaid are ;^ 1 200 + ;!^200
= ;^I400.
You must begin by applying the personalty not specifi-
cally bequeathed, ;^i500, after retaining out of that ;^I500
;^500 for C's legacy. That gives you £\qqo towards the
;^I400, but it still leaves ;^400 due.
What is now left of A's estate ? ;^5oo of his personalty,
which you have retained for the pecuniary legacy, and ;^500,
the surplus value of Blackacre ; ;;^400 of debts are still
unpaid.
The competition is between B who is devisee of Blackacre
and C who has been given a pecuniary legacy. The liability
of the pecuniary legacy comes first and C can only get ;^I00
out of the ;^5oo that has been left to him. B gets his ;^5oo,
the whole balance left of the value of Blackacre. It would
have been otherwise if Blackacre had been charged with the
payment of debts. B would then have had to lose the
^^"400 and C would have got his pecuniary legacy in full.
D, the residuary legatee, and E, the heir at law, of course
get nothing.
LECTURE XVII.
CONVERSION.
The equitable doctrine of conversion is the outcome of
the fact that we have two systems of intestate succession, the
one for realty the other for personalty : but for that unfortu-
nate fact there would have been no need of this doctrine.
The Land Transfer Act of 1897 makes hardly any differ-
ence ; the land vests in the personal representatives, but the
beneficial interests are unaffected.
The equitable doctrine of conversion has its root in this
simple principle that when property has been given to a
trustee it must not be in the power of that trustee to alter
the devolution of the beneficial interests by committing a
breach of trust.
A testator devises land to a trustee upon trust that he
shall sell it, invest the proceeds of the sale, pay the dividends
of the invested fund to the testator's wife during her life and
hold the capital in trust for his son. The trustee in breach of
trust neglects to sell the land ; meanwhile during the wife's
life, the son dies and, let us say, dies intestate. Now who is
to be entitled to what was destined for the son ? On the one
hand the son's heir makes a claim, saying that what was
destined for the son was land, and that an equitable estate of
fee simple in the land has descended to him. On the other
hand the administrator claims on behalf of the next of kin,
urging that what was intended for the son was not land but an
invested fund of personalty. The court decides in favour of
the administrator. If the trustee had done his duty there
would have been no land, there would have been a fund of
personalty, which would have gone to the administrator.
2i6 Lecttires on Equity Lect.
The fact that the trustee has not done his duty must make no
difference; the land is held upon trust for the administrator.
Take the converse case. A testator leaves ^10,000 to a
trustee upon trust to purchase land and settle it to the use of
the testator's wife for life, with the remainder to the use of his
son. The trustee omits to buy any land. Meanwhile during
the wife's life the son dies, and dies, let us say, intestate ; his
heir at law shall have the money.
The root of the doctrine then is this, that a breach of trust
is not to affect the devolution of equitable interests. Had it
remained in this, its first form, the doctrine could never
have been called into operation save when there had really
been a breach of trust — save when some trustee had been guilty
of not effecting a conversion which he was bound to effect.
But the doctrine was found a convenient one and was
extended beyond the simple principle in which it had its
origin. It was discovered that settlors and testators might
sive their trustees a certain discretion as to the external form
which the property should take, i.e. whether it should be land
or money, and at the same time make the devolution of the
equitable interests independent of any exercise by the trustees
of their discretion. For example it often happens that a
testator wishes the whole of his property to devolve in one
way ; he has some freehold land, but he does not wish ' to
make an eldest son ' ; he wishes his wife to enjoy during her
life the whole income of his fortune, and he wishes that
fortune, subject to her life interest, to be divided equally
among his children, and if a child dies during the wife's life
he does not wish that one part of that child's share should be
treated as realty, another as personalty; so far as is possible he
wishes to treat his fortune as a single whole. By an extension
of the principle that we have been considering he is enabled
to effect this object to a very considerable extent. He devises
and bequeaths all his realty and personalty to trustees upon
trust to convert it into money, and to invest that money, and
then he declares how the invested fund shall be held, on trust
for his wife for life and so forth. But he does not mean that
the trustees should be bound to make an immediate sale of
the land — such a sale might be very improvident — so he
XVII Trusts for Conversion 217
o-oes on to give his trustees the widest discretion as to the
time at which they shall sell ; they may postpone the sale so
long as they shall think fit.
Now in this case if the trustees do postpone the sale they
are committing no breach of trust. Nevertheless it is held
that as between the real and personal representatives of the
beneficiaries the land is to be considered in equity as though
it were a sum of money ; it is according to a common phrase
impressed with a trust for conversion, albeit that trust is
accompanied by a discretionary power of postponement. It
will be needless to state a converse case in which money is to
be turned into land. Occasionally, though less frequently, a
testator making what we may call a primogenitary settlement
of his land, desires that his personalty shall be expended in
the purchase of yet more land to be settled in similar fashion.
Here of course it will be very expedient that the trustees
should have power to postpone the purchase of land, it may
be long ere they will find in the market what would be a
suitable addition to the family estate. By means of a trust
for conversion and a discretionary power of postponement,
the testator can at once give the trustees all the time
requisite for finding suitable lands and at the same time
provide that the delay thus occasioned shall have no effect
on the devolution of the equitable interests in his personal
estate.
The working out of this principle is of course not free
from difficulties. In the first place wherever it is alleged that
there has been an equitable conversion of land into money or
money into land we must first make certain that there is a
trust for conversion. On the one hand a trust for conversion
accompanied by a power of retention will be effectual, on the
other hand a mere power to convert will not be enough. Of
course in a badly drawn instrument it may be difficult to say
which of these has been created, and thus questions of con-
struction arise. Good conveyancers are careful in the first
instance to make an absolute trust for conversion, declaring
that the trustees are to sell the land, or to lay out the money
in the purchase of land, and then, generally by some later and
independent clause, they give such a discretionary power of
2i8 Lectures on Equity Lect,
postponing the sale or purchase of land as is desirable, and
add that in the meanwhile the land is to be impressed with
the character of personalty, or the personal fund with the
character of realty. But the great principle is that to effect
an equitable conversion there must be a trust for conversion,
and not a mere power to convert.
This doctrine of a notional conversion of realty into
personalty, or personalty into realty, has been worked out
with logical consistency. If once a fund of personalty has
been subjected to a trust for the purchase of freehold land,
then until something happens which has the effect of recon-
verting it into personalty, it is treated as realty for all purposes
of succession and devolution. Thus there may be dower and
curtesy of such a fund, and again one may have an estate tail
in such a fund. In order that such an estate tail may be
barred a deed enrolled under the Fines and Recoveries Act is
required. Section 71 of that Act (3 and 4 Will. IV, c. 74)
deals specially with this matter : for the purposes of this
Act money subject to be invested in the purchase of lands
to be settled so that any person would have an estate tail
therein is in effect treated as though it were land purchased
and settled. Great use has been made of this idea by the
modern Acts of Parliament which enable railway and other
companies to compel a sale of settled land, and also by the
Settled Land Act of 1882. Under this last Act the money
arising from the sale of settled land and any securities upon
which such money is invested shall ' for all purposes of dis-
position, transmission and devolution be considered as land
and shall be held for and go to the same persons successively
in the same manner and for and on the same estates, interests
and trusts as the land wherefrom the money arises would, if
not disposed of, have gone under the settlement.' (45 and 46
Vic. c. 38, sec. 22 (5).)
Further, this idea has been introduced into the interpreta-
tion of wills and other documents. If, for example, a trustee
is holding money upon trust to purchase land and convey it
to A in fee simple, and A dies having devised all his realty to
X and bequeathed all his personalty to Y, it is X, not Y, who
will be entitled to the money — it will pass by a general devise
XVI 1 Failure of the Objects of Conversion 2 1 9
of all lands, tenements and hereditaments; it will not pass by
a general bequest of personal estate^
The cases which have occasioned most difficulty have been
those in which the object which was to be gained by the con-
version of the property has wholly or partially failed. Let us
begin with a simple case. A by his will leaves land to
trustees upon trust to sell and to pay the proceeds to B ; B
dies in the lifetime of A and (not being a descendant of the
testator — see the Wills Act, sec. 33) the disposition of the
proceeds of sale fails utterly. The sale then is not required
for any purpose whatever, and as between the testator's heir
at law and his next of kin, we shall I think have little diffi-
culty in deciding in favour of the heir. But A by his will
leaves land to trustees upon trust to sell and divide the
proceeds between B and C ; B survives the testator, C does
not. Now a sale is required by the will, it is required in
order that B may have what the testator has intended to give
him, namely money and not land. But this will exhaust but
half of the fund (B and C were not made joint tenants but
tenants in common). What is to become of the residue?
The testator's heir at law and his next of kin seem both to
have plausible claims. The land must be turned into money
in order that B may get his share, will not the other moiety
also be personalty, and is it not the rule that a dead person's
undisposed of personalty goes to his next of kin? In the
famous case of Ackroyd v. Smithson (i Bro. C. C. 503) this
reasoning was overruled. The land, it is true, must be sold,
but that is merely in order that B may get that moiety of the
price which A has given to him. As between his real and
his personal representatives the testator has made no choice.
The property comes to them not because the testator has
said that it shall come to them, but because he has not
effectually given it to anyone else ; they are not entitled
under the will, they claim in consequence of a partial intes-
tacy— and our law is that if a tenant in fee simple dies
^ But A, being entitled absolutely, may of course in his lifetime elect to take
the fund as personalty or may in his will either by express terms or by manifest
intention effect a reconversion of this notional realty again into personalty. Cf.
In re Griiitlliorpe, 1908, 1 Ch. 666.
220 Lectures on Equity Lect.
intestate his land descends to his heir. So here the testator's
heir takes the moiety of the property that was destined for C.
In this case the gift to C lapses in consequence of C's death
in the testator's lifetime. The result would be the same if
the gift to him had failed for any other reason, for instance,
as being contrary to law.
Thus suppose the case last put to have occurred before
the Mortmain Act of 1891, and suppose C to have been a
charitable institution, the testator at that time could not give
the proceeds of the sale of his land to a charity. (I mention
this because one might have thought that the doctrine of
conversion might have enabled him to do this, but this is not
so. Under the Act of 1736 (9 Geo. II, c. 36), a charity could
not take either money impressed with a trust for conversion
into land or land to be converted into money, and I take it
that the consolidating Act of 1888 (51 and 52 Vic. 42) did
not alter the law in this respect.) So, the gift to the charity
failing, the testator's heir at law would have become entitled.
The same is the case if the testator directs the sale of land,
and forgets to dispose of some share of the fund to arise from
such sale, the testator's heir at law (not his next of kin)
becomes entitled to that share,
A further point is well established, namely that in all
these cases where the heir at law becomes entitled to an
undisposed of share of money to arise from the sale of land
he takes it not as realty but as personalty. A devises land
upon trust for sale, and the proceeds are to be divided
between B and C, C dies in A's lifetime, A's heir at law
becomes entitled to half the property ; but before the sale is
made he dies — perhaps he dies intestate and the question is
between his heir and his next of kin — or perhaps he has left
a will devising his realty to X, and bequeathing his personalty
to Y — any way, his real and his personal representatives both
claim the share, and the question is decided in favour of his
personal representatives {Smith v. Claxton, 4 Madd. 484). The
heir has become entitled — to what ? To land that is subject
to a trust for conversion into money — a trust which B can
enforce — he has become entitled to personalty. In re Richer-
son, 1892, I Ch. 379.
XVII Failure of the Objects of Conversion 221
In re Wood, 1896, 2 Ch. 596, is a very pretty case. In
1893 the testatrix dies without an heir, having devised a
house of which she was legally seised in fee simple to her
executors upon trust for sale, and out of the proceeds to pay
her debts, funeral expenses and legacies. There was no gift
of residue. Her house is sold, and the proceeds are more
than sufficient to pay all her debts, funeral expenses and
legacies. Who is entitled to the surplus ? But for the Intes-
tates Estates Act, 1884, the executors would be entitled for
their own use\ Till then there had been no escheat of an
equitable interest. But under section 4 of the Act of 1884
the Crown successfully claimed the fund. Admittedly if
there had been an heir he would have taken the surplus
proceeds of this land.
We turn to the other side of the picture and we find the
same principles prevailing. The testator bequeaths personalty
to trustees upon trust to purchase land and convey it to B
and C. Of course if both B and C die before the testator
there is an utter end of the trust ; the testator's next of kin
will become entitled to the personal estate and will become
entitled to it as personalty — for there is no trust for turning
it into realty. But suppose a partial failure — C dies before
the testator but B outlives him — or the gift fails in whole or
in part owing to some rule of law, e.g. the rule against per-
petuities, or the testator has forgotten to declare trusts of
some share of the land that is to be bought. Whatever he
has not effectually disposed of his next of kin will take, not
his heir at law, he has shown no preference for his heir at
law, whichever party is to succeed must claim under the law
of intestate succession which gives personalty to the next of
kin {Cogaji v. Stephens, 5 L. J. Ch. (N. S.) 17). But again the
question arises on the death of one of these next of kin who
dies before any land is purchased — who will become entitled,
his real or his personal representative? His real representa-
tive— his heir at law or perhaps a devisee of ' all my realty ' ;
lor what he becomes entitled to is realty, for it is a share in a
^ As to the right of the executors to take lor their own use as against the
Crown see Attorney General s.Jefferys^ 1908, A. C. 41 1.
222 Lectures on Eqtiity Lect.
fund of money that is subject to an existing trust for the
purchase of land {Ctirteis \. Wormald, lo Ch. D. 172).
The doctrine of conversion is not confined to cases where
there is a trust for sale created by a settlement or a will. It
is applied also where there is a contract to sell. As soon as
I have bindingly contracted to sell freehold land I have, as
between those who can claim my property at my death,
rather personalty than realty. Similarly if I contract to buy
freehold, I have rather realty than personalty. See the case
oi In re Isaacs, 1894, 3 Ch, 506.
The doctrine is set going by an option to purchase in a
lease. A demised to B on lease with the option to purchase
within six months of A's decease. A died intestate. B
exercised the option. Here at A's death there is freehold
land, his heir is entitled to it until the option is exercised,
and so he gets the profits, but when the option is exercised
the price is part of A's personalty and goes to his next of kin^
The ideal or ' notional ' conversion of realty into per-
sonalty or personalty into realty continues until either an
actual conversion takes place or until some person competent
to elect does elect to take the land as land or the money as
money, until he elects, that is, to put an end to the trust for
conversion. A person may well be in a position to make
such election. Suppose the very simple situation that a
trustee holds land upon trust to sell and pay the proceeds to
me, or holds money upon trust to buy land and convey it to
me in fee simple — in the former case I would rather have
land, in the latter case I would rather have money. Of
course it would be ridiculous that land should be sold in
order that I might buy land with the proceeds, or that land
should be purchased when next day I should advertise it for
sale. I am entitled to say to the trustee I will take the land
as it is, or I will take the money as it is, and he is bound to
obey my expressed wishes. If then I have openly expressed
my wish then at my death there will be no question. I have
taken the land as land and it will pass at my death as realty,
or I have taken the money as money and it will pass at my
' See Lawes v. Bennett, i Cox, 167; and see the cases on this discussed in an
article by Mr Hart in The Law Quarterly Review, October, 1908.
XVII Election to effect Reconversion 223
death as personalty. But it often happens that no plain
declaration can be produced or has been made — then the
Court, looking at my behaviour, will have to say whether I
have manifested an intention to put an end to the trust for
conversion. Among the acts which have been relied on as
showing this intention are the granting of leases not authorized
by the trust; such leases granted by my concurrence would
show that I did not intend to have the land sold under the
trust. In one case a fact much relied on was that a bill was
introduced into parliament authorizing a railway company to
make a line through the land, and the cestui que trust pre-
sented a petition against the bill as owner of the land stating
that he desired to lay out the estate for building. That case
is In re Davidson, ii Ch. D. 341. Another case which will
serve to show how such questions are dealt with is In re
Gordon, 6 Ch. D. 531.
Where there is a single cestui que trust absolutely entitled
the principle is simple even though it may be difficult of ap-
plication because his conduct has been very ambiguous. He
has an absolute right to effect a reconversion and the only
question will be whether he has shown an intention of taking
the subject of the trust in its unconverted state. But when
there are several persons entitled to share the subject-matter
of the trust between them, then another principle comes into
play, and it has been held to make a distinction between land
which is to be turned into money, and money which is to be
turned into land. The principle is just this that one of several
cestui que trusts can not put an end to the trust, even so far
as his own share is concerned, if thereby he would be damag-
ing his fellows. Land is held upon trust for sale and the
proceeds are to be divided between A, B and C : A by himself
of course can not put an end to the trust; but he can not even
say (without the concurrence of B and C) 'I for my part shall
keep my undivided one-third of the land, while you if you
like can have your undivided two-thirds sold according to the
trust.' The reason given for this is simple, namely that the
price of two undivided shares of the land will probably be far
less than two-thirds of the price of the whole land. On the
other hand it has been held that similar reasoning does not
224 Lectures on Equity Lect. XVI i
apply to what we may call the converse case. Money is
held on trust for the purchase of land to be conveyed to
A, B and C as tenants in common in fee; any one of them
may insist on taking his share as money ; for it is said that
in so doing he will not affect the interests of his fellows.
Whether this distinction shows a deep insight into the theory
of value I must leave you to consider ; but it seems well
established \
Can a mere remainder-man elect? The question is not
free of difficulty. A testator devises land at Dale to trustees
upon trust to sell, to invest the proceeds, pay the income to
his wife for life, and hold the capital upon trust for his son.
The son dies during the widow's life, and while the land is
yet unsold, having declared explicitly to the trustees that
should the land not be sold in his mother's lifetime, he will
take it as land and not have it sold. We will suppose him to
die intestate, and the question to arise between his heir and
his next of kin. The case of Meek v. Devetiish, 6 Ch. D.
566(1877), makes it a probable opinion that his election to
take the land as land is effectual to settle the course of devo-
lution of his interest, is effectual to decide that his heir
becomes entitled in consequence of this prospective election.
But how far this can be carried seems rather doubtful, for the
remainder-man's so-called election can not prevent the tenant
for life from insisting on a sale of the land, and if between the
act of prospective election and the death of the remainder-
man a sale is made, then is his heir to take money which is
subject to no trust for conversion into land ? May it not be
said that if this be allowed we practically enable the remain-
der-man to make a will in favour of his heir by a mere
declaration of intention, without any of those formalities
required by the Wills Act ? We may yet see some cases on
this point.
^ See e.g-. HoUoway v. Aadcltffe, 23 Beav. 163, Seeley y-/ago, i P.W. 389.
LECTURE XVIII.
ELECTION.
The doctrine of Election may be thus stated : — That he
who accepts a benefit under a deed or will or other instrument
must adopt the whole contents of that instrument, must
conform to all its provisions and renounce all rights that are
inconsistent with it. If therefore — this is the simplest appli-
cation of the rule — a testator has affected to dispose of
property which is not his own and has also given some benefit
to the person, X, to whom that property belongs, that person,
X, if he accepts the benefit thus destined for him by the
testator, must make good the testator's attempted disposition
of the property that belonged to him, X. If on the other
hand X insists on his proprietary rights, will not give up that
property of his which the testator has endeavoured to give
away, then equity will sequester the benefit that the testator
has given to X for the purpose of making satisfaction to the
persons whom he disappoints by insisting on his proprietary
rights — X it is said must elect to take under the will or
against the will ; he can not it is said * blow hot and cold,' or
to use a phrase that our courts have borrowed from Scotland,
he can not both 'approbate and reprobate' the wilP.
Let us put a simple instance : X is tenant in fee simple of
Blackacre ; a testator says ' I devise Blackacre to Y and I
bequeath to X a legacy of i^iooo.' Now X can not be allowed
^ Cf. Douglas- Menzies v. Umphelhy, 1908, A.C. 224, where a man had made
two separate wills, one for his Scottish and one for his Australian estate. His
widow having claimed her ' tierce ' and jus 7-elictae against the Scotch will was
held to have made her election, and was ordered to make compensation out of her
interest under the Australian will.
M. E. 15
226 Lectures on Equity Lect.
both to keep Blackacre and to take the legacy of ^looo. He
may do one of two things. He may elect to take the legacy
that has been given to him and abandon Blackacre to Y. Or
he may elect to stand upon those proprietary rights that he
has outside the will, may say 'Blackacre is mine and I am not
going to abandon it' In this latter case there has in times
past been a controversy as to what ought to happen. The
debated question was sometimes stated thus : Is the principle
that we are to enforce against X the principle of forfeiture, or
the principle of compensation .-• Are we to say to him: Very
well, you insist on your rights outside the will, therefore you
can take nothing under the will, or are we to say to him
merely, You insist on rights outside the will, therefore you
can take nothing under the will unless you make com-
pensation to the person whom you will disappoint by your
election to stand on your rights ? To return to our case ; X
says Blackacre is mine and I am not going to give it up.
Are we to say to him : Very well, then you must abandon all
claim to the ;^iooo, or are we to say to him merely: You
must abandon so much of the ;^iooo as will serve to com-
pensate Y for the loss of that benefit, namely, Blackacre,
which the testator designed for him? Of course if the value
of Blackacre is equal to or greater than ;^iooo these two
principles will lead to one and the same result : — if X insists
on retaining Blackacre then he loses all claim to the iJ^iooo.
But suppose that Blackacre is worth but £^oo, then the
question becomes important. Shall we say : If you keep
Blackacre you can claim no part of the legacy — or shall we
say: If you keep Blackacre you must compensate Y by giving
him the value of Blackacre .-^ In the one case, you see, X will
merely keep Blackacre and take nothing under the will, in
the other he will be able to keep Blackacre and also to claim
one- half of the legacy — since the legacy of iJ'iOOO minus
;^500, the value of Blackacre, leaves ^^500.
It is now well settled that the principle of compensation
is the true one\ We do not say to X : By insisting on rights
1 Theie was a long conflict of judicial opinion before the principle of compen-
sation was definitely accepted ; see the earlier authorities collected in i Swanston
n. {a) p. 433-
XVIII Conipetisation, not Forfeiture 227
outside the will you forfeit all rights under the will. We say-
to him : If you insist upon rights outside the will you can
take no benefit under the will until you have compensated
those who are disappointed by your refusal to give effect to
the whole will as it stands.
Such is the principle. It is immaterial whether the
testator knew or did not know that he was attempting to
give away another person's property. It may seem to you at
first sight that the rule should only be applied where the tes-
tator has been acting under a mistake, where he has given,
e.g. Blackacre, believing that Blackacre is his. But our courts
have refused to go into the question — it would often be a
very difficult one — as to the testator's ignorance of his want
of title. Thus, though I know well that Blackacre belongs to
you and not to me, I can put you to your election by taking
upon myself to devise Blackacre to a third person if at the
same time I devise to you another estate or bequeath to you
some legacy.
In order that a case of election may be raised it must be
clear that the testator has affected to dispose of something
that does not belong to him and you may not have recourse
to external evidence to prove that by some general phrase he
intended to give away what is not his own. Thus suppose
that the testator devises 'All my real estate' to Y, you may
not prove by oral evidence that he was in the habit of treating
as part of his real estate a field that belonged to X. You
must find in the will itself that the testator has attempted to
dispose of a certain thing that belongs to X. As already
said, you need not find that the testator knew that that thing
belonged to X, but you must find in the words of the will
itself an attempted disposition of that thing, and therefore a
general devise of my real estate, or general bequest of my
personal estate will be insufficient. A good illustration of
this may be found in cases relating to wills made before 1838.
Under the old law, you will remember, a testator could devise
only such real estate as he was entitled to at the time when
he made his will — in other words, real estate acquired between
the date of the will and the date of his death would not pass
under his will. Very well — a testator having no real estate
15—2
228 Lectures on Equity Lect.
said ' I give all my real estate to X.' Here there was ground
for a fair argument that the testator must have meant some-
thing by these words, must therefore have intended to give
away some real estate that did not belong to him. That
argument however was rejected.
Difficult cases sometimes arise in which a testator who is
entitled to but a partial interest in certain property uses a
phrase which may be sufficient to describe the whole property.
Thus he gives ' my freehold house called Dale Hall,' and he
is but one of several tenants in common of Dale Hall. Or
again he gives ' my freehold house called Dale Hall,' and he
is not tenant in possession of Dale Hall but merely tenant in
remainder, there being perhaps several life estates preceding
his estate in fee. Is he attempting to give away more than
his own interest ? This is a question of construction and may
be one of great difficulty. No general rule can be laid down
save this, and it is a natural one, namely that you must have
clear words to induce the conclusion that a man has attempted
to give away more than belonged to him. Still of course,
here as elsewhere, you may look at the will as a whole, and
you may find that the testator has dealt with the property in
some manner that shows that he was not disposing of a partial
interest in it. Again if a testator having an estate which is
subject to an incumbrance gives this estate to Y and gives a
legacy to the incumbrancer X, this will not put X to his
election between his incumbrance and the legacy. In order
that such a case of election may be raised you must find that
the testator has given or attempted to give to Y the estate
freed from the mortgage, and the rule is that if I simply give
Blackacre to Y, without saying more, I mean that he shall
take it subject to any incumbrances that affect it.
Under the old law of dower a great crop of cases arose as
to whether a widow was by her husband's will put to her
election between her dower and those benefits that were
destined for her by the will. You will remember that under
the old law when dower had once attached to the land, the
husband could not get rid of it by act iiiter vivos or by will —
a fine levied by husband and wife was necessary. If then a
husband affected to devise land that was subject to his wife's
XVIII Election on Invalid Appointment 229
right of dower to Y and gave other benefits to his wife, a
question often arose as to whether the doweress was put to
her election. Many rules had been elaborated. Thus, for
example, it was settled that a devise in general terms, 'all
my land,' would not oblige her to elect. But we need not go
into this matter, for under the new law of dower, I mean the
law introduced in 1833, even a general devise is sufficient to
bar the widow of her dower and so no case of election can
arise. The widow under the new law can only be endowed
of land which her husband has not disposed of during his
lifetime or by his will.
The doctrine of election is applicable to cases of appoint-
ments under powers. Suppose that a person has a limited
power of appointment in favour of a certain class of persons
and he proposes to make an appointment in favour of one
who is not an object of that power, and by the same instru-
ment gives a benefit to some one of the persons who are
entitled to the property in default of appointment, that person
will be put to his election. Thus, for example, I have a
power to appoint by will or deed a fund of ;^iooo in favour
of all or any of my brother's sons and in default of appoint-
ment that fund is to be divided among all my brother's sons
equally. By my will I profess to appoint this ;!^iooo to my
brother's daughter, and I bequeath ^^"500 to one of my
brother's sons ; that son will be unable to dispute the appoint-
ment unless he is willing to compensate his sister. But on
the other hand it seems that an object of the power will not
be put to his election unless he also is (he usually will be) the
person or one of the persons entitled in default of appoint-
ment. Put this case. I have power to appoint a fund of
;^iooo among my brother's sons, but if I make no appoint-
ment the fund will go to the Charing Cross Hospital. My
brother has but one son. By my will I affect to appoint that
the ;^iooo shall be divided between himself and his sister,
and I further devise Blackacre to him. Here the appointment
to the sister is of course a void appointment. One half of the
fund is unappointed and the Hospital will get it. But it
seems that my brother's son will not be put to his election,
he will be able to keep the £^500 and also to keep Blackacre,
230 Lectures on Equity Lect.
for I have not attempted to give to his sister what belonged to
him. He had no right to any part of the ;^iooo until an
appointment was made, and if no appointment was made the
money was to go not to him but to the Hospital.
But again we must distinguish between cases in which a
person attempts to make an appointment to some person
who is not an object of the power from cases in which he
makes an appointment to one who is an object of the power,
but superadds some proviso or condition in favour of someone
who is not an object of the power. Put the case that I have
a power to appoint i^iooo among my children. I appoint
the whole sum in favour of my eldest son, but I add that he
is to settle it upon his wife and children, who are no objects
of the power, and then I proceed to devise Blackacre to my
said son. Here there is no case of election^ I have made a
valid appointment in favour of a person who was a proper
object of the power. I have followed this up by a direction
that he is to do this or that with it. This is a void clause and
may simply be neglected. The result is that I have made a
good appointment in favour of my son and have also made a
valid devise to him ; he is not put to his election, for I have
not attempted to give to any other person what belonged to
him. However if you will look at the case of White v White,
22 Ch. D. 555, you will find that this distinction is a some-
what fine one. In that case a testator having power to
appoint certain lands among the children of his first marriage,
appointed them (describing them as his own property) in
favour of a son of his first marriage subject to a charge in
favour of his other children, including the children of his
second marriage (who were not objects of the power), and he
devised property of his own to the same son subject to the
same charges in favour of his other children, 'so as to equalize
the shares of all my children in all my property.' Fry J.
held that in this case there was enough to put the son to his
election.
We must, it seems, distinguish between an appointment to
a person not an object of the power and an appointment
^ See e.g. Carver v. Bowles, 2 R. and M. 301 ; Clnirchill v. Chtirchill,
5 Eq- 44-
xvril Appointments void for Remoteness 231
which is bad for remoteness, as infringing the rules against
perpetuities.
The vah"dity of that distinction was denied by Kekewich J.
in the case of In re Bradshaw, 1902, i Ch. 436. A by will
gives property upon trust for B for life and after his death
upon trust for such of his children and other issue (such
other issue to be born within the limits allowed by law) as B
shall by will appoint, and in default of appointment for B's
children equally.
B, by his will, purports to appoint in favour of his son C
for life, and after the death of C for such of C's children as
are then living. The latter part of this appointment is void.
(Read back the appointment into A's will. Then there
would be a gift to those great-grandchildren of the testator
who shall be living at the death of a grandchild.)
But B gives his own property in the same way. Is there
here a case of election ? Kekewich J. (but with the current
of authority against him)^ says yes. The objection is that a
sort of indirect validity is thus given to a disposition which
the law, on grounds of policy, pronounces void. The testator
says: You must treat my void disposition as valid, otherwise
you will be losers. But Kekewich J. assimilates this to an.
appointment in favour of a non-object, a person not within
the powers
Turning to another question, in In re Wheatley, 27 Ch.
D. 606, Chitty J. adopted the general rule laid down by Lord
St Leonards in his treatise on powers^. 'Where a man having
power to appoint a fund, which in default of appointment is
given to B, exercises the power in favour of C and gives
other benefits to B, although the execution is merely void,
yet if B will accept the gifts to him, he must convey the
estate to C according to the appointment.'
I refer you to this case of In re Wheatley chiefly because
1 Dicta of James V.C. in Wollaston v. King, L.R. 8 Eq. at p. 175; and
Pearson J. in In re Warren's Trusts, 26 Ch. D. at p. 219; re Hamkock' s Trusts,
23, Irish Reports 34.
2 In re Bradshaw was not followed in In re Oliver's Settlement, 1905, i Ch. 191;
In re Beaks' Settlement, 1905, i Ch. 256; In re IVriglit, 1906, 2 Ch. 288.
3 8th edition, p. 578.
232 Lecttires on Equity Lect.
it raises a question which has more than once troubled the
courts of late years, and seems to have been now set at rest.
Can a married woman, by reason of this doctrine of election,
be compelled to make compensation out of a fund that is
settled to her separate use without power of anticipation ?
Put a simple case. Blackacre belongs to Mary, the wife of
John. By my will I devise Blackacre to Peter and bequeath
;i^ 1 0,000 to trustees upon trust to pay the income thereof to
Mary for her separate use without power of anticipation. Can
Mary retain Blackacre and at the same time insist that she
ought to have the income of the i^ 10,000, or must she make
compensation out of this income to the disappointed Peter.''
There have been contradictory decisions about this matter.
In the case that I have mentioned Chitty J. decided that the
married woman was not bound to elect, but could take both
benefits. Shortly afterwards In re Vardon's Trusts, Kay J.
came to an opposite conclusion, but the Court of Appeal
reversed his judgment, 31 Ch. D. 275.
In that case Miss Vardon, who was an infant, married
Mr Walker. A settlement was made. The lady's father
settled iJ"5000 upon trusts which gave the wife a life interest
for her separate use without power of anticipation. By the
same deed she covenanted that any property that she might
afterwards acquire should be settled upon certain trusts in
favour of herself, her husband, and the children of her mar-
riage. Then her brother died having by his will given her
a sum of ^8000 for her separate use. Now the covenant as
a covenant was invalid, for as I have said when she entered
into it she was an infant. But the trustees of the settlement
raised the question whether she was not put to her election.
Could she say this covenant is invalid and I will take the
^8000 and yet go on receiving the income of the ;^5000 that
was provided for her by the settlement? Would not this be
both approbating and reprobating the deed.^ The Court of
Appeal held that she was not put to her election. Had it
not been for the restraint on anticipation she would have been
put to her election, for even an infant can not say I will take
the benefits provided for me by this settlement, and yet reject
the covenants by which I professed to bind myself. But the
XVIII Election is matter of Intention 233
Court of Appeal treated the matter thus. The doctrine of
election rests upon the general presumption that the authors
of an instrument intend that effect shall be given to every
part of it. But this intention can be rebutted by an express
declaration that the doctrine of election is not to be applied.
Thus for example if I give Blackacre (which belongs to Peter)
to John, and also give Peter ;^iooo, the doctrine will apply,
but it will not apply if I go on to say ' Nevertheless I hereby
declare that Peter shall not be bound to elect between Black-
acre and the ;^iooo.' So here if this settlement had contained
an express declaration excluding the doctrine of election, there
would have been no difficulty. But does it not contain some-
thing that really is equivalent to such a declaration ? ' What,'
asked Fry L.J., ' is the force and effect of this restraint on
anticipation? It provides that nothing done or omitted to
be done by Mrs Walker shall deprive her of the right to
receive from the trustees the next and every succeeding pay-
ment of the income of the fund as it becomes due. But if she
be put to her election and if she deprives herself of the right
to receive subsequent payment of the income until her husband
and children are compensated, it follows that she has by the
act of election, or by the default in performing her covenant,
deprived herself of the benefit of the income in the way of an-
ticipation, which is the very thing that the settlement declares
that she can not do. This settlement, therefore, in our judgment
contains a declaration of a particular intention, inconsistent
with the doctrine of election and therefore excludes it^'
This well brings out the point that the doctrine depends
upon a presumed intention. It can be excluded by words
definitely stating that it is to be excluded, it can be excluded
also by words which show a contrary intention, and by giving
property to a married woman ' without power of anticipation '
one in effect says that as regards that property she is not to be
put to her election.
That it is matter of intention is well illustrated by Haynes
V.Foster, 1901, i Ch. 361. A testator owns lands in Turkey, he
devises them upon trust to sell them and the proceeds are to
form one fund with his residuary estate. He disposes of his
i 31 Ch. D. at p. 280.
234 Lectures on Eqitity Lect.
residuary estate in such wise that interests in it are ^fven to a
son, X, and to two daughters, Y and Z, who are subjected to
restraint against anticipation. By Turkish law his disposition
of the proceeds of the sale of his land is invalid. They go, as
to two-fourths to the son, while each daughter takes one-fourth
share. This is a clear case of election against the son. But
at the time when the question rises one of the daughters, Y, is
a married woman, but the other, Z, is a widow. Following the
case of In re Vardon's Trusts it was held that Y is not bound
to elect. But what of Z — the widow — since for the time the
restraint on anticipation is inoperative .-' But it was held to be
a matter of intention. The testator has shown an intention
that Z shall not be put to her election by saying that her
share is to be inalienable. Kekewich J. thinks that the result
would be the same if the testator had attempted to deprive a
man of the power of alienation, notwithstanding that such an
attempt must be futile. What is important is not the validity
of the restraint but the attempt to render inalienable which
is in effect a declaration that the doctrine of election is
excluded.
Then (to turn to another point) as regards the power to
make an election, there never was a doubt that a married
woman could make an election if the property was given to
her separate use, and there was no restraint on anticipation in
the case. An infant can not make a binding election : but
on behalf of infants the Court will elect. It will direct an
inquiry as to which of the two alternatives is the more
beneficial to the infant, and adopt that one on his behalf
An election may be inferred from conduct — it need not be
made by any formal instrument. You may discover as
a matter of fact that a person has elected to take under the
instrument, or that he has elected to take against the instru-
ment, and in this latter case he will be liable to make com-
pensation to those persons whom he has disappointed by his
election.
You will have noticed from what has already been said
that an infant may be bound to elect — also that an infant
may be bound to elect by reason of his or her own act. This
is a point that has often to be considered in relation to
XVIII Infants may be put to Election 235
marriage settlements executed by infants. A covenant in
a marriage settlement made by an infant is not void but is
voidable at the infant's option {Smith v. Lucas, i8 Ch. D. 531
at 543). The Infants' Settlement Act, 1855, validates such
settlements (by a boy if over 20, or by a girl if over 17 years)
if made with the sanction of the Court. But apart from this
an infant, when of full age, may be put to an election.
This case leads us to consider a second application of the
general principle of election. We have hitherto been speaking
as though that principle only came into play in a case in
which a person attempts to dispose of property that does not
belong to him since it belongs to some other person. But the
same or a very similar principle may be applied to cases in
which a person affects to dispose of property that really is his
own, but of which, owing to some personal disability such as
coverture or infancy, he or she can not effectually dispose.
Here again there can be no case of election unless in the same
transaction the person in question acquires some benefit from
another. An infant on the occasion of his or her marriage
affects to make a settlement of his or her property in favour
of his or her future wife or husband and the children of the
marriage. Now if this be all — if there is no benefit provided
by some one else for this infant settlor — there can be no talk
of election. But suppose that such a benefit is provided, then
the infant, when he is of full age, may be bound to make his
choice, repudiating the settlement as a whole or adopting the
settlement as a whole. Thus, suppose a female infant, on the
occasion of her marriage, covenants to settle all her property,
present and after acquired, in a manner that benefits her
husband and the children of the marriage, and by the same
deed the husband brings property into the settlement for the
benefit of the wife and children. Here we have a question of
election. Can this woman be allowed to say I repudiate my
covenant, but I intend to receive the benefits provided for me
on the part of my husband? No. That is not to be suffered.
Either you must fulfil your covenant or out of the benefits
that you receive under the settlement you must make com-
pensation to those whom you disappoint by not fulfilling your
covenant.
236 Lectures on Equity Lect. XVI 1 1
Of late years there has been a considerable number of
cases illustrating this principle — that you must accept the
settlement as a whole or reject it as a whole. One of them
is Greejihill V. North British Insurance Co., 1893, 3 Ch. 474.
On her marriage a woman (of full age) agreed to settle
inter alia a reversionary interest in a policy of insurance,
a memorandum of this agreement was signed before the
marriage by the husband alone, and he after the marriage
executed the settlement. It was held that if the wife took
the benefits given her by the settlement she was bound
thereby to fulfil her own side of the agreement. Further it
was held that her conduct amounted to an election — that by
taking benefits under the settlement she had adopted it and
was bound to fulfil her side of the bargain. Here the difficulty
was occasioned not by her infancy but by the Statute of
Frauds and her incapacity arising from coverture — but the
principle is the same — you are not to approbate and re-
probated
^ As to this case note [a] that the property agreed to be settled included real
estate and that the agreement was one made in consideration of marriage, hence
the question as to the Statute of Frauds, (1:^) that the woman's title to the policy of
insurance accrued before Malins' Act, 1857, came into operation and hence was not
assignable by her, and an assignment which she had in fact made was invalid.
LECTURE XIX.
SPECIFIC PERFORMANCE.
In the past we have seen Equity inventing certain new
rights and obligations, rights and obhgations of a substantive
kind. We have seen it inventing the trust, conferring on
cesttii que trust a right where he had none at law, imposing an
obligation on the trustee, though at law he was under no such
obligation. We have seen it inventing the equity of redemp-
tion, giving a right to the mortgagor after he had lost his
rights at law and putting a new duty upon the mortgagee. We
have also seen it enforcing its peculiar theories as to the way
in which assets should be administered. We have now to
observe it inventing not, at least in the first instance, new
substantive rights, but new remedies. Two great remedies it
invented, remedies peculiar to itself — the decree for the
specific performance of a contract, and the injunction.
In granting a decree of specific performance — or a judg-
ment for specific performance — the Court in effect says to the
defendant, You must perform specifically the contract into
which you entered — that is to say you must do the very thing
that you promised to do on pain of going to prison as
a contemner of this Court. For instance, if you have sold
land, you must convey it to the purchaser, he being ready to
pay you the agreed price. If you have bought land you must
pay the price to the vendor, he being ready to convey the
land to you.
The original foundation of this jurisdiction no doubt is
this. There are many cases in which if a contract be broken
no amount of damages that a jury will give will be a sufficient
238 Lectures on Equity Lect.
remedy to him who suffers by the breach. A man for ex-
ample agrees to buy land, and he agrees perhaps to give for it
more than any one else would have given. The seller refuses
to perform his part of the agreement, it may be that no
damages that could be given to the buyer would be a just
compensation to him for his loss. What damages can you
give? Even if land can be said to have a market value, still
a man may well have consented to pay more than its market
value and yet be very anxious that the agreement should be
performed ; to him the land has a fancy value. Our courts
of common law, too, held that on a contract for the sale of
land the purchaser was not entitled to any damages for the
loss of his bargain if the sale went off by reason of the vendor
being unable to make a good title to the land ; that the
buyer could only recover the expenses to which he has been
put in relation to the attempted purchase. This rule laid
down in Flureau v. ThornJiill, 2 W. Bl. 1078, was confirmed by
the House of Lords in 1874 in the case oi Bain v. Fothergill,
L.R. 7 H. of L. 158. But too wide a scope must not be
attributed to these decisions. They only protect a vendor
who without fraud and without his default is unable to make
a good title, not a vendor who wantonly refuses to complete
the purchase or wilfully abstains from doing what is necessary
to make a good titled But if the purchaser chooses to accept
such title as the vendor has he may have his decree of specific
performance. Starting then with the principle that when the
legal remedy was inadequate it would grant its own remedy
of specific performance, the Court of Chancery acquired a
large jurisdiction.
Let us first ask — To what contracts has it been applied?
It has been applied to contracts for the sale of land and
for the lease of land. It has been applied at the suit of a
vendor as well as at the suit of a purchaser, at the suit of one
who has contracted to grant a lease as well as at the suit of
one who has contracted to take a lease. This may seem
^ See per Lindley L.J. in Day v. Singleton, 1899, 2 Ch. 320, and see per
Turner L.J. in Williams v. Glenion, L.R. i Ch. 200 at p. 209 and Mayne on
Damages, Chap. v.
XIX Scope of the Equitable Doctrine 22,g
a little strange. A vendor has a mere pecuniary demand
against the purchaser who refuses to complete, a demand
which may be enforced by a common law action. If the con-
veyance has been executed, he may in such an action recover
the whole purchase money ; if no conveyance has been
executed then he has the land, and may recover the difference
between the price agreed on and the estimated price on a
resale. His case, therefore, is not one in which the common law
remedy is inadequate. But the Chancery came to the doctrine,
convenient for the spread of its jurisdiction, that ' remedies
should be mutual,' that if the contract was of such a kind that
Equity would decree specific performance of it at the suit of
the one party, it would also decree specific performance of it
at the suit of the other party. In this way the vendor of land
acquired the remedy of specific performance.
Now these are the common cases. We generally see the
remedy given when the contract is for the sale or for a lease
of land. Still these are not the only cases. As a general rule
a contract for the sale of goods will not thus be enforced — the
legal remedies are adequate ; but specific performance may be
decreed of a contract for the sale of unique chattels, rare
china or the like\ So again an agreement will not as a general
rule be specifically enforced if it be for the sale of stock,
e.g. Consols, such as may always be had in the market ; still it
has been granted of a contract for the sale of railway shares
such as were not always to be had in the market. Then as
a general rule you can not compel the specific performance of
a contract to do work, to erect buildings or to make other
things — still sometimes when the agreement to build or to
repair is a mere subsidiary term in an agreement for the sale
of land or for a lease of land a judgment for specific performance
can be obtained. I have a decree before me which says (Seton
on Decrees (1901), vol. III. 2281) 'And it appearing that a plan
of the house to be erected in pursuance of such agreement has
been approved of between the parties, let the defendant S
forthwith proceed to construct and erect a house on the ground
^ The Sale of Goods Act, 1893, s. 52, authorizes judgment for specific
performance, if the Court thinks fit, in any action for breach of contract to deliver
specific or ascertained goods.
240 Lectures on Equity Lect.
comprised in the agreement in accordance with such plan'.'
So a decree for the specific performance of an agreement for
the sale of the good will of a business has been denied, but
such a decree has been granted where the good will was sold
as an adjunct to a house-. An agreement to execute a mort-
gage will be specifically enforced when the money has been
advanced — a large part of the doctrine of equitable mortgages
depends on this, but an agreement to lend money will not be
thus enforced. The reason usually given is that to enforce
it would be nugatory, since at the next moment the lender
might demand his money back again. But the rule is now
general and extends to cases where the lender could not at
once demand his money back again-^ An agreement to serve
can not be specifically enforced, otherwise men might in effect
sell themselves into slavery. See Ryan v. Mutual Tontine
Association, 1893, i Ch. 116,
On the whole I think that we may say that specific per-
formance applies to agreements for the sale or the lease of
lands as a matter of course ; its application outside these
limits is somewhat exceptional and discretionary.
Having convinced ourselves that the agreement before us
is one of a kind of which equity will decree specific perform-
ance, we have next of course to be sure that this particular
agreement is a valid, enforceable contract. And we may take
as a main rule this — that equity will only enforce specific per-
formance of a contract that is valid at law and provable in
courts of law. In particular, since we are mainly concerned
with contracts which come within the 4th section of the Statute
of Frauds, contracts for the sale of some interest in lands, or
for the lease of lands — we must say that the note or memo-
randum in writing is as necessary in a court of equity as in
a court of law — the doctrine as to what it must contain and
^ Ctibitt V. Smith (1864) 11 L.T. 298, and see Wolverhampton Corporation v.
Emmons, 1901, i K.B. 515.
- See Darbey v. Whitaker, 4 Drew. 134 at p. 139.
3 See South African Territories v. Wallingford, 1898, A.C. 309, but this
particular form of agreement to lend money — viz. on debentures to a company —
was excepted from this rule by the Companies Act, 1907, s. 16, now s. 105 in the
Companies Act of iyo8.
XIX Pai't Perfonnajice in Equity 241
how it must be executed was not peculiar to a court of law, or
to a court of equity.
To this however there was, and is, one large exception
or apparent exception in the purely equitable doctrine of part
performance. Equity would sometimes enforce an agreement
which, owing to the absence of any written note of it, could
not be relied on in a court of law. A bold step certainly was
here made : but yet perhaps a necessary one. A agrees to
sell land to B — there is no writing — he lets B take possession
of the land. What is one to do? Leave B in possession
though he has not paid the price? Allow A to treat B as
a trespasser? Under the 17th section of the Statute such
a problem as this did not arise, for if the goods have changed
hands, if even a part of the goods has changed hands — there
is no need for the written note. It is a pity that the 4th
section did not contain similar words. A Court of Equity in
effect set itself to supply them.
In order to give rise to this equitable doctrine it is, ab
I understand, necessary that the Court should find the parties
unequivocally in a different position from that in which
according to their legal rights they would be were there no
contract. You find A letting B into possession and you say
that this is cogent evidence of the existence of some agree-
ment between them, and of some agreement relating to this
land. Thus we get the rule that delivery of possession is
a sufficient part performance on the part of the vendor to
sustain his suit against the purchaser, and that acceptance of
possession is a sufficient part performance on the part of the
purchaser to sustain his suit against the vendor.
But you must find some cogent evidence in the situation
of the parties before you can receive oral evidence of the
agreement. Thus put the case that B has paid A a sum of
money, ;^iooo, and that he is ready to swear and bring plenty
of witnesses to swear that he paid it as part or even as the
whole of the purchase money of Blackacre which A had sold
to him. You can not admit this evidence ; there may have
been any one of a thousand causes for this payment ; it is in
no way connected with Blackacre. So part payment, or even
full payment of the price can not be relied upon as an act of
M. E, 16
242 Lectures on Equity Lect.
part performance so as (such is the phrase) ' to take the case
out of the Statute^' Again take marriage — A in consideration
that B will marry his daughter promises to settle Blackacre
upon him. B marries A's daughter. This is not enough'^.
The fact that B has married A's daughter in no way points to
Blackacre as being involved in any bargain. So A induces
B to serve him as his housekeeper without wages by promising
to leave her certain lands by his will ; he does not leave her
the lands, and there is no signed memorandum of the promise.
Here the fact that B has gone on serving A without wages is
not unequivocal ; indeed it does not in any way point to the
lands in question ; and it can not be relied on as a part per-
formance to take this case out of the Statute. This was
decided by the House of Lords in 1883 in the case oi Maddison
V. Alderson, 8 Ap. Cas. 467.
I believe, indeed, that the only things that can be relied
on as acts of part performance for the purpose of our doctrine,
are delivery and acceptance of possession of land, and in some
cases retention of possession of land. Of the change of
possession from A to B I have already spoken — this will be
enough to let in oral evidence of an agreement. I mentioned
a retention of possession because there are cases in which this
when coupled with other acts may be enough. A has let land
to B ; the lease expires, but B continues in possession. If this
be all, then B can not produce oral evidence of an agreement
for a sale or for another lease and thus disturb the relation
which the law implies between a landlord and a tenant who is
holding over after the determination of his lease. But it is
said that the retention of possession may, in special circum-
stances, be treated as part performance of an agreement for
the sale of the land or for another lease — it is said to be thus
if the tenant in possession lays out money upon the land
upon the faith of an agreement. But the cases seem to show
that some quite unequivocal act is required of the tenant^ So
much as to the doctrine of part performance.
1 ffi(,qhes V. Morris, 2 De G. M. and G. at p. 356 ; Britain v. Rossiter,
II Q.B.D. at p. 130.
2 Lassence v. Tierney, i Mac. and G. 551.
3 As to payment oi an increased rent see Nunn v. Fabian, L.R. i Ch. 35, and
Miller and ALdivorlh Ltd. v. Sharp, 1S99, i Ch. 622.
XIX Must be a valid Contract 243
I think we may say that subject to this doctrine the plain-
tiff who goes to equity for a decree of specific perfornnance
must prove an agreement which in a court of law was a valid
contract. At one time certain judges in the Court of Chan-
cery had almost succeeded in inventing a doctrine that equity
would compel a person to 'make good his representations' —
I am not speaking of representations of existing facts, but of
representations of intentions — and would thus go beyond the
law of contract. But the wholesome influence of the Judica-
ture Act and the decision in Maddison v. Alderson}, seems to
have given the death blow to this loose doctrine. If you go
to equity for specific performance there must have been
a valid contract. But I say ' must have been,' not ' must be.'
Let us take this distinction, though now-a-days it belongs to
the past.
It not unfrequently happened that one of two contractors
could go to equity for specific performance, though he could
not go, though he had lost his right to go, to law for damages.
Note this case, a contractor could sometimes go to equity
though he could not go to law, just as he could sometimes go
to law though he could not go to equity. As a general
rule a man can not sue upon a contract at law if he himself
has broken that contract, though of course, as you know, there
are many exceptions to this statement. Now in contracts for
the sale of land it very frequently happens that a breach of
the terms of the contract has been committed by the person
who wishes to enforce it. Such a contract will be full of
stipulations that certain acts are to be done within certain
times. Within 14 days, for example, after the seller has
delivered his abstract of title to the purchaser, the purchaser
is to make all his requisitions and objections. On a certain
day the sale is to be completed by a conveyance of the land
and payment of the price — and so forth. Well you know that
equity held that as a general rule these stipulations as to time
were not of the essence of the contract — that for example
a purchaser might sue for specific performance although he
^ 8 Ap. Cas. 467 (1883); and see this doctrine discussed, Pollock, Co?itract,
7th edition, Note K, p. 713.
16 — 2
244 Lectures on Equity Lect.
had not in all respects kept the days assigned to him by the
contract of sale for his various acts. This was the general
rule — these stipulations as to time were not essential unless the
parties declared them to be so'. There were exceptions — the
court looked at the whole contract to see whether time was or
was not essential. Thus it is said that time is of the essence
of the contract on the sale of a public house as a going con-
cern", on the sale of a reversion, on the sale of a life estate, or
life annuity, on the sale of a leasehold held for a short term,
and generally when the property is of a fluctuating value or
of a determinable character^ Thus it would often come about
that a man could enforce a contract in equity though he could
no longer enforce it at law. But, as you know, the Judicature
Act of 1873, by section 25, sub-section 7, has removed this
anomaly, 'Stipulations in contracts as to time or otherwise
which would not before the passing of this Act have been
deemed to be or to have become of the essence of such con-
tracts in a Court of Equity, shall receive in all Courts the
same construction and effect as they would heretofore have
received in equity.'
So I think that we may say now that any one who goes
to equity for specific performance must (subject to the doctrine
of part performance) show a contract that is binding in law.
Suppose now the contract to be one of a kind of which specific
performance is usually granted, for instance a contract for the
sale of land, can we go on to say that in the particular case
before us specific performance will be decreed. I believe that
as a general rule we may. It used to be said, and from time
to time this sort of thing is still repeated, that specific per-
formance is a discretionary remedy, but I think that of late
years this talk has lost its old meaning, and that the right to
specific performance may now be regarded as a right which
normally accrues to every contractor when a contract falling
within certain recognised classes has been broken. The ex-
ceptions have been brought under heads.
1 Seion V. Slade, 7 Ves. i(>i; 6 R.R. 124.
^ CowUs V. Gale, L.R. 7 Ch. 12.
' See Hipwdll w. Knight, i Y. and C. 401 at p. 416; Nnunian v. Rogers,
4 Bro. C.C. 591.
XIX Misdescription in Contract of Sale 245
For the more part these exceptions are best treated now-
a-days as part of our law of Contract, and you will find them
discussed in your books on Contract. Thus of course there is
much to be said about Fraud, Misrepresentation, and Mistake,
You will, however, remember that in this region we can not,
even under the new regime, argue from a refusal of the remedy
by specific performance to the invalidity of the contract,
though one may, at least in general, argue in the reverse direc-
tion. Thus under the head of Mistake one may mention
a case, Malins v. Freeman (1837) 2 Keen, 25, in which the
Court refused to grant specific performance against a purchaser
who at a sale by auction bid for and bought a lot different
from that which he intended to buy ; he had acted with
considerable negligence, and the question was left open whether
there was not a valid contract on which damages might be
recovered at law^
Very often indeed the Court in an action for specific per-
formance has to consider the eff'ect of some misdescription of
the land, either as regards its character, its quantity, or its
title contained in the particulars or conditions of sale. Often
when the misdescription is not of a very serious character it
is able to say to the plaintiff vendor, 'Yes we will decree
specific performance, but only if you will make compensation
for this misdescription by accepting a somewhat lower price
than that which was agreed on.' We have indeed three cases^ :
(i) If the misdescription be but slight equity will enforce
the contract at the instance of either party, but only with
compensation. If the purchaser will get substantially what
he bargained for he can be obliged to take it with a compen-
sation for deficiency — that is, at an abated priced
(2) Then we have the case of more serious misdescription
in which the purchaser has the option of fulfilling the contract
with compensation or avoiding the contract altogether. He
^ But cf. Tamplin v. James, 15 Ch.D. 215; and see these cases discussed in
Van Praagh v. Everidge, 1902, 2 Ch. i^^\ and see Williams, Vendors and
Purchasers, p. 693.
- See Pollock, Contract, 7th edition, pp. 537 et seq.
'^ See e.g. Esdailev. Stephenson, i S. and S. 122 ; 24 R.R. 151; and Powell
V. Elliott, L. R. 10 Ch. 424.
246 Lectures on Equity Lect.
has his choice — he can say I will not take this, or I will take
this with compensation ^
(3) The misdescription may be so material that the Court
will not enforce the contract at all, even with compensation.
A sells Blackacre to B as freehold land; when the title is
examined it turns out to be copyhold. The Court will not
compel A to convey and make compensation^ One can not in
such a case calculate the proper compensation. Of course if
B will take the copyhold land without compensation he is
entitled to have it, but the Court will not compel A to convey
the land with compensation. It will leave B to his common
law remedy, the action for damages, and that, as we have
seen, will give him nothing for the loss of his bargain^
But the cases on this subject are complicated by conditions
of sale. There are two conditions in common use which have
contrary effects. The one says that if any mistake or omission
be discovered in the description of the property this shall not
annul the sale, but the vendor or the purchaser is to allow
compensation, and the amount of the compensation is to be
settled by two referees or their umpire. It is well settled,
however, that such a condition will not prevent a really serious
misdescription from making the sale voidable at the option of
the purchaser'*. Another condition, less frequently used, says
that any error shall not annul the sale, nor is the vendor or
the purchaser to claim any compensation in respect thereof.
This again will not prevent the purchaser from resisting an
action for specific performance if the misdescription goes to
the root of the matter^
Mistake, misdescription and fraud are topics with which
both law and equity have had to deal. But to the action for
specific performance there may be other defences which the
common law would not recognize. It is, I think, a little
doubtful whether we ought not here to mention a gross
1 See In re Contract betwee7i Fawcett and Holmes, 42 Ch.D. 150, approving
the rule laid down in Flight v. Booth, 1 Bing. N.C 370, at p. 377.
2 See Ruddy. Lascelks, 1900, i Ch. 815.
^ Ante, p. 238.
* See Flight v. Booth supra and In re Terry and IVkite's Contract, 32 Ch.D.
14 and 28.
^Jacobs V. Revell, lyoo, 2 Ch. 8j8.
X I X Defences to Suit for Specific Performance 247
inadequacy of price. It is not impossible that there are cases
in which the Court, while holding that there was a contract
enforceable by action for damages, would yet hold that owing
to the gross inadequacy of the price that contract could not be
enforced specifically. But I am not very certain that this class
of cases really exists, or that now-a-days the Court would on
the ground of inadequacy refuse to order specific performance,
unless it was treating that inadequacy as evidence of fraud or
of undue influence which rendered the contract voidable.
Among the defences to the action of specific performance
one will sometimes find mention of ' want of mutuality.' But
this seems to disappear on examination^ It was at one time
thought that if the purchaser had signed an agreement to
purchase, but the vendor had not signed an agreement to sell,
the vendor could not obtain specific performance. That 4th
section of the Statute of Frauds requires, you will remember,
only the signature of the party to be charged ; but it was
argued that a Court of Equity would not enforce a contract
against one party while the other was free. However, this
argument was overruled on the ground that the vendor by
filing a bill asking for specific performance became bound by
the contract, so that from that moment there was the desired
' mutuality^' So it has been said sometimes that if a man
agrees to sell what is not his he can not enforce specific per-
formance of the contract. Observe that a man may agree to
sell what is not his and yet be able to fulfil his agreement.
I agree to sell Blackacre to you ; Blackacre belongs to X ;
but having made this agreement I buy Blackacre and am
ready to convey it to you. It was said that in such a case
you could not obtain specific performance of the contract
against me, since at the time when it was made I could not
have obtained specific performance against you — for the Court
of course could not compel you to buy Blackacre since it
could not compel X, to whom it then belonged, to sell it. But
on the whole the cases seem to show that this supposed 'want
of mutuality ' is no defence if when the time comes for com-
pleting the contract 1 show a good title to Blackacre; you can
^ See the question discussed in Aslibnrner on Equity, pp. 557 et seq.
^ See Martin v. Mitchell, 2 J. and \V. at p. 426.
248 Lectui'es on Equity Lect.
not resist my action on the ground that I acquired that title
after the date of the contract'.
Other defences there are. The Court will not by a judg-
ment for specific performance order a man to do what he can
not do, or can not do lawfully. I thought that Blackacre was
mine ; I agreed to sell it to you ; upon examination it turns
out that Blackacre belongs not to me, but to X ; the Court
will not order me to convey to you an estate that belongs to
X. I am a trustee of Blackacre ; in breach of my trust I agree
to sell Blackacre to you ; the Court will not compel me to
convey it to you. I am owner of Blackacre ; I agree to sell it
to A, and then I agree to sell it to B ; the Court will not
compel me to convey it to B. It will not compel me to do
a wrong. You will notice that we are not here trenching
on the subject of contracts tainted by illegality. But the case
— it may very easily happen — that I offer a great mass of
lands for sale, and that when my title deeds are examined it is
discovered that I have agreed to sell a piece of land that is not
mine ; here is a contract for breach of which damages may be
recovered ; it is in no way tainted by illegality — but I can not
be compelled to perform it specifically.
Lastly it used to be said that the Court would not thrust
a doubtful title upon a purchaser. If the purchaser could
show that there was some doubtful point of law involved in
the vendor's title, then the Court would not compel the pur-
chaser to take it. The Court would not decide the question ;
it would say ' Here is a seriously arguable question — that is
a sufficient obstacle to specific performance at the suit of the
vendor.' But of late years the Courts have grown much bolder
in this matter. Of course you will understand that a judgment
of specific performance is in no sense a judgment in rein. A
purchaser may well be compelled to take what afterwards
proves to be a bad title. For example a purchaser may bind
himself to demand no more than a five years' title, or to
demand no title at all. He is held to his contract, and after-
^ Hoggart V. Scott, i R. and M. 293 ; Salisbury v. Hatcher, 2 Y. and C. C. C.
54. But note that until the seller has acquired the land the buyer may repudiate
the contract ; and see the whole matter discussed in HalkeU y. Lord Dudley, 1907,
1 Ch. 590.
XIX Doubtful Titles 249
wards it may turn out that he got a bad title. But even when
the purchaser has not thus contracted away his right to
require a good title it may happen that a bad title will be
thrust upon him. A sells to B ; B objects to A's title ; urges
that according to the deeds the estate belongs to X not to A ;
A brings his action against B, the Court decides the point in
A's favour ; compels B to complete the purchase. Some
years afterwards X appears upon the scene ; he sues B for the
land. The judgment which compelled B to accept the title is
not a defence for him, it is no estoppel against X ; X can say
' This judgment is res inter alios acta — I have not as yet been
heard.' Therefore it was natural that the Courts should be
somewhat reluctant to force dubious titles upon unwilling
purchasers. However, the modern cases oblige us to say that
the doubt which is to serve as the purchaser's defence must be
a very serious doubt. A purchaser has even been compelled
to accept a title under an obscure will when the judge — it was
Sir George Jessel — before whom the case came had to dissent
from another judgment pronounced on the very same will
before he could hold that the title was a good one {Baker v.
White L.R. 20 Eq. 166) ; and a purchaser has often been
compelled to accept a title where no one could have said that
there was not a very arguable question to be decided \
Our dealings with specific performance should induce us to
say a little more about agreements for the sale of land and
their effect. Normally in this country a considerable time
elapses between the agreement for sale and the conveyance,
during which time the purchaser is engaged in investigating
the vendor's title. Of course it is just possible that there
never should be any agreement, or any binding agreement,
for sale distinct from the conveyance. In conversation you
make me an offer of ^looo for Blackacre, and I at once sit
down and make a deed of conveyance and you at once pay
the price. However this is not the way in which business is
done. Usually there are two distinct acts in the law ; the
^ See In re Carter and Kenderdine's Contract, 1897, 1 Ch. 776. The cases
are discussed in Fry on Specific Performance, 4th edition, chap, xviii, and
Williams on Vendors and Purchasers, looj :/ scq.
250 Lectures on Equity Lect.
agreement on the one hand, the conve^-ance on the other ; and
weeks or months elapse between the two.
Now we have on a previous occasion seen the error of
Austin's dictum that the mere agreement for sale transfers the
dominium, the jtis in re. In the sale of specific goods in a
deliverable state that is so, but in the sale of land the
agreement does nothing of the kind. The most that it
does is that it gives to the purchaser an equitable estate
in the land, a right good against those who claim under the
vendor by gratuitous title, or who have or ought to have
notice of it. In this sense the purchaser acquires an estate in
the land — suppose that he has agreed to buy the fee simple,
there is something to descend to his heir, there is something
that will pass by a devise of all my real estate. But for the
Acts of Parliament which it is convenient to refer to collec-
tively as Locke King's Acts\ the heir or devisee would even
have a right to call upon the executor or administrator to pay
for this estate out of the purchaser's personal estate. As it is,
though he can no longer claim this exoneration from the
vendor's lien, yet the estate comes to him as part of the
purchaser's realty. And so when the contract is signed the
purchaser has rights that he can convey to another ; they are
not treated as a mere chose in action ; for the purpose of con-
veyance he has already an equitable estate in the land, though
one which is subject to the vendor's lien for the unpaid purchase
money. But the vendor has as yet the legal estate in the land,
and any one who purchases from the purchaser must purchase
subject to those legal rights. Unless in the case of some very
peculiar agreement the vendor may keep the legal estate, and
may keep possession of the land until he is paid his price. If
you say that the contract passes ownership, be careful to say
that it does so only in equity.
So again it is common enough to say that the vendor be-
comes a trustee for the purchaser. And for certain purposes
this is true enough. For example a man contracted to sell
land, the title was accepted, but before conveyance he died,
having b}' his will devised his real estate to X, and all real
estate held b} him upon any trust to Y ; it was neld by
^ See ante, p. 212,
XIX The Vendors Lien 251
Jessel M.R. that the legal estate in the land sold passed under
the latter devise and not under the former {Lysaght v.
Edwards, 2 Ch. D. 499)^ He had become a trustee of the land
that he had contracted to sell. Still the trusteeship of the
unpaid vendor is a very peculiar trusteeship ; one that stands
by itself. In some respects he is rather in the position of the
mortgagee than of the trustee. He can say I will not part
with this land, I will not give up the legal estate, I will not
deliver possession until I am paid. Then if the purchaser will
not pay he has a right resembling that of foreclosure. He
can go to the Court ; the Court will order the purchaser to
pay within a reasonable time, and in default of payment the
purchaser will lose his right to the land under the contract,
and the vendor will be in the same position as that in which
he was before the contract was made, he will be owner at law
and in equity.
Then again we may say that in another respect the pur-
chaser, so soon as the contract is made, is treated as though
he were the owner, provided that the contract is enforce-
able specifically. In the absence of agreement to the
contrary the risk of loss is with him. The house that is sold
is burnt down by accident ; the purchaser must bear the loss-.
So on the other hand if trees be blown down these windfalls
belong in equity to him^ And so again if the vendor wilfully
damages the land that he has sold he must pay for it ; nay
more, he is expected to take reasonable care of what he has
sold, so long as it is in his possession*. In all these respects,
it may be said, equity treats the purchaser as owner, the
vendor as one who is in possession of another person's pro-
perty. But then remember that there is a sphere into which
equity can not enter ; suppose that this vendor sells and
conveys to one who has no notice of this previous contract for
sale, then you will see soon enough what ownership ' in equity'
means. That contract passed r\o jits in rem.
And then observe the effect of conveyance. We will
^ Cf. In re Thomas, 34 Ch. D. 166.
2 Paine v. MelUr, 6 Ves. 347 ; 5 R.R. 327.
^ Magennis v. Fallon, 2 Molloy, 561, 591, and Poole v. Shergold, i Cox, 273.
■* Royal Bristol Society v. Boinash, 35 Ch. D. 390.
252 Lectures on Equity Lect.
suppose that the vendor makes a conve}'ance without receiv-
ing the price, or without receiving the whole price. He is still
said to have a lien for the unpaid purchase money. This
term 'vendor's lien' is often applied indifferently to the rights
of a vendor who has not yet been paid and has not yet
conveyed, and to the rights of a vendor who has not yet been
paid but who has conveyed. But really these rights are of
different orders. In the first case the vendor is legal owner
of the land, and he can refuse to part with the land until he is
paid — unless indeed he has expressly contracted to do so : he
relies on this legal right. In the latter case he has parted
with his land ; the only right that the common law gives him
is a purely personal right, a right to sue for the purchase
money. Equity does something more for him : it gives him
what is (with no great accuracy) called a lien on the land —
with no great accuracy, for in general a lien signifies a right
to retain what you have already in your possession, and
here our vendor has parted with possession. It is a handy
equitable right. It comes to this, that against the purchaser
and those persons — but only those persons — against whom
an equity will prevail, the unpaid vendor after conveyance
has a charge upon the land, which charge he can enforce by
demanding that the estate be sold and that he be paid what
is due to him out of the proceeds of the sale. Against whom
is such an equity good? Against whom are equitable estates
in general good? This equity can be enforced against the
purchaser, his representatives, those claiming under him as
volunteers, against any later equity (unless there is some
ground, such as negligence, for postponing the older to the
younger equity), even against those who have legal rights in
the land, unless there has been a bona fide purchase for value
without notice of this vendor's lien. But the acquisition of
the legal estate bona fide for value and without notice puts an
end to the lien\ You see then that the rights of the unpaid
vendor are radically altered by the conveyance.
You must not think that an unpaid vendor always has this
right, this lien for unpaid purchase money. He may expressly
waive it, and often a question may arise whether he has not
* See Harris v. Tiibb, 42 Ch. D. 79.
XIX Notice of Vendor s Lien 253
by implication waived it by taking some other security for his
money. The general rule seems to be that if he takes another
security, or if for example he takes a charge on a sum of
stock, or a mortgage on another estate, or if he takes a
mortgage on a part only of the estate that he has sold, this is
presumably an abandonment of his lien; but taking a pro-
missory note, a bill of exchange, or a bond is not sufficient.
It must be remembered that the burden of proving the waiver
is upon those denying the existence of the lien^
The vendor is not precluded from insisting on this equit-
able right by a statement either in the conveyance or on the
back of the conveyance that he has received the purchase
money. Equity was inclined to treat the receipt clause in the
body of the deed and also the endorsed receipt as formsl At
law the receipt clause in the body of the deed being under
the vendor's seal would estop him from denying that he had
received all that he said that he had received. But in equity
as against the purchaser the vendor was allowed to prove that
despite these receipt clauses he had not really received his
money. As against persons claiming for value under the
purchaser — sub-purchasers let us call them — the rule I believe
was that if there was a proper receipt on the back of the deed,
then, at all events if there was also a receipt in the body of
the deed, this sub-purchaser would not have notice of the
vendor's lien ; but the absence of a receipt on the back of the
deed was sufficient to give him implied notice of a vendor's
lien, even though there was a receipt in the body of the deed.
Therefore in perusing titles one was always careful to see that
there was a proper endorsed receipt. The law has been
altered in some respects by the 54th and 55th sections of the
Conveyancing Act, 1881. A receipt in the body of the deed
comes now to serve all the purposes that were served by the
two receipts which were formerly usual ; and in favour of a
subsequent purchaser a receipt either in the body of the deed
or endorsed therein is to be sufficient evidence that the money
was really paid unless that purchaser has some other notice
that it was not paid.
^ See Mackreth v. Sy»ions, 15 Ves. 329, White and Tudor, L.C. vol. II. 926.
^ See Kenttedy v. Green, 3 M. and K. 699, 716,
LECTURE XX.
INJUNCTIONS.
By means of its decrees for specific performance the Court
of Cliancery obtained command of one great province of law,
namely of contracts for the sale of land. It fashioned another
weapon, namely the injunction, which was far more flexible,
far more generally applicable, and thereby it obtained not
merely certain particular fields of justice, but a power of
making its own doctrines prevail at the expense of the
doctrines of the common law.
Let us see what an injunction is. It is an order made by
the Court forbidding a person or class of persons from doing
a certain act, or acts of a certain class, upon pain of going to
prison for an indefinite time as contemners of the Court.
This penalty will not be mentioned in the injunction, but if
knowing of an injunction you break it, then the Court has a
large discretionary power of sending you to prison and keeping
you there.
I will give you an example or two of the form that an
injunction takes. 'Let an injunction be awarded against the
defendants the Mayor, Aldermen and Burgesses of Leeds to
restrain the said defendants, their servants, agents and work-
men from causing or permitting the sewage of the borough of
Leeds or any part thereof to flow or pass through the main
sewer or any other outfall into the river Aire unless and until
the same shall be sufficiently purified and deodorised so as
not to be or create a nuisance or become injurious to the
public health.'
' Let the defendant E be restrained from infringing the
plaintiff's trade marks registered under the Trade Marks
Lect. XX Form of Injimctions 255
Registration Act, 1875, or either of them, and from selling or
offering for sale any tea in, or from otherwise using, wrappers
having imprinted thereon any imitation or colourable imitation
of the plaintiff's trade marks or either of them.'
'Let an injunction be awarded to restrain the defendant
from using or permitting to be used the premises called X or
any part thereof for the purpose of balloon ascents, fireworks,
dancing, music, or other sports or entertainments, whereby a
nuisance may be occasioned to the annoyance or injury of
any inmates of the asylum in the pleadings mentioned.'
There are certain technical terms the meaning of which
you should understand if you are to read about injunctions.
Very often a plaintiff wants an injunction at once ; he wants
to have it the moment he has begun his action and loner
before that action can be tried. Put the case that my neigh-
bour is building a wall close to my land and is thereby
beginning to block out the light from ancient windows of
mine. I want an injunction at once, and I shall prejudice my
case for an injunction if I allow him to go on building until
the action can be tried — very possibly though I proceed with
the utmost despatch the action will not be tried for many
months to come. So soon as I have begun my action, so
soon as I have served a writ of summons upon my adver-
sary, I shall make an application, a motion to the Court
for an injunction \ This will be an ' interlocutory application,'
and the injunction if granted will be an interlocutory injunc-
tion. Proceedings which take place in an action before the
trial are said to be interlocutory. I shall serve my adversary
with a notice telling him that on the next motion day (in
the Chancery Division one day a week is usually given for
the hearing of motions) my counsel will apply to the Court-
for an injunction. Then if by the affidavit that I produce
I make what the judge considers a sufficient case, he will
grant an injunction. This however will not be a perpetual
injunction; it will be an interlocutory injunction to hold good
' Commonly leave is obtained to serve notice of this motion with the writ.
2 In the King's Bench Division applications for interlocutory or 'interim'
injunctions are made to the judge in Chambers either ex jjuru or on a summons,
and not by motion in Court.
256 Lectures on Equity Lf,ct.
until the trial of the action. And I shall be obliged if I
obtain it to give ' an undertaking in damages ' — that is to say
by the mouth of my counsel I shall have to undertake to pay
any damages which the Court may hereafter award to the
defendant in consequence of my having obtained an injunction
when I ought not to have had one. The order will be in
some such form as this.
' Upon motion by counsel for the plaintiff and upon hearing
counsel for the defendant and upon reading such and such
affidavits, and the plaintiff by his counsel undertaking to abide
by any order that this Court may make as to damages in case
this Court shall hereafter be of opinion that the defendant
shall have sustained any by reason of this order which the
plaintiff ought to pay, this Court doth order that the defendant,
his servants, workmen and agents, be restrained by injunction
from &c. until judgment in this action, or until further order.'
But further there is sometimes so much need for speedy
procedure, that the plaintiff can not even wait. to serve upon
the defendant a notice of motion, but having obtained his
writ and filed an affidavit about the facts applies to the Court
€X parte, and obtains from the Court an ex parte injunction —
these words ex parte signifying that the defendant has not had
an opportunity of being heard. In general such an injunction
will be limited to a few days, e.g. until the next motion day,
and then the defendant will have an opportunity of appearing
and saying what he has to say against a continuance of the
injunction until the trial. In such cases the Court is acting
upon prima facie evidence — in the case of the ex parte injunc-
tion it acts upon the evidence produced by the plaintiff without
hearing the defendant's version of the story. Then comes the
trial, and the plaintiff either establishes his right to a perpetual
injunction, or fails to do so. In the former case an injunction
is granted without any limit of time which forbids the defen-
dant to do the acts in question. In the other case the action
is dismissed and an inquiry is ordered as to the damages
which the defendant has suffered by reason of the interlo-
cutory injunction, and the plaintiff will be ordered to pay
these damages.
In general an injunction forbids a defendant to do certain
XX Mandatory Injunctions 257
acts, but sometimes it forbids him to permit the continuance
of a wrongful state of things that ah-eady exists at the time
when the injunction is issued. The Court does not merely
say -'Do not build any wall to the injury of the plaintiff's
right of light ' ; it can say ' Do not permit the continuance
of any wall to the injury of the plaintift^'s right of light.' If
such a wall already exists then the defendant is, in effect,
told to pull it down. An injunction which takes this latter
form, an injunction forbidding the defendant to permit the
continuance of an existing state of things is called a mandatory
injunction^ A mandatory injunction is less easily to be had
than a merely prohibitive injunction ; in general it will not be
granted until the plaintiff has fully proved that the existing
state of things is wrongful.
Now this weapon was fashioned by the Court of Chancery
and was used by it for all manner of purposes. One of these
purposes is of great historical importance. It was the injunc-
tion which in the last resort enabled that Court to enforce its
equitable doctrines, for it would grant an injunction to prevent
a man suing in a court of law, or taking advantage of a
judgment obtained in a court of law. I have already told
you how this right of the Chancery was established in the
reign of James I after the great quarrel between Coke and
Ellesmere". It gave the Chancery the upper hand. The
Chancellor could say to a person ' You must not go to a
court of law,' and the court of law had no power to say ' You
must not go to a court of equity.' Well, when the Judicature
Acts came into force in 1875 all this came to an end. It was
expressly enacted by the Act of 1873 section 24 (5) that no
cause or proceeding at any time pending in the High Court
should be restrained by prohibition or injunction. If in an
action in the King's Bench Division — one of the old common
law actions — the defendant has some equitable defence, he can
plead it, and the court must listen to it and administer the
rules of equity as well as the rules of law. However our Court
^ A mandatory injunction is now usually put in the form of a direct order to
do the act required by the Court.
■^ Ante, p. 9 ; and see the notes to the Earl of Oxford's Case, White and
Tudor L. C, vol. i. 739.
M. ii. I
258 Lectures on Equity Lect.
still has power, and occasionally exercises it, to prohibit persons
from suing in Colonial or foreign courts. I say this because I
wish to remind you that the Chancery never claimed any
superiority over the Courts of Common Law. It could not
send orders to them ; but it could prohibit a person from
going to them. And just so now our High Court of Justice
has no superiority over a Colonial court, and of course it has
no superiority over a French or German Court, nevertheless,
in a proper case it will prohibit a person from suing there.
Equity acts in personam — this has been an important maxim.
Equity did not presume to interfere with or to control the
action of the common law courts. It acted upon the person
who was inequitably suing in those courts.
In this way the Judicature Act curtailed the field of
injunctions ; in another way it extended that field. But
first I ought to remark that the Common Law Procedure
Act of 1854 section 79 (now repealed) gave to the Courts
of Common Law what in terms was a very large power
of granting injunctions, but that those courts being un-
accustomed to the exercise of such a power made very
little use of it.
Then came the Judicature Act of 1873 (sec. 25 sub-sec. 8).
' A mandamus or an injunction may be granted or a receiver
appointed by an interlocutory order of the Court in all cases
in which it shall appear to the Court to be just or convenient
that such order should be made ; and any such order may be
made either unconditionally or upon such terms and condi-
tions as the Court shall think just ; and if an injunction is
asked either before or at or after the hearing of any cause or
matter, to prevent any threatened or apprehended waste or
trespass, such injunction may be granted, if the Court shall
think fit, whether the person against whom such injunction is
sought is or is not in possession under any claim of title or
otherwise, or (if out of possession) does or does not claim a
right to do the act sought to be restrained under any colour
of title ; and whether the estates claimed by both or by either
of the parties are legal or equitable.'
Now this is the statute law of the land, and you will
observe how wide are the terms employed, how large a power
XX Waste and Trespass to Land 259
of granting injunctions it gave to the Court. That power now
certainly goes beyond the power that was formerly possessed
by the Court of Chancery. The concluding phrases of the
section show that this — at least in certain definite respects —
was the intended effect of the section. One of the few definite
restrictions — and after all this was not very definite — which
the Court of Chancery had set to its own power of granting
injunctions was to be found in an unwillingness to interfere in
disputes about legal rights in land when no equitable rights
were involved. X was in possession of land, A was asserting
title to that land, a purely legal title ; he was bringing an
action of ejectment against X. Meanwhile X was cutting
down timber, pulling down houses, or committing other acts
which would be waste if committed by a tenant for life.
Equity was in such a case unwilling to interfere — for the
question at stake was a purely legal question, namely whether
X or A was owner of the land. It would only interfere
against flagrant acts of spoliation which would immediately
damage the disputed land. And so again if X was in posses-
sion and A without claiming title entered on the land and
committed acts of trespass, equity was not very willing to
interfere against A. The whole matter might well be left to
a court of law — still if A was doing irreparable damage to the
land the Court of Chancery would interfere. Well the last
phrases of the section that I have read are aimed against this
restriction. Before or at or after the hearing the Court may
grant an injunction to prevent threatened or apprehended
waste or trespass, if the Court shall think fit, whether the
person against whom such injunction is sought is or is not in
possession under any claim of title or if out of possession
does or does not claim a right to do the act sought to
be restrained under any colour of title ; and whether the
estates claimed by both or either of the parties are legal
or equitable.
But further the High Court now has got not only the old
power of the Court of Chancery, it has also the powers
granted by the section of the Act of 1873 that I have read.
The consequence is that since 1875 injunctions have been
granted in cases in which they were not granted before that
17 — 2
26o Lectures on Equity Lect.
Act. I have already spoken of matters of waste and trespass;
the Court of Chancery's unwillingness to meddle with ques-
tions of pure common law title to land no longer stands in
the way. But in the second place it had been settled that
the Court of Chancery would not grant an injunction to
restrain, either before trial or after trial, the publication or
continued publication of a libel. The reason was this. The
publication of a libel is usually a crime, and the Chancery
having no jurisdiction in criminal matters steered very clear
of the field of crime — there was to be no criminal equity.
Besides, as we are often told, the question of libel or no libel
is pre-eminently one for a jury, and the Court of Chancery
knew no trial by jury. However, since 1875 it has been
decided that the Courts of Common Law, though they had not
exercised this power, had under the Common Law Procedure
Act of 1854 obtained power to grant an injunction against
the publication of a libel, and that the High Court now has
this power, and can grant the injunction at the trial (a
perpetual injunction) or before the trial (an interlocutory
injunction). Its power is only limited by what is just and
convenient. However, a good many cases are now tending
toward establishing the rule that an interlocutory injunction
against a libel is hardly ever to be had. An action for libel
is one of the actions in which a defendant has a right to trial
by jury. When the jury has found him guilty of publishing
a libel there is no difficulty about granting an injunction to
prevent a continuance of the publication as an additional
remedy beside the judgment for damages. But before trial
an injunction is hardly to be had. The defendant may allege
that the libel is true ; in this case he does no civil wrong in
publishing it, and we ought not to assume against him before
the trial that he will not be able to set up this defence and
make it good. This was the effect of the decision of the
Court of Appeal in the case of Bonnard v. Perry nian, 1891,
2 Ch. 269. But the Court has clear jurisdiction to grant an
interlocutory injunction, even in an action for libel, if a proper
case for it be made out. See Monson v. Tussauds, 1894,
I Q.B. 671, a case that you will find both amusing and
instructive.
XX Injunctions in Cases of Tort 261
Well our written, our statute law now says that an
injunction, even an interlocutory injunction, may be granted
whenever it is just or convenient. Of course, however, as I
have just shown by reference to the case of libel, judges must
follow the stream of decisions in adjudging that the issue of
an injunction will or will not be just or convenient.
I think that we shall best divide the work of injunctions
by taking as our two heads Tort and Contract
A very large part of the whole province of Tort is a
proper field for the injunction. I should say that the only
torts which lie outside the field of injunctions are assault and
battery, false imprisonment, and malicious prosecution. I do
not think that an injunction has been used or could be used
to prevent these torts, which if they be torts will also at least
in most cases be crimes. Here there are other remedies. If
you go in fear of a man you can have him bound over to
keep the peace, while if you are wrongfully imprisoned the
writ of habeas corpus with its rapid procedure should serve
your turn. A civil court, again, must not prohibit a man
from instituting criminal proceedings. The Attorney-General's
Nolle prosequi should be a sufficient preventive check on
criminal proceedings of an obviously vexatious kind. But
with these exceptions it would be hard to find a tort which
might not in a given case be a proper subject for an injunc-
tion. Of libel I have already spoken, and something I have
said of trespass and of waste. It was the Chancery's power
of issuing injunctions against acts of waste that begot the
doctrine of equitable waste. Sometimes the Chancery would
give an injunction against waste for which a Court of Law
would give no damages. Nuisance is a fertile field, so is the
infringement of copyright, of patents, of trade marks. Indeed
there are many rights which are chiefly, though not solely,
protected by an injunction — the remedy by action for damages
being but a poor one. Damages and injunction are not, you
will understand, alternative remedies — in old times you could
get the one from the Courts of Common Law, the other from
the Court of Equity ; now-a-days you may well get both
from the same court, the same division of the court in the same
action, damages to compensate you for wrong suffered, and
262 Lectures on Equity Lect.
an injunction to prevent a continuance of the wrong, it may
be a mandatory injunction to prevent the continued existence
of a wrongful state of things. But while the remedy by
damages is a matter of strict right, the remedy by injunction
is not. This is best seen by referring to the cases in which a
plaintiff can recover nominal damages. He has not really
been hurt ; he has not been made the poorer ; but still his
rights have been infringed and the court pronounces a judg-
ment in his favour. But the court will not interfere by
injunction where the tort complained of, though a tort, is one
which does no real damage, and it will not interfere by
injunction if damages will clearly be an adequate remedy^
Then again it may consider the plaintiff's conduct, and in
particular any delay of his in bringing the action. To an
action for damages delay is no defence unless the case has
been brought within one of the Statutes of Limitation.
Either the plaintiff still is entitled to the remedy or it has
been taken from him by a statute, and you can fix the precise
moment of time at which the statute takes eftect — one mo-
ment he has a remedy, the next moment he has none. It is
not so with the injunction ; the court may well hold for
example that my neighbour must pay me damages for having
blocked out light from my ancient windows, and yet, as
I stood by and let him build, it would be inequitable to
compel him to pull down his wall. Especially when a man-
datory injunction is to be sought, the plaintiff must at once
take action and prosecute his action diligently. The court, it
is said, in granting a mandatory injunction may look at the
balance of convenience. The defendant is by supposition
in the wrong, but on the whole and considering the conduct
of both parties, shall we not be inflicting on him more harm
than he deserves if we compel him to pull down his wall-?
^ See e.g. Llandudno Urban District Council v. Woods, 1899, 1 Ch. 705 ;
Behrensv. Richards, 1905, 2 Ch. 614; and see Fielden v. Cox (1906), 22 Times
Reports, 411, where Buckley J. refused to grant an injunction against a Cambridge
medical student and three young brothers who were alleged to have disturbed
game by hunting for moths on a highway and on some adjoining lands near
Whittlesea Mere. The plaintiff recovered a shilling as damages, which had been
paid into court, and he was ordered to pay the whole of the defendants' costs.
^ See the cases collected in Seton on Decrees (1901), vol. i. pp. 528 ei seq.
XX Injunctions in Cases of Contract 263
Within the province of Contract the injunction plays a
considerable part, but not so large as that which it plays in
the field of Tort. Equity it will be remembered has here
another weapon, namely the decree for specific performance.
It has come to a body of doctrine about the use of that
remedy, has decided that it is applicable to contracts of
certain classes, in particular to contracts for the sale of land,
and that it is not applicable to contracts of some other classes.
However, for the enforcement of contract, it has used the in-
junction as well as the decree for specific performance. We
must start with this principle that the injunction is only appli-
cable to breaches of negative contracts, i.e. contracts not to do,
as distinguished from positive contracts, i.e. contracts to do
something. For the enforcement of negative contracts it is very
largely employed, for example it has been the chief method
of enforcing negative contracts contained in leases, covenants
not to assign, not to use as a public house, not to sell hay or
straw off the farm. You will remember how it was as an out-
come of this power to grant injunctions that the doctrine about
covenants which run with the land, not at law but in equity,
made its appearance. And you will remember that that
doctrine is confined to negative covenants, it goes no further
than the remedy by injunction will go\ Then again a common
case for an injunction arises upon breach of a covenant against
carrying on business of a certain kind. You will find that
the decisions which have settled the limits between lawful and
unlawful restraint of trade have been chiefly decisions of
Courts of Equity given in suits for injunctions. These I men-
tion as common cases. But I think that the rule is a ver)-
general one that the breach of a negative contract can be
restrained by injunction. And applications for an injunction
in these cases are treated somewhat differently from similar
applications in actions founded on torts. We hear much less
of 'the balance of convenience' when there is a contract and
the applicant is not bound to show that he has already
suffered actual damage. When a man has definitely con-
tracted not to do a certain thing, it is not for him to say that
it will be greatly to his convenience, and not much to the
^ Ante, pp. 166-168.
264 Lectures on Eqnity Lect.
inconvenience of the other party, that he should be allowed
to do it. But this general rule seems to be limited by this,
that you arc not by means of an injunction to compel the
specific performance of a positive contract which does not fall
within one of those classes of contract of which the court will
decree the specific performance. Suppose that I agree to
serve you as your clerk for ten years, no doubt this agreement
will (at least in any common case) imply a term that I am not
during that period of ten years to serve any other person.
But a contract of hire and service is not one of those contracts
of which the court will decree the specific performance.
Therefore you cannot directly compel me to serve you. Can
3'ou do so indirectly by obtaining an injunction to prevent
me from breaking that negative but unexpressed term in the
contract that I am not to enter the service of anybody else }
No 5'ou can not. This seems well settled, that a merely
implied negative term in a contract which is substantially
positive can not be enforced by injunction. There has, how-
ever, been some difference of opinion as to cases in which an
express negative covenant has been added as an accessory
to an express positive covenant. In the famous case of
Liimley v. Wagner, i D.M.G. 604, the defendant had agreed
to sing at the plaintiff's theatre and not elsewhere without the
plaintiff's permission ; it was held that though she could not
be compelled to fulfil the positive part of the agreement she
could be restrained from breaking the negative part. In the
well-known case, however, of Whitivood CJieinical Co. v. Hard-
Diian, 1 891, 2 Ch. 416, Lindley L.J. said that he looked upon
Ltnnley v. Wagner as an anomaly not to be extended. In
that case the manager of a manufacturing company had
agreed that during a specified term he would give all his time
to the business. It was held by the Court of Appeal that the
company could not have an injunction to prevent him giving
part of his time to a rival company. The state of affairs
seems to be this. You can not indirectly by means of an
injunction enforce the specific performance of an agreement
which is of such a kind that specific performance of it would
not be directly decreed ; but if you can separate from this
positive agreement an express negative agreement that the
XX Negative Agreements 265
defendant will not do certain specific things, then you may-
have an injunction to restrain a breach of that negative agree-
ments
^ As to the enforcement hy iniunction of direct covenants or agreements between
masters and servants that the servant after the termination of the service shall not
(usually within some named limits of time or space or of both) engage in any
similar work or business the practice of the courts is now governed by the case of
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., 1894, A.C. 535.
Such agreements, although in restraint of trade, will be enforced by injunction if
not wider than is reasonably necessary for the protection of the employer and not
injurious to the public interests of this country.
On the other hand if the master or employer has wrongfully determined the
service then he is not merely liable in damages for the wrongful dismissal but he
is also thereby precluded from enforcing the promise made by the servant not 10
carry on his trade thereafter within the named limits of time or space. Geiioal
Bill Posting Company LiiuUed w Atkinson, 1909, A.C. 118.
LECTURE XXI.
MORTGAGESo
You will have read how Equity came to interest itself in
mortgages. In consequence of its doctrine that a mortgage
is merely a security for money, a security which can be
redeemed although, according to the plain wording of the
mortgage deed, the mortgagee has become the absolute owner
of the land, it drew almost every dispute about mortgages
into the sphere of its jurisdiction and had the last word to
say about them.
I think that I may best serve you by speaking of the
structure of mortgage deeds. We shall have to consider what
they say and what they do. You will know that the Con-
veyancing Act of 1 88 1 has very much shortened the forms
hitherto in use. It has done this by saying that in the absence
of any expression of a contrary intention a mortgage deed is
to be deemed to contain certain clauses. These clauses are
like, though not exactly like, certain clauses which used to be
expressly inserted in the deed — set out in full. But it will be
expedient that for a while we should go behind the Act and
we will consider a mortgage of the most simple and elemen-
tary kind. Doe is tenant in fee simple of Blackacre, in which
he has an unencumbered estate ; Nokes is going to lend him
;^iooo upon the security of Blackacre and the debt is to bear
interest at the rate of ^4 per cent, per annum. Let us begin.
' This Indenture made the ist day of January 1880 between
Doe of the one part and Nokes of the other part Witnesseth
that in consideration of the sum of ;{J'iooo upon the execution
of these presents paid by the said Nokes to the said Doe (the
Lect. XXI A simple Mortgage Deed 267
receipt of which said sum the said Doe doth hereby acknow-
ledge) He the said Doe doth hereby for himself his heirs,
executors and administrators covenant with the said Nokes
his executors and administrators that the said Doe his heirs
executors or administrators will on the ist day of July next
pay to the said Nokes his executors, administrators or assigns
the sum of ;;^iooo with interest for the same in the meantime
at the rate of 4 per cent, per annum And that if the said sum
of ;^iooo or any part thereof shall remain unpaid after the
said 1st day of July the said Doe his heirs executors or adminis-
trators will pay to the said Nokes his executors administrators
or assigns interest for the said sum of ^1000 or for so much
thereof as shall for the time being remain unpaid at the rate
of 4 per cent, per annum by equal half-yearly payments on the
1st day of January and the ist day of July.'
Here ends one section of the deed and as yet we have
come upon nothing that affects Blackacre, nothing that can
be called a mortgage. We have a mere covenant, creating of
course a specialty debt, that Doe will repay the loan with
interest six months hence, and that in case of non-payment
on a certain day Doe will go on paying interest half-yearly.
Then opens a second section of the deed.
* And this Indenture also witnesseth that for the considera-
tion aforesaid the said Doe doth hereby grant unto the said
Nokes his heirs and assigns All that piece of land called
Blackacre [Here you describe the property — 'the parcels' — and
you used to insert the 'general words ' and the 'estate clause']^
To have and to hold unto the said Nokes his heirs and
assigns to the use of the said Nokes his heirs and assigns
subject to the proviso for redemption hereinafter contained.'
You see you make an absolute conveyance of the fee
simple to Nokes, just mentioning at the end of it that it is
subject to a proviso for redemption which is coming. This
proviso for redemption — in strictness it were better called a
proviso for reconveyance — comes immediately.
'Provided always and it is hereby agreed and declared that if
the said Doe his heirs, executors, administrators or assigns shall
on the 1st of July next pay to the said Nokes his executors
^ See now the Conveyancing Act, 1881, ss. 6 and d^.
268 Lectures on Equity Lect.
administrators or assigns the said sum of i;'iooo with interest
for the same in the meantime at the rate of 4 per cent, per
annum, then the said Nokes his heirs or assigns shall at any-
time thereafter upon the request and at the cost of the said
Doe his heirs, executors, administrators or assigns reconvey
the said premises to the use of the said Doe his heirs and
assigns or as he or they shall direct.'
Now there is a mortgage. It is a very imperfect deed, it
does not give to Nokes, the mortgagee, nearly all the rights
that should be given to him. Still here is all that is essential
to make a mortgage — a loan of money, in consideration
thereof a conveyance of land, subject to a proviso that if on a
given day the debt be paid off with interest the mortgagee shall
reconvey that land to the mortgagor. Now here let us pause
for a while and consider the effect of this short instrument,
for thereby we shall come to the reasons why mortgages were
not as a rule such short affairs as this. What are the rights
and duties of Doe the mortgagor, and Nokes the mortgagee.-*
Well, in the first place we note that Doe has bound himself
by covenant to pay Nokes a certain sum with interest on a
certain day. So soon as that day, the ist of July, 1880, is
passed without payment of the money, Nokes will have an
action on the covenant against Doe, will be able to obtain a
iudgment for what is due, will then have a judgment debt
owing to him, will be able to obtain execution against all
Doe's chattels and all Doe's land by fieri facias, elegit or the
like. Of course this is a somewhat small thing, every creditor
who has a specialty debt owing to him has as much as this,
and now-a-days every simple contract creditor is almost as
well off as a specialty creditor. A man advancing money
upon mortgage wants something better than this, he wants
some jus in rem, some right in certain specific things as well
as the mereyV/j in personam that the mortgagor's covenant will
give him. Still note that the mortgagee has thisyV/i- in per-
sonam, for in easily imaginable circumstances it will be of use
to him. He has advanced iJ"iooo upon the security of Black-
acre and we may suppose that like a prudent man he has
observed the wholesome rule which the court enforces upon
trustees, and has not lent more than two-thirds of the value
XXI Personal Action on Covenant 269
of Blackacre. Still in these days of agricultural depression it
is by no means impossible that he may hereafter find that
Blackacre is not worth ;^iooo. Then his personal remedy
against Doe, the mortgagor, who may be a solvent, wealthy
person, will be of great value to him. He may sell Blackacre
for ;^8oo and get ;^200 more by suing Doe upon the covenant,,
and even if Doe be insolvent, be bankrupt, he will have his
choice between realizing his insufficient security and taking a
dividend proportioned to the sum still due, or abandoning his
security and taking a dividend proportioned to the whole
debt. You should understand that it is by no means of the
essence of a mortgage that the mortgagee should look to the
mortgaged property alone for the repayment of the loan, on
the contrary he always or almost always can also look to the
personal liability of the mortgagor. He is not the less a
creditor because he is a secured creditor.
But of course it is more important to him that he should
have rights in Blackacre. And on the face of the mortgage
deed it seems plain enough that if the ist of July passes
without his debt being paid to him with interest, he will be
the absolute owner of Blackacre — or, to be more accurate,
unqualified tenant in fee simple of Blackacre. Of course if
on that day he be paid or tendered his principal and interest
then under the express words of the proviso for reconveyance,
he will be bound to reconvey. But then it is an extremely
rare, an almost unheard of, event, that there should be this
punctual payment or tender — indeed Nokes, who thinks that
he has found a permanent investment for his ^looo, would
probably be much annoyed if on the ist of July Doe appeared
with his 1020 sovereigns in hand. That is the worst of our
mortgage deed — owing to the action of equity, it is one long
siippressio veri and suggestio falsi'^. It does not in the least
explain the rights of the parties ; it suggests that they are
other than really they are.
Though the ist of July has passed, yet at any time before
foreclosure or sale Doe will be able to redeem the mortgage,
will be able to demand from Nokes a reconveyance if he
^ Cf. Lord BramweU'b icuiarks in Suits. Mai quess of i\orthuinpto>t, 1892, A.C.
pp. 18 aud 19.
270 Lectttres on Equity Lect.
tenders to him his principal, his interest, and his costs, I say
' until foreclosure or sale' — how there comes to be any talk of
a sale I shall explain hereafter. But what is a foreclosure?
Well, equity in effect said this: A mortgagee shall not become
the absolute owner of the mortgaged thing until he has come
into my court, until the mortgagor has had an opportunity ot
saying anything that he has to say, and also a last opportunity
definitely limited to him by my order of paying what is due
and redeeming the land. Only after a judicial proceeding
can the mortgagee become the owner of the land. Let us
understand a little about this judicial proceeding.
For some reason or another Nokes wishes to foreclose this
mortgage. After due notice given he begins an action against
Doe, the mortgagor, claiming by his writ^ that the mortgage
may be foreclosed. Of course it may happen that there is
some defence to this action — Doe, it is possible, may dispute
the existence of the mortgage, or say that it was obtained
by fraud — but if Doe has no such defence, if he is merely
unable or unwilling to pay the debt then he has no valid
defence at all. Very probably he will not appear in the
action, for he would gain nothing by appearance. At any rate
judgment is given against him. The judgment is in this
form : —
Let an account be taken of what is due to the plaintiff
for principal and interest on his mortgage in the pleadings
mentioned and for his costs of this cause, such costs to be
taxed. And upon the defendant paying to the plaintiff what
shall be certified to be due to him for principal, interest and
costs as aforesaid within six calendar months after the date
of the Master's certificate at such time and place as shall
be thereby appointed, let the plaintiff reconvey the heredita-
ments comprised in the said mortgage and deliver up on oath
all deeds and writings in his custody or power relating thereto
to the defendant or to whom he shall appoint. But in default
of the defendant paying what shall be so certified to be due
to him for such principal, interest and costs as aforesaid by
the time aforesaid, the defendant is from thenceforth to stand
absolutely debarred and foreclosed of and from all right, title,
1 Proceedings are uow usually by originating summonst
XXI Foreclostire Proceedings 271
interest and equity of redemption of, in and to the said
mortgaged hereditaments'.
Then in the judge's chambers Nokes the mortgagee will
prove what is due to him. The Master will then draw
up a certificate stating that this is the sum due and naming
some place and hour on the day six months from the date of
the certificate — I think that it was usual to name the Rolls
Chapel" — at which the money is to be paid. If matters have
gone so far as this we may be pretty certain that the money
will not be paid — it is only in novels, and in novels written
by ladies, that the mortgagee's hand is stayed at the last
moment by some god out of the machine. Yet another order
from the Court is still necessary before the foreclosure is
complete. We have as yet but an order 7iisi for foreclosure —
the defendant is to be foreclosed unless he pays — an order for
foreclosure absolute is necessary before the plaintiff mortgagee
will be safe. So he, or his solicitor on his behalf, attends on
the appointed day, and waits an hour (the certificate generally
gives the defendant an hour, e.g. 12 to i, for his appearance)
on the outlook for the mortgagor. An affidavit is sworn in
proof of this default, and a motion of course (a mere form)
is then made before the Court for foreclosure absolute^*.
Thereupon ' this Court doth order that the defendant Doe do
from henceforth stand absolutely debarred and foreclosed of
and from all right, title, interest and equity of redemption of,
in and to the said mortgaged hereditaments.' There are
cases in which the mortgagee can get an absolute foreclosure
at once — in particular if the mortgagor appears and consents
to this ; but here I can only follow up the ordinary course
of practice.
Just by the way I must mention an improvement intro-
duced by the Judicature Act — for it is typical of many other
improvements. Before 1875 a proceeding for foreclosure was
of course a proceeding in equity. In the eye of a Court of
Common Law the mortgagee was already owner of the land :
' See Seton (1901), vol. iii. 1895.
2 Now a room at the Royal Courts of Justice.
* The application is usually by summons whether the proceedings commenced
by originating summons or by writ.
272 Lectures on Equity Lect.
nothing that such a court could do would make him more of
an owner than he was. On the other hand there was one
thing that a Court of Equity could not do for him — it could
not give a judgment on the mortgagor's covenant for the
payment of the money. An action on a covenant was given by
Courts of Law, and if he wanted such a judgment (as well he
might) he would have had to go to a Court of Law. But
now, though the redemption and foreclosure of mortgages are
among the matters specially assigned to the Chancery Division,
that Division can since the Judicature Act give all relief,
whether equitable or legal, that the plaintiff is entitled to.
Now-a-days therefore in his foreclosure action the mortgagee
can obtain not only foreclosure, but a judgment on the
mortgagor's covenants
But to return from this bye-point. Now you might well
think that Nokes the mortgagee having taken these judicial
proceedings, having obtained a judgment for foreclosure — first
an order nisi, then an order absolute — would at last be able
to look upon Blackacre as his very own and to treat Doe as
having no interest in it. It is not so. A Court of Equity
will as the phrase goes ' reopen a foreclosure ' and permit the
mortgagor to redeem, and it has refused to lay down any
precise rules as to the circumstances in which it will do this.
I need say nothing of fraud, but fraud apart, it will sometimes
permit a foreclosed mortgagor to redeem. I think that the
last important case about this matter is Campbell v. Holyland,
7 Ch. D. 166, in which Jessel M.R. discussed the circumstances
in which a foreclosure would be reopened. If the mortgaged
property was far more valuable than the mortgage debt, if it
had for the mortgagor cipretiwn affectionis being an old family
estate, if the mortgagor was prevented from redeeming by
some accident, if he has come speedily — these all are circum-
stances in favour of permitting him to redeem, though an
absolute order for foreclosure has been made against him.
The Court's power to open the foreclosure is a highly discre-
tionary power — all the circumstances of the particular case
may be considered. What is more that power may be
1 Poulett V. Hill, 1893, I Ch. 277. It is regarded as an abuse ot the process
of the Court if two actions are brought. Williams v. Hunt, 1905, \ K.B. jJ2.
XXI Mortgagee taking Possession 2']2,
exercised not only as against the mortgagee but as against
one who after foreclosure has purchased the estate from the
mortgagee. One is not very safe in purchasing a foreclosed
estate, and owing to this meddlesome equit)' foreclosure is
not a procedure upon which prudent mortgagees will place
much of their reliance.
Well, we have considered two cases open to the mortgagee
— he can sue upon the covenant, he can foreclose. But is
there not another course open to him ? Why should he not
enter and take possession of the land that has been conveyed
to him? Suppose the mortgagor in possession, why should
not the mortgagee turn him out, cultivate the land and take
its profits? Suppose that the land when it was mortgaged
was occupied by tenants for years, why should not the
mortgagee — since he cannot turn them out — demand their
rents from them .'' In short, why should not Nokes enter
into the possession or the receipt of the rents and profits of
Blackacre. Certainly he can do this. If Doe the mortgagor
resisted him, refused to quit possession, a Court of Law would
give Nokes its assistance. Nokes would bring an ejectment
action against Doe. To this action under the old law Doe
would have had no defence even had he been willing and able
to pay to Nokes his principal, interest and costs — for in the
eye of a Court of Law the time for paj-ment had passed.
True a Court of Equity would have prohibited Nokes by
injunction from going on with his action, if, but only if, Doe
commenced a suit to redeem the mortgage and offered to pay
all that was due. What is more, by a statute passed as early
as the reign of George 1 1 — 7 Geo. II, cap. 20 ( 1 743)^ — this mock
equity had been introduced into the procedure of the common
law courts, that in an action for ejectment by mortgagee
against mortgagor (no suit for foreclosure or redemption
being then pending), the mortgagor might bring into court the
sum due upon the mortgage, and thereupon the court was to
compel the mortgagee to make a reconve)-ance. But neither
by legal nor by equitable procedure could the mortgagee be
prevented from ejecting the mortgagor unless the latter was
ready and willing to pay what was due. And so it is now.
^ And see the Common Law Procedure Act, 1852, ss. 219 and 220.
M. E. 18
274 Lectures on Equity Lect.
\i Doe can not or will not pay what is due Nokes may, without
foreclosing, enter into possession of the mortgaged land. If
need be the Court will aid him to obtain possession of it.
Well, here we seem to have a third course open to Nokcs
the mortgagee — without foreclosing the mortgage he can
enter upon the mortgaged lands. But, owing again to the
interference of equity, this means of availing himself of his
mortgage is not nearly so pleasant as it may look at first
sight. ' The situation of a mortgagee in possession is far
from an eligible one' (Davidson)^ On the principle that a
mortgagee must make no advantage out of his mortgage
beyond the payment of principal, interest and costs, he is
bound to account upon terms of great strictness. The com-
mon decree is for an account of what he has received or what
but for his wilful default he might have received. He is
chargeable with an occupation rent in respect of property
in hand {i.e. property not let to tenants), and is liable for
voluntary waste, as in pulling down houses or opening mines.
He may charge his actual expenses, but can not stipulate for
an allowance or commission to himself for the trouble of
collecting the rents. If he recovers rents or profits in excess
of the sum due for interest, the Court will often direct an
account with half-yearly rests — that is to say, it will direct
that in taking the past accounts a balance shall be struck at
the end of each half-year, and that any sum in excess of
interest that the mortgagee shall have received during that
period shall be struck off from the principal sum. On the
whole it is not a pleasant thing to be a mortgagee in possession.
In general a mortgagee is very loath to take possession, and
only does so when he is forced into doing it. The right upon
which a mortgagee most frequently places his main reliance
is given him by a power of sale, an extra-judicial power of
sale. I say an extra-judicial power because I wish to distin-
guish this from the power of sale under the Conveyancing
Act of 1881. Under section 25 of that Act — which in this
respect superseded and enlarged the provisions of an earlier
Act of 1852 (15 and 16 Vic. c. '^6, s. 48) — the Court has now a
very wide power of ordering a sale of the mortgaged property
^ Davidson's Precedents, 4th eJition, vol. 11, part 11, p. 90.
XXI Mortgagees Rights to Sell 275
in any action for the redemption or the foreclosure of a
mortgage. That is a very useful power. Often it is to the
interest of both parties that instead of a redemption on the
one hand or a foreclosure on the other, there should be a sale,
a payment to the mortgagee of what is due to him, and a
payment of the residue of the price (if any) to the mortgagor.
Still the mortgagee does not want to go to court in order to
obtain payment of what is due to him. He wants to have a
power of sale which he can exercise without applying to the
Court.
Now I want you to observe, for this is not unimportant,
that a mortgagee with the legal estate had always in a certain
sense a power of sale. We take up the brief mortgage which
we have supposed to be given by Doe to Nokes in the year
1880. As soon as the ist of July is passed without any
payment of the debt then Nokes is, at law, the absolute owner
of the land. The proviso for reconveyance has failed to take
effect because Doe has failed to pay his debt on the appointed
day. Well of course at law — i.e. so far as a court of common
law can see — Nokes is able to sell the land and make a good
title to it. It has not been said that he can sell, but there is
no good in saying that an absolute owner can sell ; of course
he may. Nevertheless Nokes so long as the mortgage is
unforeclosed is under an equitable obligation not to sell. If
he attempts to sell, equity will stop him by injunction. Put
the case that he does sell and does convey to a purchaser, the
mortgagor will in all probability be able to get back that land
from the purchaser, to redeem it out of the purchaser's hand.
But mark these words ' in all probability.' It is not very
likely that this land will come to the hands of a bona fide
purchaser for value who has obtained the legal estate without
notice of the mortgagor's right to redeem — still this is con-
ceivable, for occasionally men are hardy enough to forge title
deeds — well in that case we shall find out that the sale and
conveyance by the mortgagee who had been given no power
of sale is not a nullity — the purchaser, perhaps a sub-purchaser,
will be able to laugh at the merely equitable rights of the
mortgagor. Indeed in no case will the sale and conveyance
be a nullity ; it will at least be a transfer of the mortgage, a
276 Lectures on Eg? tit y Lect.
transfer of such rights as the mortgagee had at law and in
equity, and it will be from the purchaser that the mortgagor
will have to redeem the land. Still of course this merely
legal power of sale, this power which is involved in the legal
estate, a power the exercise of which equity will restrain, is
not what the mortgagee wants. He wants a power of sale
exercisable in equity as well as at law, a power which he can
exercise without doing anything condemnable by a Court of
Equity.
Before Lord Cranworth's Act, 1860(23 and 24 Vic. c. 145),
if he was to have such a power, such a power had to be given
him expressly, and a great deal of ingenuity had been spent
by conveyancers in devising a thoroughly convenient power.
The statute just mentioned gave a somewhat similar power —
but it was not in all respects quite so beneficial to mortgagees
as that which was commonly in use amongst conveyancers,
and very little reliance was placed upon this statutory power.
A far more successful attempt to abbreviate mortgages was
made by the Conveyancing Act, 1881. It took the wise course
of giving to mortgagees — unless an intention to the contrary
was expressed — a somewhat more beneficial power of sale
than that which it had been usual to give them. It follows
the old forms in this respect that a really good form would begin
by declaring not that in certain events, e.g. if the interest was
in arrears for so many months, the mortgagee might sell, but
that so soon as ever the mortgage debt should become payable
the mortgagee might sell — then however it would go on to
say that this power was not to be exercisable except on the
happening of certain events — and then lastly it would absolve
the purchaser from inquiring whether those events had hap-
pened. This form had been devised in order to give the
mortgagee the utmost freedom in dealing with purchasers,
and a purchaser the utmost freedom in dealing with mortga-
gees. Thus to return to the mortgage on Blackacre which
Doe has been giving to Nokes. After the proviso for recon-
veyance we should find something of this kind — I shall
abbreviate the full form very much :
'And it is hereby agreed and declared that it shall be
lawful for the said Nokes at any time after the ist of July
XXI Form of Power of Sale 277
next without any further consent on the part of the said Doe
to sell the said premises or any part thereof Provided always
that the said Nokes shall not execute the power of sale
hereinbefore declared until default shall have been made in
the payment of some principal money or interest hereby
secured at the time appointed for payment thereof and he
shall have given a notice in writing to the said Doe to pay
off the monies due upon the security of these presents and
default shall have been made for six calendar months from
the time of such notice, or until the whole or some half-yearly
payment of interest shall have become in arrear for three
calendar months.
'Provided also that upon any sale purporting to have been
made in pursuance of the power in that behalf, the purchaser
shall not be bound to see or inquire whether either of the
cases mentioned in the last preceding clause has happened or
whether any default has been made in the payment of any
principal money or interest intended to be hereby secured at
the time appointed for payment thereof or whether any money
remains due upon the security of these presents or otherwise
as to the propriety or regularity of any such sale and notwith-
standing any impropriety or irregularity whatsoever in any
such sale the same shall so far as regards the safety and
protection of the purchaser be deemed to be within the afore-
said power in that behalf and be valid and effectual accordingly,
and the remedy of the mortgagor in respect of any breach of
the last preceding clause or provision or of any impropriety
or irregularity in any such sale shall be in damages only.'
Thus you see the person who purchases from the mortgagee
who is professedly exercising a power of sale given in this
form is absolved from making inquiry as to whether a proper
case has arisen for the exercise of the power. Suppose e.g.
that the mortgagee sells when no interest is in arrear, still
the purchaser will be safe against the mortgagor, and the
mortgagor's only remedy will be an action for damages
against the mortgagee, founded on his wrongful use of the
power.
Then after this in the old mortgage — I mean the mortgage
as drawn before the Act of 1881 — came a clause declaring
278 Lectures on Equity Lect.
what was to be done with the money arising from any sale
under the power. The mortgagee shall in the first place
reimburse himself and pay or discharge all the costs and
expenses incurred in or about the sale, and in the second
place apply the monies in or towards satisfaction of the
mortgage debt and then pay the surplus if any to the
mortgagor, his heirs or assigns.
You will understand that a sale under the power of sale
put a complete end to the right to redeem — the equity of
redemption was extinguished — the purchaser became owner
at law and in equity and the mortgagor if he had a right to
anything, had a right only to be paid by the mortgagee any
surplus that there might be when the amount due upon the
mortgage for principal, interest and costs had been deducted
from the price paid by the purchaser^
Now the Conveyancing Act has given to every mortgagee,
where the mortgage is made by deed, a power of sale which
closely follows that given by the forms in use among con-
veyancers. The mortgagee so soon as the debt has become
due may sell ; but he is not to exercise this power unless
(a) notice has been given to pay off the debt and default has
been made in so doing for three months after the notice, or
(b) some interest is in arrear for two months, or (c) there has
been a breach of some provision contained in the mortgage
deed on the part of the mortgagor other than a covenant
for the payment of money. Then however the purchaser is
protected in the usual way ; he is absolved from inquiring
whether any of these three cases has arisen. This statutory
power of sale is a little more beneficial to the mortgagee than
that which was formerly in use — it can be exercised if any
interest be in arrear for two months (three months was usual)
or if after notice to pay off the debt default in so doing is
made for three months (six months was usual).
^ The student should note that the mortgagee becomes a trustee of the residue
of the purchase money remaining in his hands after satisfying his o\xx\. claims. He
must pay the residue to the persons entitled in equity thereto. See e.g. West
London Commercial Batik v. Reliance Building Society, 29 Ch. D. 954. Till such
a residue exists he is never a trustee even in exercising his power of sale though
he is then under certain duties to the mortgagor. Kennedy v. De I'rafford, 1897,
A.C. 180.
XXI The Conveyancing Act of 1881 279
Then in the old forms came the covenants for title, and
the rule was that a mortgagor had to give absolute covenants
for title. Without any Hmitation of his liability he covenanted
that he had good right to convey, that the mortgagee after
default should quietly enjoy the land free from incumbrances,
and that the mortgagor would do all things (if any) necessary
for his further assurance. These covenants will now be im-
ported into the mortgage deed by force of the Conveyancing
Act if the mortgagor is therein said to convey * as beneficial
owner.'
I believe that now-a-days in the preparation of mortgage
deeds great reliance is placed upon this Act, and that it has
become usual to omit a power of sale and covenants for title.
However of course in each particular case the mortgagee or
his adviser should see that the powers given by the Act are
really the powers that he wants.
You will well understand that a mortgage deed may con-
tain many other clauses. But taking the simple elementary
case of a plain mortgage in fee we may say that down to 1881
it contained five parts : (i) the covenant to pay principal and
interest, (2) the conveyance, (3) the proviso for redemption or
reconveyance, (4) the power of sale with its attendant clauses,
(5) the covenants for title. In general the Conveyancing Act
will enable you to omit the 4th and 5th parts. The Act
attempted to do somewhat more. By a different section (26)
from that to which I have been referring (19) it declared that
certain very short forms given in a schedule were to be deemed
to contain all sorts of things that they do not contain. These
are the forms of 'statutory mortgage.' I do not think that
much use has been made of them or that they are likely to
be employed save in very simple cases where very small sums
are lent and every shilling is of importance. A deed may be
too short.
The form which I have been describing was the form of
a legal mortgage in fee simple. This we may take as the
typical form of mortgage, but of course many variations were
necessary in order to adapt it to other estates, interests and
forms of property. Thus it is common to find a tenant for
life mortgaging his life estate in the settled land. But a life
28o Lecttires on Equity Lect.
estate of course is but a poor security, for it is constantly-
disappearing. Therefore if a man borrows money on a life
estate he has generally to effect a policy of insurance upon
his life and then to mortgage that policy also to the person
who advances the money. In such a case you will have three
'witnessing parts' in your deed: (i) the covenant to pay
principal and interest, (2) the conveyance of the life estate
subject to a proviso for redemption, (3) the assignment of the
policies subject to a proviso for redemption. Then leaseholds
you mortgage by way of sub-demise; this you do in order
that there may be no privity between the mortgagee and the
lessor, in order that the mortgagee may not become liable on
the covenants contained in the lease. Here by the mortgage
deed the mortgagor will demise the land to the mortgagee for
the residue of the term less the last day thereof, subject to a
proviso for redemption ; and then the mortgagor will go on to
declare that he holds the original term upon trust for the
mortgagee, but subject to the proviso for redemption.
Copyholds one mortgages by conditional surrender. A
surrender is made conditioned to be void on payment of the
mortgage debt and interest at a specified time, so that on
payment of the money at that time the mortgagor would
remain tenant as of his old estate. This condition corresponds
to the proviso for the reconveyance of freeholds. The sur-
render is accompanied by a deed which contains the usual
covenants for the payment of the mortgage debt and interest.
Personalty also can be mortgaged. Corporeal personalty,
if I may use that phrase ; physical goods and chattels one
mortgaged very much in the same way that one mortgaged
lands. One assigned them by deed to the mortgagee subject
to a proviso that they should be reassigned if the debt was
paid off on the day fixed for its payment. But you know
that mortgages of such things are bills of sale and are subject
to the provisions of certain statutes of which I am not going
to speak, since they have nothing to do with the doctrines of
equity. Then you can mortgage your share, your reversionary
share it may be, in a personal trust fund, e.g. a share which
belongs to you under your parent's marriage settlement, but
which will not be paid to you until after their deaths. So
XXI Mortgages of Personalty 281
you can mortgage a debt — you can mortgage a mortgage
debt — that is a sub-mortgage. In all these cases it is usual
to follow as closely as may be the type set by the ordinary
mortgage of land. There is the covenant to pay the debt on
a certain day with interest, then the conveyance or assignment
of whatever is to be mortgaged — then the proviso for recon-
veyance or reassignment in case the debt be duly paid on
the specified day. The ordinary equitable doctrines about
redemption and foreclosure apply to these things. Before
1881 you would have given to the mortgagee of them a power
of sale. You will now find that the sections of the Con-
veyancing Act giving the power of sale apply as well to
mortgages of personal as to mortgages of real property.
I want however to say a little more than I have yet said
about the nature of the mortgagor's rights — and let us keep
before our minds the simple and typical case of a legal
mortgage in fee simple. Doe, who is tenant in fee simple,
mortgages to Nokes. We often say that subject to the
mortgage Doe is still tenant in fee simple. But remember
what this means. So soon as the day appointed for payment
of the money has gone by, Doe's rights are purely equitable
rights — in many respects they are like the rights of a cestui
que trust — that is to say, they will not hold good against a
purchaser who gets the legal estate bona fide for value, and
without noticed Still it is true that subject to this limitation
Doe is treated as a tenant in fee simple. He has a heritable
estate, he has real estate. If by his will he devises all his real
estate to one man and bequeaths all his personalty to another
man, the former, not the latter, will take this equity of re-
demption. If he dies intestate the equity of redemption
descends to his heir; if the land be gavelkind land this equity
of redemption descends to his heirs according to the custom
of gavelkind. There could be courtesy of an equity of
redemption, and since the Dower Act of 1833 there can be
dower of an equity of redemption. Then Doe can convey
this to another, or he can settle it — create life estates and
^ And see as showing the purely equitable nature of the mortgagor's estate
Copestake v. Hoper, 1908, 2 Ch. 10.
282 Lectures on Equity Lect.
estates tail in it (nothing- is commoner than to find that a
settled estate is subject to a mortgage, to many mortgages, so
that the whole settlement is overridden by the mortgage, and
so that all the limitations in the settlement give but equitable
estates), or again he can make another mortgage; but since
he himself has only equitable rights he can only confer
equitable rights on others.
Now any person who thus becomes entitled to any interest
in the equity of redemption may redeem — thus the heir or the
devisee may redeem, the tenant by the courtesy or the doweress
may redeem, a tenant for life in the equity of redemption may
redeem, a second mortgagee may redeem, even a judgment
creditor who by issuing execution has obtained an interest in
the land may redeem^ It follows that if the mortgagee desires
to foreclose he has in general to bring before the Court every
person who has any interest in the equity of redemption, so
that each and all of them may have an opportunity of re-
deeming before they lose the land. A decree for foreclosure
is sometimes a very elaborate affair. I have before me one in
which a first mortgagee is suing a second, third, fourth, fifth
mortgagee and the mortgagor. If we compress it, it takes
this form : if second mortgagee pays on such a day let first
mortgagee reconvey to him, but in default let second mortgagee
be foreclosed, in that case give third mortgagee six months
from thence in which to pay ; if he pays let first mortgagee
reconvey to him, if not let him be foreclosed ; in that case
give a day six months thence to fourth mortgagee, and so
forth. The rule is that where there are more incumbrancers
than one, the mesne incumbrancers must successively redeem
all prior to them or be foreclosed and must be redeemed by
or will be entitled to foreclose all subsequent to them (Seton
on Decrees, 1901 edition, p. 1982).
Seeing then that there are many mortgages which are
merely equitable, which confer upon the mortgagee no legal
rights whatever in the land, we are led to examine these
equitable mortgages a little more closely. Doe, tenant in fee
^ See e.g. Tarn v. Turner, 39 Ch. D. 456, where a lessee for years under
a lease made by the mortgagor after the mortgage was held entitled to redeem.
XXI Equitable Mortgages 283
simple, has mortgaged Blackacre to Nokes, and the mortgage
is a legal one. He now goes on to mortgage it to Styles.
The mortgage deed will probably take almost precisely the
form of a first mortgage — except that probably there will be
a recital of or some reference to Nokes's first mortgage and
that the land will be conveyed to Styles expressly 'subject
to' the previous mortgage. Now at law this deed will have
but little effect. It will contain a covenant for the payment
with interest of the money lent by Styles, and the right to
sue on this covenant will of course be a legal right, Styles will
become a creditor by specialty. Here is one reason for having
a deed. But at law Doe can not convey Blackacre to Styles :
he has already conveyed it to Nokes, and Nokes's estate has
become at law an absolute estate since Doe did not pay him
his debt on the appointed day. Therefore Styles can get no
legal rights in the land, and there can be no talk of Styles
being tenant at law while Doe is tenant in equity. Neverthe-
less courts of equity construed equitable mortgages in much
the same fashion as that in which they construed legal
mortgages. Subject to the first mortgage the land is con-
veyed to Styles, but until foreclosure or sale, or even in
certain cases after foreclosure, Doe will be entitled to redeem
it from him. And so it was usual to give a second mortgagee
a power of sale closely resembling that given to a first
mortgagee. But what could the second mortgagee sell — what
could such a power enable him to sell? He could sell the
land subject to the first mortgage — he could sell the equity of
redemption. You will find that the Conveyancing Act, 1881,
enables a second or yet later mortgagee if his mortgage is
made by deed (and here is a second reason why a second
mortgage should be made by deed) to sell subject to the prior
mortgages. Indeed that Act gives a second or later mortgagee
a certain power of selling the estate free from incumbrances
if he makes a provision for the satisfaction of the incumbrances
that are prior to his own — into the details of this process I
can not go\ Now we have seen more than one reason why as
a matter of prudence a second mortgage should be made by
^ See sec. 21, sub-sees, (i) and (2),
284 Lectures on Equity Lect.
deed — still a deed is not essential to an equitable mortgage.
Of course it is essential to a legal mortgage, for a legal estate
is not to be transferred without deed. But signed writing is
all that is required for the equitable mortgage. Suppose X
lends me money and in return I write on a piece of paper
'In consideration of ;^iooo lent to me by X I agree to
execute a proper mortgage of all my freehold estates in the
County of Middlesex to secure the repayment of the said
sum with interest at 4 per cent.' This already is an equitable
mortgage, and X can go to the Court and ask for foreclosure
or sale. In form it is an agreement to give a mortgage, an
agreement which satisfies the 4th section of the Statute of
Frauds since I have signed it. It is an agreement of which
specific performance can be compelled \ That being so X is
already in equity a mortgagee. Mark the words 'in equity'
and think of the rights of a bona fide purchaser who gets the
legal estate without notice of this memorandum. That X is
already in equity a mortgagee means this, that he can go to
the court and obtain an order for foreclosure or for sale. It
would be requiring a round-about process were it necessary
for X to ask for specific performance of the agreement to grant
a mortgage, and then, the mortgage having been granted, to
ask for foreclosure. X can ask for foreclosure at once. An
opportunity will be given me to redeem, and if 1 do not pay
on the appointed day I shall be foreclosed and compelled to
convey the land to X. Such a conveyance will be necessary
if I have the legal estate — a judgment declaring me foreclosed
would not pass the legal estate from me to X ; but the Court
will compel me to convey the land to him free from all equity
of redemption. What can be done by a signed writing stating
an agreement to grant a mortgage can be done also by a
signed writing declaring that the land is charged with the re-
payment of the loan. It is best not to trust to informal papers ;
they would not give one the covenant for repayment which
may be useful, they would not give the convenient extra-
judicial power of sale — the Conveyancing Act would not
^ A mere agreement to lend on mortgage, when the money has not been
advanced, is not specifically enforceable, see supra, p. 240.
XXI Deposit of Title Deeds 285
interpolate such a power into them ; one would get no cove-
nants for title. Still an equitable mortgage can be created
by very informal writings. If you can find a written agree-
ment for a mortgage such that equity would enforce specific
performance of it, then you have already the equitable mort-
gage.
But the Court of Chancery went further than this : it
enabled people to make equitable mortgages without any
writing at all. An equitable mortgage (enforceable by an
order for foreclosure or for sale) can be made by a deposit of
title deeds if they were deposited with intent that the land
which they concern shall be security for the payment of a
debt. You may well say that this doctrine is hardly to be
reconciled with the 4th section of the Statute of Frauds. The
foundation of the equitable doctrine is an agreement, an
agreement of which the specific performance will be com-
pelled. The depositor has agreed to mortgage his land. But
then the Statute says that ' no action shall be brought upon
any contract or sale of any lands, tenements or hereditaments
or any interest in or concerning them, unless the agreement
upon which such action shall be brought or some note or
memorandum thereof shall be in writing and signed by the
party to be charged therewith or some other person by him
lawfully authorized.' Well certainly it is not very easy to
reconcile the mortgage by deposit of title deeds with the
words of this clause. Let us just notice this — that the mort-
gage by deposit is an outcome or offshoot of the equitable
doctrine of part performance. A lets B take possession of land
of which A is owner. Here according to the Court of Chancery
is cogent evidence of the existence of some agreement between
A and B. What agreement } We will allow either of the
parties to prove that it was an agreement for a sale, although
he has no note or memorandum of that agreement. And so
it is here. A has handed over the title deeds of a certain
estate to B. Why on earth should he have done this } Here
is cogent evidence of some agreement between them. Some-
thing we must do. To say that B has no charge upon the
land and yet to allow him to keep as his own, or to destroy
the title deeds of another man's property, this would be absurd.
286 Lectures on Equity Lect.
On the other hand it would be hard to force B to give back
the title deeds when it is plain that they were put into his
hand for some purpose about which there was an agreement
between him and A. So we allow B to prove, though he has
no note or memorandum in writing, what this agreement
really was, we allow him to prove that there was an agree-
ment for a mortgaged I think that we ought to regret this
doctrine of equity; it has done a good deal of harm; but
there it is. It does harm in this way — an intending purchaser
or an intending mortgagee may somewhat easily get con-
structive notice of a mortgage by deposit, and thus costs are
accumulated and titles are rendered insecure. If you are
purposing to buy land or to take a mortgage, you must be
careful to see that you get all the title deeds, otherwise you
may find yourself, even though you have the legal estate,
postponed to some banker who is holding a few deeds. If
A's deeds are in B's hands and there be no written agreement
B may prove by oral evidence that they were deposited with
him by way of security ; but if there be a written agreement
then (according to the ordinary rule) oral evidence is not
admissible to contradict that writing or vary its terms.
Equitable mortgages are not very safe things. I have
before now referred to the doctrine of tacking^ Let me once
more recall the two main rules, (a) A first mortgagee having
the legal estate makes a further advance to the mortgagor
without having notice of a second mortgage ; he may tack
his further advance to the original debt and hold the land
until he has been paid both the debts. For this reason it is
that on taking a second mortgage one should always give
notice of it to the first mortgagee, for this will prevent his
having a right to tack to his original debt any advances that
he may make after he has received that notice, (b) A third
or subsequent mortgagee who when he lent his money had no
notice of the second mortgage becomes entitled by paying off
the first mortgage and getting a conveyance of the legal estate,
to tack his own debt to the first mortgagee's so that the second
mortgagee's right will be postponed to both these debts. This
' See Russelx. Russd, i Bio. C. C. 269; 2 White and Tudor, 76, 7th edition.
2 Supra, pp. 134-138.
XXI Tacking and Consolidation 287
doctrine of tacking was abolished by the Vendor and Purchaser
Act, 1874, sec. 7, but in the next year it was restored, for that
section was repealed as from its commencement by the Land
Transfer Act of 1875.
Another danger was created by the doctrine of the con-
solidation of mortgages. The Conveyancing Act, 1881, sec. 17,
has robbed this doctrine of some but not all of its importance.
That section says that ' A mortgagor seeking to redeem any
one mortgage shall be entitled to do so, without paying any
money due under any separate mortgage made by him or any
person through whom he claims on property other than that
comprised in the mortgage which he seeks to redeem.' But
then it adds ' This section applies only if and so far as a
contrary intention is not expressed in the mortgage deeds or
one of them.' So in a mortgage one can still stipulate for the
benefit of the old doctrine, and I believe that this is not
infrequently done. So let us see what the old doctrine was
and, we may say, still is. Where distinct estates are separately
mortgaged as securities for distinct debts by the same mort-
gagor to the same mortgagee, the latter had the right to
consolidate, i.e. to hold all the estates as a security for the
aggregate of all the debts and to require that the mortgagor
should not redeem one without redeeming all. The doctrine
was useful to a mortgagee when one of the estates was
insufficient, while the other was more than sufficient to pro-
vide the sum charged upon it. He could say ' You shall not
redeem this overcharged estate unless you will pay all that
you owe me upon both the mortgages.' The rule has been
extended to cases in which the same person makes two
mortgages of different estates to two different persons, and
afterwards by assignment these two mortgages have become
vested in one person — that person can say * You must redeem
both or you can redeem neither,' However it is not probable
that this doctrine will be extended^ In a modern case the
House of Lords had to decide on these facts {Jennings v.
Jordan, 6 A p. Cas. 698)— A mortgages Blackacre to X ; then
conveys the equity of redemption in Blackacre to M ; then
i See Jr'ledgi v. White, 1896, A.C. 187.
288 Lectures 07i Equity Lect.
mortgages Whiteacre to X. M can redeem Blackacre without
redeeming Whiteacre. But it would be otherwise if both
these mortgages to X were made before the conveyance of
the equity of redemption \
Some other alterations have been made in the law of
mortgages by the Conveyancing Act which may be noticed
here as they may serve to illustrate the way in which mort-
gages have been regarded by courts of common law and
courts of equity. When land is mortgaged the creditor gets
rights of two distinct kinds — the right to be paid a debt,
certain rights in land. Let us first suppose, for this is the
simplest case for our present purpose, that what is mortgaged
is a house held by the mortgagor for a term of years — he
mortgages it either by assigning the term to the mortgagee,
or by sub-demising it for a shorter term to the mortgagee.
Either way the mortgagee becomes entitled to the chattel real
known as a term of years. He is also entitled to a chose in
action, a debt, the benefit of a covenant for the payment of
money. One sees that the two are distinct if one looks at
the transfer of a mortgage — for a mortgagee can transfer his
rights, and this without the concurrence of the mortgagor.
W'hat does he transfer? You will find that he transfers, he
assigns 'All that the sum of ;^iooo due upon a certain Inden-
ture of Mortgage and all interest due or to become due in
respect of the same.' This he assigns absolutely. Then he goes
on to assign 'AH that house et cetera, to hold to the transferee,
his executors, administrators, and assigns during the residue
of the said term ' — the term for which the transferor has been
holding them 'subject to the proviso for redemption contained
in the Indenture of Mortgage.' I said that this was the simplest
case, for in it all the rights of the mortgagee bear the character
of personalty. If he dies both the debt and the leasehold
interest in the land will go the same way ; they will go to his
executors or (as the case may be) his administrators. The
^ Note. If A had first mortgaged Blackacre to X, then Whiteacre to Y,
and then assigned for value the equity of redemption in Blackacre to Z, and
subsequently B had taken a transfer to himself of both mortgages, he, B, could not
consolidate against Z. Barter y. Coiiiian, 19 Ch. D. 630; Minter \. Carr, 1894,
3 Ch. 498.
XXI Mortgage Debt is Personatty 289
mortgagor will have only one person or only one set of persons
(two or three executors) to deal with — they can give him a
valid receipt for the debt and they also can reassign or
surrender the leasehold house to him. And so if a transfer is
to be made the executors or the administrator can do all that
has to be done and the transferee will be safe in dealing with
them — one is very safe in dealing with personal representatives
who are disposing of the personal property of the testator or
intestate. And so again they can exercise the power of sale
contained in the mortgage deed or given by statute. But it
was far otherwise when what was mortgaged was an estate
in fee simple. The mortgagee's rights were some of them
personalty, while others of them were realty. There was the
debt which passed to the personal representatives, there was
the estate which descended to the heir at law, unless it had
been given by will to some devisee. For the mortgagee like
any other tenant in fee simple, like the trustee in fee simple,
could devise the estate. The usual course was to insert in
every will a clause saying that the testator devised all freehold
estates vested in him upon trust or by way of mortgage unto
the same persons whom he appointed his executors; this kept
the estate in the same hands as the right to the money. Unless
this were done there would like enough be a difficult question
as to whether a general devise of ' all my real estates ' com-
prised estates vested in the testator by way of mortgage.
Often enough the estate would descend as undisposed of to
the heir at law. Now the Court of Chancery held that in
substantial essence the right of the mortgagee in fee simple
was personalty, a right to a sum of money. Thus for example
if he gave all his real estate to X and all his personal estate
to Y, the latter phrase and not the former would carry the
real benefit of the mortgage. The heir or the devisee would
be treated as a trustee for the personal representative, bound
to dispose of the estate in fee that had vested in him in such
manner as the personal representative should direct. Thus
the personal representative could foreclose. The power of
sale was always so drawn that it should be exercisable by
him — ' and it shall be lawful for the mortgagee, his executors.
M. E. 19
290 Lectures on Eqtitty Lect.
administrators or assigns [not his heirs] to sell.' When I say-
that the power was always so drawn, I mean that to have
given the power to the mortgagee 'and his heirs' would have
been a bad mistake, inducing confusion. But for all this in
almost every transaction concerning the mortgage the presence
and concurrence of the heir or devisee was necessary. If the
mortgagor wanted to pay off the mortgage, he had to pay the
money to the personal representatives, but he had a right to
a conveyance of the estate, and the estate was vested in the
heir or the devisee. So if the personal representatives desired
to transfer the mortgage they were obliged to obtain the
concurrence of the heir or the devisee, for otherwise there
could be no transfer of the estate, though there might be a
transfer of the debt. The transfer would have to consist of
two parts. In the first the personal representatives would
assign 'All that sum of ^1000 due upon such and such an
Indenture of Mortgage' to the transferee, his executors,
administrators and assigns. By the second the heir or devisee
would grant ' All that piece of land called Blackacre ' to
the transferee, his heirs and assigns, 'subject to the proviso
for redemption contained in the said Indenture of Mortgage.'
Then again if the personal representatives employed the power
of sale, the concurrence of the heir or devisee was necessary
in order that the estate might be conveyed to the purchaser.
The heir or devisee could in these cases be compelled to do
what the personal representatives desired him to do: he was a
trustee for them. But often enough it might be difficult to
obtain his concurrence — he might be an infant, a lunatic,
beyond the sea ; if he made any difficulties an application to
the Court was necessary. Some of these cases were dealt
with by the Trustee Act of 1850 (13 and 14 Vic. c. 60) — thus
if the mortgage estate had come to a lunatic or an infant the
Court could by what was called a Vesting order take it out of
him and vest it in some other person — still this of course
necessitated an application to the Court. Another partial
tentative step was taken by the Vendor and Purchaser Act,
1874, sec. 4. The legal personal representative of a mortgagee
of a freehold estate was enabled on payment of all the
XXI Sacramental Phrases 291
sums secured by the mortgage, to convey the mortgaged
estate. The mortgaged estate was not under this section to
pass, on the mortgagee's death, to his personal representative ;
it was to pass as of old to his heir or devisee, but in a certain
event the personal representative was to have power to convey
it. This rather clumsy device had but a limited application.
For example it was held that this section did not apply
to the transfer of a mortgage {In re Spradbery s Mortgage,
14 Ch. D. 514). But now the Conveyancing Act, 1881, sec. 30,
has repealed this section and given us a different rule. Where
an estate of inheritance is vested in any person solely upon
trust or by way of mortgage that estate shall notwithstanding
any testamentary disposition devolve to and become vested
in his personal representatives or representative from time to
time in like manner as if the same were a chattel real. There-
fore for the future it must at least be very rare for us to find
the right to the mortgage debt vested in one person while the
mortgage estate is vested in another person.
It is, I think, in connexion with this section that we ought
to read section 5 1 of the same Act. That section says that in
a deed it shall be sufficient in the limitation of an estate in fee
simple to use the words 'in fee simple' without the word heirs.
That section may have struck you as a very odd and unnecessary
one. It says that one sacramental phrase shall be as good as
another sacramental phrase — for mark that it only does this^ :
it only gives you the choice between two phrases and does
not give you liberty to invent other phrases which you may
choose to think are just as good as these — and the one phrase
is no shorter than the other. Tn fee simple' contains precisely
the same number of letters as ' and his heirs.' The explana-
tion, I take it, is to be found in the 30th section. It seems
rather silly to convey land to a man and his heirs when one
does not intend that in any event his heir shall have anything
whatever to do with the land. This is now the case when one
is conveying to a trustee or a mortgagee, and I think that it
is a little prettier in such a case to say ' in fee simple ' than to
1 The words 'in fee' are not sufficient, see In re Ethell and Mitchell and
Butler's Contract, 70 L. J. Ch. 498 ; 1901, i Ch. 945.
19 — 2
292 Lectures on Equity Lect. xxi
say 'and his heirs' — a little less misleading. But the day I
hope is coming when we shall see that two systems of intestate
succession are one system too many.
The student should remember that in this lecture Professor Maitland attempts
to give a general view of the mortgage as a legal and equitable institution.
Important points, such as the doctrines of consolidation and tacking, are only
glanced at and some startling consequences of the intervention of Equity in the
contract that the parties have made for themselves pass unnoticed. The student
should note, for instance, the maxim 'once a mortgage always a mortgage,' and
the extreme rigour lately given to the doctrine forbidding any 'clog on the equity
of redemption.' See Noakes v. Rice, 1902, A.C. 24; Carritt \. Bradley, 1903,
A.C. 253; Samuel \. Jan ah etc. Coy, 1904, A.C. 323.
LECTURES ON THE
FORMS OF ACTION
AT COMMON LAW
LECTURE P.
I PROPOSE to begin by speaking briefly of the Forms of
Action, with especial relation to those which protected the
possession and ownership of land. It may — I am well aware
of it — be objected that procedure is not a good theme for
academic discussion. Substantive law should come first —
adjective law, procedural law, afterwards. The former may
perhaps be studied in a University, the latter must be studied
in chambers. As to obsolete procedure, a knowledge of it
can be profitable to no man, least of all to a beginner. With
this opinion I can not agree. Some time ago I wished to
say a little about seisin, which still, with all our modern
improvements, is one of the central ideas of Real Property
Law ; but to say that little I found impossible if I could not
assume some knowledge of the forms of action. Let us
remember one of Maine's most striking phrases, * So great
is the ascendancy of the Law of Actions in the infancy of
Courts of Justice, that substantive law has at first the look
of being gradually secreted in the interstices of procedure-.'
Assuredly this is true of our real property law, it has been
secreted in the interstices of the forms of action. The system
of Forms of Action or the Writ System is the most important
characteristic of English medieval law, and it was not
abolished until its piecemeal destruction in the nineteenth
century^
What was a form of action ? Already owing to modern
reforms it is impossible to assume that every law student
^ A paged table of contents of these lectures is printed at the end of the
book. Edd.
^ Maine, Early Laiu and Custom, 389.
^ ^tQ post, p. 301.
296 Forms of Action Lect.
must have heard or read or discovered for himself an answer
to that question, but it is still one which must be answered if
he is to have more than a very superficial knowledge of our
law as it stands even at the present day. The forms of action
we have buried, but they still rule us from their graves. Let
us then for awhile place ourselves in Blackstone's day, or, for
this matters not, some seventy years later in 1830, and let us
look for a moment at English civil procedure.
Let it be granted that one man has been wronged by
another; the first thing that he or his advisers have to con-
sider is what form of action he shall bring. It is not enough
that in some way or another he should compel his adversary
to appear in court and should then state in the words that
naturally occur to him the facts on which he relies and the
remedy to which he thinks himself entitled. No, English law
knows a certain number of forms of action, each with its own
uncouth name, a writ of right, an assize of novel disseisin or
o{ mort d'ancestor, a writ of entry siir disseisin in \he per and
cui, a writ of besaiel, of quare impcdit, an action of covenant,
debt, detinue, replevin, trespass, assumpsit, ejectment, case.
This choice is not merely a choice between a number of queer
technical terms, it is a choice between methods of proce-
dure adapted to cases of different kinds. Let us notice some
of the many points that are implied in it.
(i) There is the competence of the court. For very
many of the ordinary civil cases each of the three courts
which have grown out of the king's court of early days, the
King's Bench, Common Pleas and Exchequer is equally
competent, though it is only by means of elaborate and
curious fictions that the King's Bench and the Exchequer
can entertain these matters, and the Common Pleas still
retains a monopoly of those actions which are known as real.
(ii) A court chosen, one must make one's adversary
appear; but what is the first step towards this end? In
some actions one ought to begin by having him summoned,
in others one can at once have him attached, he can be
compelled to find gage and pledge for his appearance. In
the assize of novel disseisin it is enough to attach his
bailiff.
I Diversity of Procedure 297
(iii) Suppose him contumacious, what can one do? Can
one have his body seized ? If he can not be found, can one
have him outlawed ? This stringent procedure has been
extending itself from one form of action to another. Again,
can one have the thing in dispute seized? This is possible
in some actions, impossible in others.
(iv) Can one obtain a judgment by default, obtain what
one wants though the adversary continues in his contumacy ?
Yes in some forms, no in others.
(v) It comes to pleading, and here each form of action
has some rules of its own. For instance the person attacked
— the tenant he is called in some cases, the defendant in
others — wishes to oppose the attacker — the demandant he
is called in some actions, the plaintiff in others — by a mere
general denial, casting upon him the burden of proving his
own case, what is he to say ? In other words, what is the
general issue appropriate to this action ? In one form it is
Nihil debet, in another Non assumpsit, in another ' Not guilty,'
in others, Nul tort, mil disseisin.
(vi) There is to be a trial ; but what mode of trial ?
Very generally of course a trial by jury. But it may be
trial by a grand or petty assize, which is not quite the same
thing as trial by jury ; or in Blackstone's day it may still
conceivably be a trial by battle. Again in some forms of
action the defendant may betake himself to the world-old
process of compurgation or wager of law. Again there are
a few issues which are tried without a jury by the judges who
hear witnesses.
(vii) Judgment goes against the defendant, what is the
appropriate form of execution ? Can one be put into pos-
session of the thing that has been in dispute? Can one
imprison the defendant .'' Can one have him made an outlaw?
or can he merely be distrained ?
(viii) Judgment goes against the defendant. It is not
enough that he should satisfy the plaintiff's just demand ; he
must also be punished for his breach of the law — such at all
events is the theory. What form shall this punishment take?
Will an amercement suffice, or shall there be fine or imprison-
ment? Here also there have been differences.
298 Forms of Action Lect.
(ix) Some actions are much more dilatory than others ;
the dilatory ones have gone out of use, but still they exist.
In these oldest forms — forms invented when as yet the parties
had to appear in person and could only appoint attorneys by
the king's special leave — the action may drag on for years,
for the parties enjoy a power of sending essoins, that is,
excuses for non-appearance. The medieval law of essoins is
vast in bulk ; time is allowed for almost every kind of excuse
for non-appearance — a short essoin de malo voiicndi, a long
essoin de malo lecti. Now-a-days all is regulated by general
rules with a wide discretion left in the Court. In the Middle
Ages discretion is entirely excluded ; all is to be fixed by iron
rules. This question of essoins has been very important —
in some forms, the oldest and solemnest, a party may betake
himself to his bed and remain there for year and day and
meanwhile the action is suspended.
These remarks may be enough to show that the differences
between the several forms of action have been of very great
practical importance — ' a form of action ' has implied a
particular original process, a particular mesne process, a
particular final process, a particular mode of pleading, of
trial, of judgment. But further to a very considerable degree
the substantive law administered in a given form of action
has grown up independently of the law administered in other
forms. Each procedural pigeon-hole contains its own rules
of substantive law, and it is with great caution that we may
argue from what is found in one to what will probably be
found in another ; each has its own precedents. It is quite
possible that a litigant will find that his case will fit some
two or three of these pigeon-holes. If that be so he will
have a choice, which will often be a choice between the old,
cumbrous, costly, on the one hand, the modern, rapid, cheap,
on the other. Or again he may make a bad choice, fail in
his action, and take such comfort as he can from the hints of
the judges that another form of action might have been more
successful. The plaintiff's choice is irrevocable ; he must
play the rules of the game that he has chosen. Lastly he
may find that, plausible as his case may seem, it just will
not fit any one of the receptacles provided by the courts
I Writs 299
and he may take to himself the lesson that where there is no
remedy there is no wrong.
The key-note of the form of action is struck by the original
writ, the writ whereby the action is begun. From of old the
rule has been that no one can bring an action in the king's
courts of common law without the king's writ ; we find this
rule in Bracton — Non potest qiiis sine brevi agere^. That
rule we may indeed say has not been abolished even in our
own day. The first step which a plaintiff has to take when
he brings an action in the High Court of Justice is to obtain
a writ. But there has been a very great change. The modern
writ is in form a command by the king addressed to the
defendant telling him no more than that within eight days he
is to appear, or rather to cause an appearance to be entered
for him, in an action at the suit of the plaintiff, and telling
him that in default of his so doing the plaintiff may proceed
in his action and obtain a judgment. Then on the back of
this writ the plaintiff, in his own or his adviser's words, states
briefly the substance of his claim — 'The plaintiff's claim is
;^iooo for money lent,' 'The plaintiff's claim is for damages
for breach of contract to employ the plaintiff as traveller/
'The plaintiff's claim is for damages for assault and false
imprisonment,' 'The plaintiff's claim is to recover a farm
called Blackacre situate in the parish of Dale in the county
of Kent.' We can no longer say that English law knows a
certain number of actions and no more, or that every action
has a writ appropriate to itself; the writ is always the same,
the number of possible endorsements is as infinite as the
number of unlawful acts and defaults which can give one
man an action against another. All this is new. Formerly
there were a certain number of writs which differed very
markedly from each other. A writ of debt was very unlike
a writ of trespass, and both were very unlike a writ of mort
d' ancestor or a writ of right. A writ of debt was addressed
to the sheriff; the sheriff is to command the defendant to
pay to the plaintiff the alleged debt, or, if he will not do so,
appear in court and answer why he has not done so. A writ
of trespass is addressed to the sheriff; he is to attach the
^ Bract, f. 413 b.
300 Forms of Action Lect.
defendant to answer the plaintiff why with force and arms
and against the king's peace he broke the plaintiff's close,
or carried off his goods, or assaulted and beat him. A writ
of mort d' ancestor bade the sheriff empanel a jury, or rather
an assize, to answer a certain question formulated in the writ.
A writ of right was directed not to the sheriff but to the
feudal lord and bade him do right in his court between the
demandant and the tenant. In each case the writ points
to a substantially different procedure.
In the reign of Henry III Bracton had said Tot eriint
fornmlae breviiun quot sunt genera actionutn^. There may be
as many forms of action as there are causes of action. This
suggests, what may seem true enough to us, that in order of
logic Right comes before Remedy. There ought to be a
remedy for every wrong ; if some new wrong be perpetrated
then a new writ may be invented to meet it. Just in Bracton's
day it may have been possible to argue in this way ; the
king's court and the king's chancery — it was in the chancery
that the writs were made — enjoyed a certain freedom which
they were to lose as our parliamentary constitution became
definitely established. A little later though the chancery
never loses a certain power of varying the old formulas to
suit new cases and this power was recognized by statute,
still it is used but very cautiously. Court and chancery are
conservative and Parliament is jealous of all that looks like
an attempt to legislate without its concurrence. The argument
from Right to Remedy is reversed and Bracton's saying is
truer if we make it run Tot crunt actiones quot stint fonnulae
breviwn — the forms of action are given, the causes of action
must be deduced therefrom.
Of course we must not for one moment imagine that
seventy years ago or in Blackstone's day litigation was really
and truly carried on in just the same manner as that in which
it was carried on in the days of Edward I. In the first place
many of the forms of action had become obsolete : they were
theoretically possible but were never used. In the second
place the words ' really and truly ' seem hardly applicable to
' Bract, f. 413 b. A whole group of these forms is ascribed to Bracton's
master, W. Raleigh — one might well have spoken ol actiones Raleighanae.
1 Abolition of the Forms of Action 301
any part of the procedure of the eighteenth century, so full was
it of fictions contrived to get modern results out of medieval
premises : writs were supposed to be issued which in fact
never were issued, proceedings were supposed to be taken
which in fact never were taken. Still these fictions had to be
maintained, otherwise the whole system would have fallen to
pieces ; any one who would give a connected and rational
account of the system was obliged — as Blackstone found him-
self obliged — to seek his starting point in a very remote
age.
We will now briefly notice the main steps by which in the
last century the forms of action were abolished. First we
must observe that there was a well-known classification of the
forms: — they were (i) real, (2) personal, (3) mixed. I shall
have to remark hereafter^ that this classification had meant
different things in different ages ; Bracton would have called
some actions personal which Blackstone would have called
real or mixed. But at present it will be sufficient if we note
Blackstone's definitions^
Real actions, which concern real property only, are such
whereby the plaintiff, here called the demandant, claims title
to have any lands, or tenements, rents, commons, or other
hereditaments in fee simple, fee tail or for term of life.
Personal actions are such whereby a man claims a debt, a
personal duty, or damages in lieu thereof; and likewise,
whereby a man claims a satisfaction in damages for some
injury done to his person or property.
Mixed actions are suits partaking of the nature of the
other two, wherein some real property is demanded, and also
personal damages for a wrong sustained.
Now in 1833 the real and mixed actions were swept away
at one fell swoop by the Real Property Limitation Act of
that year, 3 and 4 Will. IV, c. 27, sec. 36. That section sets
out the names of 60 actions and says that none of these and
no other action real or mixed — except a writ of right of
dower, a writ of dower, wide Jii/iil liabet, a quare impedit, or
an ejectment — shall be brought after 31 December, 1834.
Practically for a very long time past the action of ejectment,
1 See lecture \. post. * Bl. Coiiiin. in. 117, 118.
302 Fonus of Action Lect.
which in its origin was distinctly a personal action, had been
made to do duty for all or almost all the actions that were
now to be abolished. The quare impcdit had become the
regular action for the trial of all ciisputes about advowsons,
and, as ejectment was here inapplicable, this had to be
spared. There were special reasons for saving the two writs
of dower, since the doweress could not bring ejectment until
her dower had been set out. But they were abolished in i860
by the Common Law Procedure Act of that year (23 and
24 Vic, c. 126, sec. 26), and a new statutory action of a modern
type was provided for the doweress. By the same Act, sec.
27, the old quare impcdit was abolished and a new statutory
action was put in its place.
Meanwhile in 1832 a partial assault had been made on
the personal forms. The principal personal forms were these
— Debt, Detinue, Covenant, Account, Trespass, Case, Trover,
Assumpsit, Replevin. By 2 Will. IV, c. 39 (1832) ' Uniformity
of Process Act ' — the process in these personal actions was
reduced to uniformity. The old original writs were abolished
and a new form of writ provided. In this writ, however, the
plaintiff had to insert a mention of one of the known forms
of action. Another heavy blow was struck in 1852 by the
Common Law Procedure Act, 15 and 16 Vic, c. 76, It was
expressly provided (sec. 3) that it should not be necessary to
mention any form or cause of action in any writ of summons.
But still this blow was not heavy enough — the several
personal forms were still considered as distinct.
The final blow was struck by the Judicature Act of 1873
and the rules made thereunder, which came into force in 1875.
This did much more than finally abolish the forms of actions
known to the common law for it provided that equity and
law should be administered concurrently. Since that time we
have had what might fairly be called a Code of Civil Proce-
dure. Of course we can not here speak of the details of that
Code ; but you will not misunderstand me if I say that the
procedure which it enjoins is comparatively formless. Of
course there are rules, many rules.
We can not say that whatever be the nature of the
plaintiff's claim the action will always take the same course
I Procedttre of to-day 303
and pass through the same stages. For instance, when the
plaintiff's claim falls within one of certain classes he can
adopt a procedure^ whereby when he has sworn positively to
the truth of his claim the defendant can be shut out from
defending the action at all unless he first makes oath to some
good defence. So again there are cases in which either party
can insist that the questions of fact, if any, shall be tried by
jury ; there are other cases in which there will be no trial by
jury. Again, I must not allow you to think that a lawyer
can not do his client a great deal of harm by advising a bad
or inappropriate course of procedure, though it is true that
he can not bring about a total shipwreck of a good cause so
easily as he might have done some years ago. The great
change gradually brought about and consummated by the
Judicature Acts is that the whole course of procedure in an
action is not determined for good and all by the first step, by
the original writ. It can no longer be said, as it might have
been said in 1830 that we have about 72 forms of action, or
as it might have been said in 1S74 that we have about 12
forms of action. This is a different thing from saying that
our English law no longer attempts to classify causes of
action, on the contrary a rational, modern classification of
causes of action is what we are gradually obtaining — but the
forms of action belong to the past.
Since the Judicature Acts there are, of course, differences
of procedure arising out of the character of the various actions,
whether for divorce, probate of a will, specific performance of
a contract : such differences there must be, but they can now
be regarded as mere variations of one general theme — pro-
cedure in an action in the High Court of Justice. It was
entirely otherwise in the Middle Ages, then lawyers say very
little of the procedure in an action, very much of the pro-
cedure in some action of a particular kind, e.g. an assize of
inort d' ancestor or an action of trespass. Knowledge of the
procedure in the various forms of action is the core of English
medieval jurisprudence. The Year Books are largely occu-
pied by this. Glanvill plunges at once into the procedure in
1 Commonly called (from the Order which authorises this procedure) ' Going
under Order XIV.'
304 Forms of Action Lect.
a writ of ri_G;ht. Bracton, with the Institutes scheme before
him, gives about lOO folios to Persons and Things and about
350 to the law of Actions.
We can now attempt to draw some meagre outline of the
general history of these forms of action, remembering however
that a full history of them would be a full history of English
private law.
Now I think that our first step should be to guard our-
selves against the notion that from the very beginning it was
the office of the king's own court or courts to provide a
remedy for every wTong. This is a notion which we may but
too easily adopt. In the first place it seems natural to us
moderns, especially to us Englishmen, that in every decently
governed country there should be some one tribunal, or some
one definitely organized hierarchy of tribunals, fully compe-
tent to administer the whole law, to do right to every man in
every case. In the second place it is true that in England
such a scheme of centralized justice has existed from what,
having regard to other countries, we may call a very remote
time ; it has existed for some five hundred years. Ever since
Edward I's time, to name a date which is certainly not too
recent, the law of England has to a very large extent been
the law administered by the king's own courts, and to be
without remedy in those courts has commonly been to be
without any remedy at all. A moment's reflection will indeed
remind us that we must use some such qualifying words as
* to a very large extent ' when we lay down these wide
propositions. Think for one moment of the copyholder, or
of his predecessor the tenant in villeinage ; he was not pro-
tected in his holding by the king's court, still to regard him
as without rights would be a perversion of history. And then
think of the ecclesiastical courts with their wide jurisdiction
over matrimonial and testamentary causes ; at least until the
Reformation they were not in any sense the king's courts ;
their power was regarded as a spiritual power quite inde-
pendent of the temporal power of the state. But in the third
place we may be led into error by good masters. So long as
the forms of action were still in use, it was difficult to tell the
truth about their history. Thei'e they were, and it was the
I Erroneous Theories 305
duty of judges and text writers to make the best of them, to
treat them as though they formed a rational scheme provided
all of a piece by some all-wise legislator. It was natural that
lawyers should slip into the opinion that such had really been
the case, to suppose, or to speak as though they supposed,
that some great king (it matters not whether we call him
Edward I or Edward the Confessor, Alfred or Arthur) had
said to his wise men ' Go to now ! a well ordered state
should have a central tribunal, let us then with prudent fore-
thought analyze all possible rights and provide a remedy for
every imaginable wrong.' It was difficult to discover, difficult
to tell, the truth, difficult to say that these forms of action
belonged to ver}- different ages, expressed very different and
sometimes discordant theories of law, had been twisted and
tortured to inappropriate uses, were the monuments of long
forgotten political struggles ; above all it was difficult to say
of them that they had their origin and their explanation in a
time when the king's court was but one among many courts.
But now, when the forms of action are gone, when we are no
longer under any temptation to make them more rational
than they were, the truth might be discovered and be told,
and one part of the truth is assuredly this that throughout
the early history of the forms of action there is an element of
struggle, of struggle for jurisdiction. In order to understand
them we must not presuppose a centralized system of justice,
an omni-competent royal or national tribunal , rather we
must think that the forms of action, the original writs, are the
means whereby justice is becoming centralized, whereby the
king's court is drawing away business from other courts^
^ As an example of the theory against which it is necessary to protest see
Blackstone's account of Alfred's exploits, Conuii. iv. 411; 'To him we owe that
masterpiece of judicial polity, the subdivision of England into tithings and
hundreds, if not into counties; all under the influence and administration of one
supreme magistrate, the king ; in whom as in a general reservoir, all the executive
authority of the law was lodged, and from whom justice was dispersed to every
part of the nation by distinct, yet communicating ducts and channels ; which wise
mstitution has been preserved for near a thousand years unchanged from Alfred's
to the present time.'
M. E.
LECTURE II.
At the beginning of the twelfth century England was
covered by an intricate net-work of local courts. In the first
place there were the ancient courts of the shires and the
hundreds, courts older than feudalism, some of them older
than the English kingdom. Many of the hundred courts had
fallen into private hands, had become the property of great
men or great religious houses, and constant watchfulness was
required on the king's part to prevent the sheriffs, the presi-
dents of the county courts, from converting their official duties
into patrimonial rights. Then again there were the feudal
courts ; the principle was establishing itself that tenure
implied jurisdiction, that every lord who had tenants enough
to form a court might hold a court of and for his tenants.
Above all these rose the king's own court. It was destined to
increase, while all the other courts were destined to decrease ;
but we must not yet think of it as a court of first instance for
all litigants ; rather it, like every other court, had its limited
sphere of jurisdiction. Happily the bounds of that sphere
were never very precisely formulated ; it could grow and it
grew. The cases which indisputably fell within it we may
arrange under three heads. In the first place there were the
pleas of the crown {placita coronae), matters which in one way
or another especially affected the king, his crown and dignity.
All infringements of the king's own proprietary rights fell
under this head, and the king was a great proprietor. But in
addition to this almost all criminal justice was gradually
being claimed for the king ; such justice was a profitable
source of revenue, of forfeitures, fines and amercements. The
Lect. II The Kings Peace 307
most potent of the ideas which operated for this result was
the idea of the king's peace. Gradually this peace — which at
one time was conceived as existing only at certain times, in
certain places, and in favour of certain privileged persons,
covering the king's coronation days, the king's highways, the
king's servants and those to whom he had granted it by his
hand or his seal — was extended to cover all times, the whole
realm, all men. Then again when Henry II introduced the
new procedure against criminals by way of presentment or
indictment — placed this method of public or communal
accusation by the side of the old private accusation or appeal —
he very carefully kept this new procedure in the hands of his
justices and his sheriffs. Subsequent changes diminished
even the power of the sheriffs, and before the twelfth century
was out all that could be called very serious criminal justice
had become the king's, to be exercised only by his justices or
by a few very highly privileged lords to whom it had been
expressly granted. With the history of criminal law we have
here no great concern ; only let us notice that it is in this
field that the centralizing process goes on most rapidly and
that the idea of the king's peace is by no means exhausted
when all grave crimes are conceived as committed against the
peace of our lord the king ; the same idea will in course of
time bring within the cognizance of the royal court every, the
slightest, wrongful application of physical force.
Secondly, even had feudal theory and feudal practice gone
unchecked, the king, as the ultimate lord of all lords, would
have been able to claim for his own court a certain supervisory
power over all lower courts. If a man could not get justice
out of his immediate lord he might go to that lord's lord, and
so in the last resort to the king. We must not here introduce
the notion of an ' appeal ' from court to court, for that is
a modern notion. In old times he who goes from court to
court does not go there merely to get a mistake put right, to
get an erroneous judgment reversed ; he goes there to lodge
a complaint against his lord or the judges of his lord's court,
to accuse his lord of having made default in justice (propter
defectum justiciae), to accuse the judges of having pronounced
a false judgment ; he challenges his judges and they may have
3o8 Forms of Action Lect.
to defend their judgment by their oaths or by their bodies.
Still the king has here an acknowledged claim to be the
supreme judge over all judges, and this claim can be pressed
and extended, for if it profits the king it profits the great mass
of the people also.
Thirdly, even the extremest theory of feudalism would
have to allow the king to do justice between his own tenants
in chief; however little more a king may be he is at the very
least a feudal lord with tenants, and may hold, and ought to
hold, a court of them and for them.
Had the worst come to the worst the king might have
claimed these things, jurisdiction over his own immediate
tenants, jurisdiction when all lower lords have made default,
a few specially royal pleas known as pleas of the crown. To
this he might have been reduced by feudalism. We ought not
indeed to think that in England his justice was ever strictly
pent within these limits ; the kingship established by conquest
was too strong for that, still he could not exceed these limits
without a struggle. That his court should fling open its doors
to all litigants, should hold itself out to be a court for all cases
great and small, for all men, whosesoever men they be, is
a principle that only slowly gains ground. Despite all that
was done by Henry H, despite the ebb of feudalism, we can
hardly say that this principle is admitted before the corona-
tion of Edward I. In the middle of the thirteenth century,.
Bracton, a royal judge, whose work constantly displays strong
anti-feudal leanings, who has no mean idea of his master's
power, who holds the theory that all justice is in the last
resort the king's, that it is merely lack of time and strength
that prevents the king from hearing every cause in person, is
none the less forced to make something very like an apology
for the activity of the king's court — one class of cases must
come before it for one reason, another for another, but some
reason, some excuse there must be ; it can not yet be assumed
as an obvious rule that every one whose rights have been
infringed can bring his case before the king's justices.
A little must be said about the constitution and the
procedure of these communal and feudal courts. In the courts
of the shire and the hundred the judgments were made by the.
II Jndgineut preceded Proof 309
suitors of the court, those freeholders who were bound to
attend its periodic sittings. The court was presided over by
the sheriff, or if the hundred was one that had fallen into
private hands, by the lord's steward ; but the jud;^ments were
made by the suitors; they were the Jndicatores of the court;
it is not improbable that in English they were called the
dooms-men of the court. So in the feudal courts, the lord's
steward presided, but the tenants who owed suit of court were
the dooms-men. It was for them to make the judgments, and
it is probable that if they differed in opinion the judgment of
the majority prevailed. But this judgment was not like
a modern judgment. In modern German books dealing with
ancient procedure we find the startling proposition that judg-
ment preceded proof; it was a judgment that one party or the
other to the litigation was to prove his case. Now when in
our own day we speak of proof we think of an attempt made
by each litigant to convince the judge, or the jurors, of the
truth of the facts that he has alleged ; he who is successful in
this competition has proved his case. But in old times proof
was not an attempt to convince the judges ; it was an appeal
to the supernatural, and very commonly a unilateral act. The
common modes of proof are oaths and ordeals. It is adjudged,
for example, in an action for debt that the defendant do prove
his assertion that he owes nothing by his own oath and the
oaths of a certain number of compurgators, or oath-helpers.
The defendant must then solemnly swear that he owes nothing,
and his oath-helpers must swear that his oath is clean and
unperjured. If they safely get through this ceremony, punc-
tually repeating the right formula, there is an end of the case ;
the plaintiff, if he is hardy enough to go on, can only do so by
bringing a new charge, a criminal charge of perjury against
them. They have not come there to convince the court, they
have not come there to be examined and cross-examined like
modern witnesses, they have come there to bring upon them-
selves the wrath of God if what they say be not true. This
process is known in England as ' making one's law ' ; a litigant
who is adjudged to prove his case in this way is said to ' wage
his law' ivadiare legem), when he finds security that on
a future day he will bring compurgators and perform this
3IO Forms of Action Lect.
solemnity ; then when on the appointed day he comes and
performs that ceremony with success, he is said to ' make his
law ' {faccre legem). An ordeal is still more obviously an
appeal to the supernatural ; the judgment of God is given ;
the burning iron spares the innocent, the water rejects the
guilty. Or again the court adjudges that there must be trial
by battle ; the appellor charges the appellee with a crime, the
appellee gives him the lie ; the demandant's champion swears
that he saw the demandant seised of the land, and is ready to
prove this by his body ; the wit of man is at fault in presence
of a flat contradiction ; God will show the truth. It is hard
for us to say how this ancient procedure worked in practice,
hard to tell how easy it was to get oath-helpers who would
swear falsely, hard to tell how much risk there was in an
ordeal. The rational element of law must, it would seem,
have asserted itself in the judgment which decided how and
by whom the proof should be given ; the jurisprudence of the
old courts must have been largely composed of the answers to
this question ; and some parts of it are being recovered, for
example we can see that even before the Norman Conquest
the man who has been often accused has to go to the ordeal
instead of being allowed to purge himself with oath-helpers.
But the point now to be seized is that the history of the forms
of action presupposes this background of ancient courts with
their unprofessional judges, their formal, supernatural modes
of proof.
In its constitution and in its procedure the king's court is
ahead of the other courts. Theoretically, from the Conquest
onwards, it may be a feudal court, one in which all the king's
tenants in chief, or such at least of them as are deemed barons,
are entitled and bound to sit under the presidency of the king,
his high steward or his chief justiciar. To this day the king's
highest court of all is the assembly of the lords spiritual and
temporal. But practically a small knot of trained adminis-
trators, prelates and barons, becomes the king's court for
ordinary judicial purposes. The reforms of Henry II, the
new actions invented in his reign, brought an ever increasing
mass of litigation before the royal court. It became more
and more a group of men professionally learned in the law.
11 Archaic Procedure
311
Gradually, as is well known, this group breaks up into three
courts, there are the three courts of common law, the King's
Bench, Common Bench, and Exchequer. This process is not
complete until Edward I's reign ; but we may say that for
a century before this the king's court for ordinary judicial
purposes has been no feudal court of tenants in chief, but
a court of professional justices; the justices of Henry Ill's
time are often men who have had a long education in the
subordinate offices of the court and the chancery.
As to procedure, all the old formal modes of proof have
been known in the king's court. It made use of the ordeal
until that ancient process was abolished by the Lateran
Council of 12 1 5. Trial by battle, as we all know, was not
abolished until 1819^ and wager of law was not abolished
until 1833I For a very long time before this any practical
talk of these barbarisms had been very rare, and for a still
longer time pent within ever narrowing limits ; still, if we are
to understand the history of the forms of action, we must be
mindful of these things ; a long chapter in that history might
be entitled ' Dodges to evade Wager of Battle,' a still longer
chapter, * Dodges to evade Wager of Law.' We must not
suppose that the unreasonableness of these archaic institutions
was suddenly perceived ; the cruelties of the peine forte et dure
had their origin in the sentiment that trial by jury is not
a fair mode of trial save for those who have voluntarily
consented to it ; the remembrance of the ordeal was dear to
the people ; they would ' swim a witch ' long centuries after
the Lateran Council ; so late as 1376 we find that wager of
law is still popular with the commons of England, they pray
that there may be wager of law in the Exchequer as in the
other courts^. But to a very great extent the early history of
the forms of action is the history of a new procedure gradual 1}-
introduced, the procedure which in course of time becomes
trial by jury. It would be needless to repeat here what has
been sufficiently said elsewhere about the first germs of the
jury. The Prankish kings, perhaps assuming to themselves
the rights of the Roman fiscus, had placed themselves outside
1 59 Geo. Ill, c. 46. ^ 3 and 4 Will. IV, c 42, sec. 13.
*• Rot. Pari. in. 337.
312 Forms of Actioji Lect.
the ancient formal procedure of the popular courts, had sought
to preserve and enforce their royal rights by compelling the
inhabitants of the district, or a representative body of such
inhabitants, to swear that they would tell the truth as to the
nature and extent of these rights. Further, they gave or sold
this privilege to specially favoured persons, especially to the
churches which were under their patronage. The favoured
person, if possessions were attacked, need not defend them by
battle, or ordeal, or any of the ancient modes of proof, but
might have an inquest of neighbours sworn to tell the truth
about the matter in hand. Immediately after the Norman
Conquest we find that this procedure has been introduced into
England, and it is employed on a magnificent scale. Domes-
day Book is the record of the verdicts of bodies of neighbours
sworn to tell the truth, and its main object is the ascertainment
and preservation of the king's rights. Very soon after this we
find the inquest or jury employed in the course of litigation ;
for instance, in a suit touching the rights of the Church of Ely
the Conqueror commands that those who best know how the
lands lay in the days of the Confessor shall be sworn to tell
the truth about them ; so a number of the good folk of
Sandwich are sworn to tell the truth about a certain ship, and
they testifying in favour of the Abbot of St Augustine's, the
Abbot is ' reseised ' of the ship. The right to a jury makes
its appearance as a royal prerogative, a prerogative, the
benefit of which the king can give or sell to those who obtain
his grace. We see traces of this origin even at a very late
time ; it is an established maxim that one can not wage one's
law against the king. In an action for debt upon simple
contract, were the plaintiff a subject, the defendant would be
allowed to purge himself with oath-helpers in the ancient way,
but when the king is plaintiff he must submit to trial by jury.
In the competition of courts, therefore, the king's court has
a marked advantage ; to say nothing of its power to enforce
its judgments it has, for those who can purchase or otherwise
obtain such a favour, a comparatively rational procedure. As
yet, indeed, trial by jury is far from being what it became in
later tim.es; the jurors are not 'judges of fact,' they are
witnesses ; but they are not like the witnesses and the com-
II Juries are Neighbour-Witnesses 313
purgators of the old procedure ; they are not brought in by
the party to swear up to a set form of words in support of his
case, they are summoned as impartial persons by a royal
officer, and they swear to tell the truth, whatever the truth
may be. This is the procedure, far more rational than battle,
or ordeal, or wager of law, which the king's court has at its
command when it begins to bid against the communal and
feudal courts. If for a moment we may refer to Roman law,
we may say that the history of English law does not begin
with the formulary system — that is the product of the twelfth
and thirteenth centuries — at the back of the formulary system
are Icfris actiones
LECTURE III.
This morning I shall attempt a sketch in brief outline of
the order in which the different forms of action are developed.
But first I ought to say that I do not know that any such
attempt has yet been made, and that, as I must be very brief,
I shall be compelled perhaps to state in too dogmatic a
fashion some conclusions that are disputable. To this I
must add that some things that I say this morning may seem
unintelligible. I hope to make my meaning clearer in sub-
sequent lectures. We must break up our histor}^ into periods.
I. 1066 — II 54. The first of these periods would end
with the great reforms of Henry II. Litigation of an ordinary
kind still takes place chiefly in the communal and feudal
courts ; even the king's court may be considered as a feudal
court, a court of and for the king's tenants in chief, though
a professional element is apparent in it since the king keeps
around him a group of trained administrators. His court is
concerned chiefly with (i) the pleas of the crown, i.e. cases
in which royal rights are concerned, (2) litigation between the
king's tenants in chief — for such tenants it is the proper
feudal court, (3) complaints of default of justice in lower
courts. From time to time he interferes with ordinary litiga-
tion; at the instance of a litigant he issues a writ commanding
a feudal lord or a sheriff" to do justice, or he sends out some
of his officers to hear the case in the local courts, or again he
evokes the case before his own court. Such interferences can
not be secured for nothing; they may be considered as
luxuries, and men may be expected to pay for them ; the
litigant does not exactly buy the king's justice, but he buys
the king's aid, and the king has valuable commodities for sale;
Lect. Ill The J/Vork of Henry II 315
the justice that he does is more peremptory than the justice
that can be had elsewhere, and the process of empanelHng a
body of neighbour-witnesses, the process which in course of
time will become trial by jury, is a royal monopoly. The
writs of this period, so far as we can judge from the specimens
that have been preserved, were penned to meet the particular
circumstances of the particular cases without any studious
respect for precedent. We do indeed come upon writs which
seem as it were to foretell the fixed formulas of a later age ;
we are sometimes inclined to say 'This is a writ of right, that
a writ of debt, that a writ of trespass ' ; but we have little
reason to suppose that the work of issuing writs had as yet
become a matter of routine entrusted to subordinate officers
whose duty was to copy from models. Perhaps no writ went
out without the approval of the king himself or the express
direction of his justiciar or chancellor ; and probably every
writ was a purchaseable favour.
II. 1 154 — 1 189. The legislative activity of Henry IPs
reign marks a second period. Under Henry II the exceptional
becomes normal. He places royal justice at the disposal of
anyone who can bring his case within a certain formula.
From the end of his reign we have Glanvill's book, and
we see already a considerable apparatus of writs which are
at the disposal of litigants or of such litigants as will pay
for them ; they have assumed distinct forms, forms which
they will preserve until the nineteenth century, and probably
the issue of them is fast becoming a matter of routine ; each
writ is the beginning of a particular form of action. Let us
look at some of these writs.
First the Writ of Right. There is good reason to believe
that Henry, in some ordinance lost to us, laid down the broad
principle that no man need answer for his freehold without
royal writ. Every one therefore who demands freehold land
must obtain a writ ; otherwise his adversary will not be bound
to answer him. This principle of vast importance is laid
down clearly enough in the book ascribed to Glanvill, On
the other hand it seems to be a new principle ; we have little
cause to believe that it was in force before Henry's day or
that it ever was law in Normandy; more than once we find it
o
1 6 Forms of Action Lect.
connected with another rule which we also ascribe to Henry,
a rule of which much must be said hereafter, namely, that
no one is to be disseised of his freehold unjustly and without
judgment, that every one so disseised has an action (called an
Assize of Novel Disseisin) before the king's own justices. In
1207 King John sent a writ to the people of Ireland in which
he coupled these two rules: 'we will that none shall disseise
you of your free tenements unjustly and without a judgment,
and that you shall not be impleaded for your free tenements
without our writ or that of our justiciar'.' We find Bracton
again coupling these two principles : no one shall be dis-
seised of his free tenement without a judgment, nor need he
answer for it without the king's command and writ'l Of these
two principles the one is that of the great possessory action,
the Assize of Novel Disseisin, the other is of wider import, no
action for freehold can be begun without the king's writ, or
if it be so begun the person who is in possession need not
answer. But let us observe that there is a close connexion
between the two : both can be represented as measures for
the protection of possession, of seisin of free tenement ; such
possession is to be protected against extrajudicial force; but
this is not enough, it is to be protected also against irre-
sponsible justice ; he who is seised shall remain seised until
some judgment is given against him in accordance with the
king's writ. Henry did not ordain, could not have ordained,
that all litigation respecting free tenements should take place
in the king's court; such a measure would have been too open
an abrogation of the first principle of feudalism. It seems
very possible that he was able to represent the great step that
he took as no interference with proprietary rights but a mere
protection of possession, while the protection of possession
was intimately associated with the maintenance of the king's
peace which was now conceived as surrounding all men.
At any rate this principle took firm root in English law:
no one need answer for his freehold without the king's writ.
This does not mean that every action for freehold must be
i Rot. Pat. 76; Select Pleas in Manorial Courts, I Liv.
- Bract, f. i6i : 'Nemo debet sine judicio disseisiri de libero tenemento suo,
nee respondeie sine praecepto domini Regis nee sine brevi.'
Ill JVrits of Right 317
begun in the king's court; far from it. Suppose that A claims
land that B holds, and that it is common ground between
them that the land ought to be held of C ; then undoubtedly
C's court is the proper tribunal. But B need not answer
unless A obtains a writ. The writ which A will obtain if he
is asserting title to the land will be a writ addressed by the
king to C in this form : ' I command you that without delay
you hold full right to A {i.e. do full justice to A) concerning
a virgate of land in Middleton which he claims to hold of you
by such and such a free service, and unless you do it my
sheriff of Northamptonshire shall do it, that I may hear no
further complaint about this matter for default of justice.'
Such a writ is called a writ of right {breve de recto tenendo),
and because it is an open writ and not sealed up, as some
writs are, it is a writ of right patent {breve de recto patensj-.
If however the demandant claims to hold the land of the king
as tenant in chief such a writ is out of place ; there is no
mesne lord to whom it can be directed ; the proper tribunal
is the king's own court. So the writ takes a different form\
It is directed to the sheriff: 'Command B that justly and
without delay he render to A a hide of land in Middleton,
whereof A complains that B unjustly deforces him, and if he
will not do it, summon him that he be before my justices at
such a place and time to answer why he has not done it ' ;
the tenant of the land must give it up to the demandant or
answer in the king's court. In saying "that this simple writ,
this Praecipe quod reddat, was only used when the demandant
claimed to hold of the king as tenant in chief, we have been
guilty of some inaccuracy. Glanvill tells us that such a writ
is issued when the king pleases; Henry II was not very
careful of the interests of mesne lords and would send a
Praecipe quod reddat to the sheriff when a Writ of Right
addressed to the lord would have been more in harmony with
feudal principles. But this was regarded as a tyrannical abuse
and was struck at by a clause of the Great Charter- — the
1 The Writ of Right Patent and the Praecipe qi<od reddat are printed among
the Select Writs after these lectures.
- Magna Carta (1215), c. 34: Breve quod vocatur Praecipe non fiat alicui de
aliquo teneniento unde liber homo amittere possit curiam suam.
3i8 Foyjjis of Action Lect.
writ called Praecipe shall not be issued for the future so as to
deprive any free man of his court ; a proprietary action for
land must be begun in the lord's court ; the Praecipe quod
reddat is only in place when the demandant claims to hold in
chief of the king, in other words when it is a Praecipe in capite.
We have therefore to distinguish between two forms of the
proprietary action for land, that begun in the lord's court by
Writ of Right, that begun in the king's court by Praecipe in
capite; but in course of time the term 'Writ of Right' gains
a somewhat extended sense and is used so as to include the
Praecipe in capite. This is due to the contrast between
possession and property, or, to use the terms then current,
between ' seisin ' and ' right.' The Praecipe in capite is the
beginning of a proprietary action, one in which the demandant
relies on right, not merely on seisin, and so it may be called
a writ of right.
Now the action commenced by Writ of Right was an
extremely slow and solemn affair — so at least it was con-
sidered in after ages when it could be compared with more
rapid actions. It involved a great number of delays {dila-
ciojics), of adjournments from term to term. Among the
causes which in course of timiC have rendered justice more
rapid we must reckon not merely good roads, organized
postal service, railways, electric telegraphs, but also the
principle that men can hand over their litigation and their
other business to be done for them by agents, whose acts
will be their acts. Rapid justice may now-a-days be fair
justice, because if a litigant can not be present in court in
his own person, he may well be there by his attorney and
his counsel. But this principle that every suitor may appear
in court by attorney is one that has grown up by slow degrees,
and, like so many other principles which may seem to us
principles of 'natural justice,' it first appears as a royal pre-
rogative; the king can empower a man to appoint an attorney \
^ Fitz. iVat. Brev. 25 : Bl. Counii. in, 25. Blackstone adds 'This is still the
law in criminal cases, and an idiot cannot to this day appear by attorney, but in
person, for he hath not discretion to enable him to appoint a proper substitute :
and upon his being brought before the court in so defenceless a condition, the
judges are bound to take care of his interests, and they shall admit the best plea
in his behalf that anyone present can suggest.'
Ill Essoins 319
But so long as litigants have to appear in person justice must
often be slow if it is to be just ; the sick man can not come,
so one must wait until he is well ; one must give the crusader
a chance of returning. But one can not wait for ever ; that
would be unfair to the other party ; so a great deal of law is
evolved as to the excuses for non-appearance, in technical
language the essoins, that a man may proffer. This is one
of the causes which raise high the barriers between the
various forms of action. In the action begun by Writ of
Right, which will finally deprive one of the parties of all
claim to the land, the essoins are manifold ; a litigant can
generally delay the action for year and day by betaking him-
self to his bed^ ; in other actions so many essoins are not
admissible.
It is worthy of notice that the Praecipe for land, the Writ
of Debt, and many other writs afterwards invented, are not in
the first instance writs instituting litigation ; that, according
to their tenor, is not their primary object. The king through
his sheriff commands a man to do something, bids him give
up the land that he wrongfully withholds, or pay the debt
that he owes. Only in case of neglecting to obey this com-
mand is there to be any litigation. May we not say then that
the ' cause of action ' in the king's court is in theory not the
mere wrong done to the plaintiff or demandant by keeping
him out of his land or neglecting to pay money due to him,
but this wrong coupled with disobedience to the king's com-
mand ? There can I think be little doubt that such a concep-
tion was operative in the growth of royal jurisdiction. If we
look back at the Leges Henrici we find that among the rights
which the king has over all men, among the pleas of the
crown, stands the placituin brevium vel praeceptorwn ejus
contemptorum, any action we may say founded on a contempt
of his writs or commands 2. The wrong done to the plaintiff or
' Some care was taken to see that his excuse was not too unreal. Four
knights were sent to visit him, to award whether he had 'malum transiens' or a
* languor ' — which was what he needed — after consideration of whether they found
him ' vagantem per rura ' or ' in bed as befits a man making such excuse, un-
booted, unbreeched and ungirt, or even naked which is more' (decalceatum, et
sine braccis et decinctum, vel forte nudum, quod plus est). Bracton, f. 356 b.
^ Leg. Hen. Prim. c. 10.
o
20 Forms of Action Lect.
demandant is a breach of law and a wrong which should be
redressed somewhere ; but it is the contempt of the king's
writ which makes it a wrong which should be redressed in
the king's court ; in the language of the old English laws
there has been an ' overseeness ' or ' overhearness ' of the king
which must be emended ; the deforciant of land or of a debt
has not merely to give up the land or pay the debt, he is at
the mercy of our lord the king and is amerced accordingly.
The mode of trial appropriate to the Writ of Right
has been trial by battle. We may reckon as the second of
Henry's reforms in civil procedure that he gave to the tenant
the option of another mode of trial ; instead of the judicial
combat he might put himself upon the grand assize of our
lord the king. The text of this ordinance, this grand assize
{magna assisa) we have not got. Glanvill's account of it
is well known — ' The grand assize is a royal boon conceded
to the people by the clemency of the prince on the advice of
his nobles whereby wholesome provision is made for the lives
of men and the integrity of the state, so that in defending the
right which every one possesses in his free tenement they may
refuse the doubtful issue of battle..,. This institution proceeds
from the highest equity; for the right which after many and
long dela}'s can hardly be said to be proved by battle is
more rapidly and more fitly demonstrated by this beneficent
ordinance^' If the tenant (that is, the party attacked by the
Writ of Right) claims the benefit of this ordinance, puts
himself on the grand assize of our lord the king, the action
is removed out of the lord's court and is brought before
the king's justices ; four knights of the neighbourhood are
summoned to choose twelve other knights who are sworn to
say^ to 'recognize' {rccognoscere), whether the demandant or
the tenant has the greater right to the land. The name
' grand assize ' is transferred from the ordinance to the insti-
tution that it creates ; these twelve recognitors are ' a grand
assize.' It is best not to call them a 'jury,' for though we see
here one stage, and a very important stage, in the growth of
trial by jury, still in many respects trial by the grand assize
to the last day of its existence — and such a trial was possible
^ Glanv. II. 7; Stubbs, Const. Hist. i. 615.
Ill TJie Possessory Assizes 321
in 1834^ — remained a distinct thing from trial by jury. We
observe for instance that the recognitors were sworn to tell
the truth not about mere facts — the separation of questions
of fact from questions of law belongs to a later day — but to
tell the truth about rights, to say whether A or B has the
greater right {jus inajus). We may notice also that here
again the king is interfering in favour of possession ; it is not
either party that can claim this royal boon, it is only the
tenant, the man in possession ; no such grace is shown to
demandants, they can be compelled to stake their claims on
the issue of a combat.
Now the possessory assizes : In sharp contrast to the
action begun by Writ of Right there now stand three pos-
sessory actions, the three Assizes of Novel Disseisin, Mort
d'Ancestor, and Darrein Presentment. There can, I suppose,
be but little doubt that the notion of a definitely possessory
action may be traced to the Roman interdicts, through that
actio spolii which the canonists were gradually developing.
But the English and Norman assizes — for we find these
actions in Normandy as well as in England, and there is some
reason for thinking that they are a little older in Normandy
than in England — have many features which are distinctly
not Roman and not Canonical. Roman law and Canon law
may have afforded suggestions but hardly models. We will
look at these three assizes.
{a) The principle of the Novel Disseisin is this, that if
one person has unjustly and without a judgment disseised
another of his free tenement, and the latter, the disseisee, at
once complains of this to the king he shall be put back into
seisin by the judgment of the king's court. The procedure is
this, the plaintiff lodges his complaint, at once a writ is issued
bidding the sheriff summon twelve good and lawful men of
the neighbourhood to 'recognize' {recognoscere) before the
king's justices whether B unjustly and without a judgment
disseised A of his free tenement within the time limited for
the bringing of an assize. If this body of recognitors, this
assize — for the procedure is called an assize and the twelve
neighbours are called an assize — answers 'yes' to the question
^ 3 and 4 Will. IV, c. 27, sec. 36.
M. E. 2 1
322 Forms of Action Lect.
thus formulated in the writ, then the plaintiff, the disseisee,
will be put back into seisin.
The formula of the Novel Disseisin contains terms which
in course of time will give birth to a great deal of law ; the
successful plaintiff must have been disseised of his free tene-
ment unjustly ; but what is seisin, what is a free tenement,
when is a man disseised unjustly? Postponing any discussion
of these terms we can still notice that the action has a narrow
definite scope. It can be brought only by a disseisee against
a disseisor. It can not, for example, be brought by the heir
of the disseisee, or against the heir of the disseisor. Again,
disseisin implies more than a wrongful assumption of posses-
sion, it implies a turning of some one out of possession ; to
enter on land of which no one is seised is no disseisin ; if, for
example, on the death of a rightful tenant a stranger enters
before the heir enters, that stranger is no disseisor. This
Assize of Novel Disseisin is no remedy for the recovery of
land to which one is entitled ; to speak roughly it is an action
competent to a person who has been turned out of possession,
and competent against the person who turned him out. It
decides nothing as to proprietary right. In a Writ of Right
the demandant claims the land as his rigJit and inheritance
{lit jus et hereditatem siiavi) ; he has to allege that he or some
ancestor of his was seised as of right {tit de jure) ; no such
allegation is made by the plaintiff in the Novel Disseisin; it is
enough that he has been seised and disseised, and of right
there is no talk. Consequently this action, if the plaintiff be
successful, in no way decides that the plaintiff has better
right than the disseisor ; the plaintiff is put back into seisin,
but after all the disseisor may be the true owner ; he may at
once bring a Writ of Right against his hitherto successful
adversary; the court will help him to his own though it
has punished him for helping himself
Then again this action must be brought within a limited
term ; the complaint must be one of recent dispossession
{de nova disseisina). In England this term was fixed from
time to time by royal ordinance. When Glanvill wrote the
action had to be brought since the king's last passage to
Normandy, an event which must have been quite recent. In
Ill Mort d' Ancestor 323
Normandy we find a rule which has a curiously archaic sound;
the plaintiff must have been seised when the last harvest was
reaped. The principle of the Novel Disseisin if it has one
root in the Interdicts seems to have another in the ancient
notion, very prominent in Norman law, that the man engaged
in agricultural operations enjoys a special peace.
Then again the Novel Disseisin was a very summary
action, nt per siimviariam cog7iitionem absque magna juris
soleinnitate quasi per compendiuvi negotium terminettir'^, says
Bracton. In course of time these assizes became very by-
words for dilatoriness ; but I see no reason to doubt that in
the twelfth century their procedure was quite as rapid as was
compatible with the elementary rules of justice^. No essoin
was permitted ; no pleading was necessary ; the question for
the recognitors was formulated in the writ which summoned
them ; there could be no voucher to warranty of any one not
named in the writ ; the first process against the defendant
was not a mere summons but an attachment ; it was even
enough to attach his bailiff. When Bracton tells us that the
invention of this action had cost pains, that it was multis
vigiliis excogitata et inventa'^, we can believe him ; a splendid
success awaited it.
{b) The principle of the Assize of Mort d'Ancestor
(assisa de morte antecessoris) is this, that when a person has
died seised as of fee — ut de fcodo — his heir ought to be seised,
and that if any other person obtains seisin before the heir,
that person shall be turned out by the judgment of the court
in favour of the heir. The procedure is somewhat like that of
the Novel Disseisin, though not so summary. The questions
for the recognitors are formulated in the original writ and
are these, ' Whether M, the father, mother, brother, sister,
uncle or aunt of A, the plaintiff, was seised in his demesne as
of fee of the land in question now held by X, whether M died
within the time limited for bringing the action, and whether
A is M's next heir.' If all these questions are answered in the
plaintiff's favour then he is put in seisin.
The action is regarded as distinctly possessory in this
^ Uract. f. 164 b. * See Glanv. xui. 38.
3 Bract, f. J 64 b.
21 — 2
324 Forms of Action Lect.
sense that it decides nothing about proprietary right. It is
necessary that the plaintiff's ancestor should have been seised,
that he should have been seised ' as of fee,' that is to say, that
he should not have been seised as a mere tenant for life or the
like, that he should have been seised ' in demesne,' that is that
he should, in our modern terms, have been seised of the land
itself and not merely of a seignory over lands held of him by
another ; but it is by no means necessary that he should have
been seised as of right ; of right there is no talk at all. It
follows A may recover from X in a Mort d'Ancestor, while X
having better right than A will recover from him in a pro-
prietary action, in a Writ of Right.
Seisin, we may observe, is not conceived as a descendible
right. The heir of one who died seised is not at once in
seisin ; he must enter on the land before he will be seised. If
during the interval a stranger enters, that stranger will be no
disseisor. Had seisin been considered as a descendible right
there would have been no place for the Mort d'Ancestor, for
its sphere would have been covered by the Novel Disseisin.
On the other hand seisin (unless the person seised claims but
a temporary estate as tenant for life or the like) does found
or generate a descendible right — a person who dies seised
ought to be succeeded by his heir and by no other, and if any
other person obtains seisin, he shall be put out of it ; if he
thinks that he has better right than the heir because better
right than the ancestor, let him bring his action ; help himself
he shall not. In course of time (but this as I think belongs
to a later period) it is even said that on the death of one who
dies seised as of fee, his heir is at once 'seised in law' though
he is not 'seised in deed' until he enters; this means that
during the interval he has some, though by no means all, of
the advantages of seisin. The older notion seems to be that
tliough seisin is not descendible it does beget a descendible
right, and at any rate the Mort d'Ancestor gives us this
important principle that the heir of one who dies seised ought
to be put in seisin and remain seised until some one else
proves a better right in due course of law.
But we have mis-stated the rule implied in this assize in
a point worth mentioning. In order that the plaintiff may be
Ill Aiel, Besaiel and Cosinage 325
successful, it is essential not merely that he should be the heir
of the dead person, but that he should be the son, daughter,
brother, sister, nephew, niece of that person. The Mort
d'Ancestor lies only on the death of a father, mother, brother,
sister, uncle or aunt. The dead man's heir happens to be his
grandson ; that grandson can not bring an assize. Why so ?
We must, as I think, answer that the limitation is quite unprin-
cipled ; that legislators deal with obvious cases and leave rarer
cases unprovided for, either because they are forgotten or be-
cause they are troublesome. The remark is worth making for
there are many things in the history of our law, and, I should
suppose, in the history of every body of law, which can only
be explained by that vis inertiae which makes against legal
reforms. And let us observe what happens. The formula of
the Mort d'Ancestor is never enlarged ; but new actions are
invented to meet the omitted cases. This happened it would
seem under Henry III in or about 1237. The actions known
as actions of Aiel, Besaiel and Cosinage; if the dead man
was the grandfather (aiel), or great-grandfather (besaiel), or
cousin of the heir, that heir was to have an action which
would do for him what the Mort d'Ancestor would have done
had the degree of kinship between them been closer. But
there was difficulty about giving these actions ; the feudal
lords resisted the endeavour on the ground that business
which properly belonged to their courts was thus attracted to
the king's court. Bracton has to argue that the new actions
are purely possessory, that they are mere necessary supple-
ments of the Assize of Mort d'Ancestor and that they do no
wrong to the lords\ The story is instructive ; it illustrates
what I may call the irrational element in the history of the
forms of action, the element of chance in legal history. The
result is that a mere accident of no juristic value, the mere
accident that the degree of kinship between heir and ancestor
is near or remote, decides whether the heir shall have a twelfth
century remedy by Assize of Mort d'Ancestor or a thirteenth
century remedy by a Writ of Cosinage ; the procedure in
these two actions is substantially different, the one is more
archaic than the other and yet the same principle of law
covers them both.
1 Bracton's Note Book, pi. 1215 ; Biact. f. 28?.
o
26 Forms of Action Lect.
(r) The third of the possessory Assizes is that of Darrein
Presentment or last presentation {de ultima preseiitationc).
It deals with a matter which was of great value in the middle
ages and which gave rise to an enormous amount of litigation,
the advowsons of churches. If a man claimed property in an
advowson his remedy was by a Writ of Right closely resem-
bling the Praecipe in capite for lands. The king had asserted
successfully both as against the feudal lords and as against
the ecclesiastical tribunals that all litigation about the right
to present to churches must take place in his court. The
Writ of Right of Advowson was the proprietary remedy ; but
here also a possessory action was needed and was instituted.
The procedure closely resembled that of the two other
possessory assizes though it was not quite so summary as
that of the Novel Disseisin. Its principle was this : if a
church is vacant the person who last presented or his heir is
entitled to present ; if any other person conceives that he has
better right, he must bring his action and recover the advow-
son, but until he has done this it is for the person who last
presented, or his heir, to present again. The question
addressed to the recognitors is this — Who was the patron
who in time of peace presented the last parson to this church?
The act of successfully presenting a parson to a church was
regarded as a seisin, a possession of the advowson ; the man
who has performed that act is seised of the advowson and
when the church again falls vacant, it is for him or, if he be
dead, his heir to present another parson, provided that in the
meantime he has not been deprived of his seisin by judgment.
The need of some rapid procedure to meet cases in which two
persons claimed the right to present to the same church was
great ; while an action by Writ of Right of Advowson was
dragging on its wearisome length, the parishioners would be
left as sheep without a shepherd or the bishop would step in
and deprive both litigants of the coveted piece of patronage ;
therefore let him who has presented once present again until
some one has proved a better right in due course of law.
{d) A fourth Assize must here be mentioned, the Assize
Utrum or Writ Juris Utruvi. It reminds us that in the
twelfth century royal justice had to contend not only with
feudal justice, but also with ecclesiastical justice. If land has
Ill The Assize Utrmii 327
been dedicated to ecclesiastical purposes, has been given in
free alms, in frank almoign {libera elcmosyna) the church claims
cognizance of all disputes relating to that land The question
is what to do when one party to the litigation asserts that the
land is held in free alms, and so within the sphere of the
ecclesiastical tribunals, while the other asserts that it is lay fee.
This difficulty gave occasion for one of the very earliest
applications of what in a loose sense we may call trial by
jury. One of the Constitutions of Clarendon (i 164)^ is to this
effect : ' If a dispute arises between a clerk and a layman, or
a layman and a clerk about any tenement which the clerk
asserts to belong to free alms, the layman to lay fee, it shall
be decided on a recognition of twelve lawful men by the
judgment of the king's chief justiciar, whether {jitruni) the
tenement belongs to free alms or to lay fee. And if it be
"recognized" to belong to free alms, the plea shall proceed in
the ecclesiastical court, but if it be lay fee then the plea shall
proceed in the king's court, unless both parties claim to hold
of the same bishop or baron, in which case it shall proceed in
the [feudal] court of that bishop or baron. And the person
who is in seisin shall not lose his seisin on account of that
" recognition " until the plea be tried out.' We see here a
preliminary procedure ; it is to settle nothing about right,
nothing even about seisin, it is merely to settle the competence
of tribunals, to decide whether the action shall proceed
before a spiritual or a temporal tribunal. But it had a very
peculiar history. Subsequent changes in the relation between
church and state, changes which in this instance extended the
sphere of the lay courts at the expense of that of the Courts
Christian, gave this assize a new turn. Still keeping its old
form of an assize it became a proprietary remedy in the king's
court for a parson who wished to recover the lands of his
church ; it became ' the parson's writ of right.' We have
constantly to remember this, that an action instituted for one
purpose in one age comes to be used for another purpose in
another age'-.
^ Cap. 9.
^ Tris Ancien Coiituriiier, c. 57; Const. Claiend. c. 9; Glanv. xiir. ■23;
Bract, f. 285 b; Fitz. A'^at. Brcv. 49; Bl. Coinin. Hi. 252; V>\\.\.'i\\\-^x,Schii.'urgi:iuhle,
324-
o
28 For ins of Acfwii Lect.
These were all the actions which in England permanently
took the name and form of assizes. By saying- that they
took the form of assizes I mean that the original writ
directed the summoning of a body of recognitors to give sworn
answer to a particular question formulated in that writ. In
Normandy there were some other assizes, and these may for
a short while have been used in England ; but the germ of
trial by jury having once been introduced in these formal
assizes, it began to spread outside their limits, to take a new
shape and become susceptible of free development. We learn
from Glanvill that certain incidental questions may be raised
in an action which will be decided by the oath of twelve men.
For example, A brings an Assize of Mort d'Ancestor against
B, who is an infant ; now it is a rule of law that an infant
during his infancy need never answer for land of which his
ancestor died seised as of fee ; if the infant has come to the
land as heir of one who died seised as of fee, then the action
against him must stand over until he is of full age. Now in
this case the infant asserts that his ancestor died seised as of
fee, and that therefore he need not answer; the demandant
asserts that the infant's ancestor was not seised in fee, he was
seised merely as guardian in chivalry. To settle this question
a body of twelve men can be summoned. The question that
they are to be asked is not the question formulated by the
original writ, which concerns the alleged seisin of A's ancestor;
it is quite another question relating to the alleged seisin of B's
ancestor, and Glanvill is inclined to regard it as a ' prejudicial*
question, that is to say an affirmative answer will not prove
that A is entitled to recover, it will merely prove that B, albeit
an infant, must answer A\ So again, to put another case, C
may bring against D an action for land, claiming that he,
C, mortgaged, or rather we must say 'gaged,' the land to D
for a sum of money which C now offers to pay ; D, however,
alleges that the land is his own, that he is seised in fee and not
in gage ; to decide this issue a body of recognitors is usually
summoned, and if it declares that D holds in gage then D
loses the land and loses the debt also, for he has chosen
a particular mode of defence to the action, and has failed in
^ Glanv. xui. 14, 15.
Ill 'Assize' and ' Jitry' 329
it'. Glanvill seems half inclined to treat the questions that
can thus be raised by pleading and answered by jury, as
numerable and nameable; there is the recognition * utrum
quis sit infra aetatem an non,' the recognition ' utrum de feodo
vel de warda,' the recognition ' utrum de feodo vel de vadio ' ;
he even casually speaks of the body of recognitors thus called
in to answer a question raised by pleading as an ' assisa^.' Our
law we see might conceivably have taken this shape, that only
certain particular issues, of which a h"st might be made, are to
be decided by the new mode of trial, that in all other cases
proof must be given in the old ways, by formal testimony, by
compurgation, ordeal, battle. But really the questions which
litigants can raise, which might well be decided by the oath of
their neighbours, are innumerable. It becomes more and more
a recognized principle that a defendant need not confine
himself to a bare denial of the charge brought against him,
that he may allege facts that disprove this charge, that if these
facts be denied, the best way of deciding the dispute is to call
in a set of twelve neighbours who will be likely to know and
sworn to tell the truth. Such a body called in, not by the
original writ, but in the course of the action, to determine
a question of fact raised by the pleadings, gets the name of
a jury {j'nrata) as contrasted with an assize (assisa) ; the
assisa is summoned by the 'original' writ issued out of the
chancery before there has been any pleading ; the jiirata is
summoned by a 'judicial' writ issuing out of the court before
which the action is proceeding, and it comes to answer a
question raised by the pleadings. Any considerable develop-
ment of this principle, however, lies in the future ; in Glanvill's
book we see no more than this, that the practice of referring
a disputed question to a body of ' recognitors' is beginning to
extend itself outside the limits of the assizes.
We have now enumerated those actions begun by royal
writ which were common in Glanvill's day. When from some
seven years later (1194) we get the oldest roll of the king's
court that has been preserved, we see that by far the greatest
part — quite nine-tenths — of the litigation there recorded falls
under the heads that we have already mentioned ; Writs of
^ Glanv. xiil. 2C — 31. - Glanv. xill. i, 2, 13, ji.
330 Forms of Action Lect.
Right, Assizes of Novel Disseisin, Mort d'Ancestor, and
Darrein Presentment, these are common ; other civil actions
are rare. Still Glanvill knew some other civil actions. By
attending to these for a while we may be able the better to
understand the manner in which the king's justice grows, and
the obstacles that impede its growth.
Claims for dower are not uncommon. According to the
general principle which is now part of the law, the widow who
wishes to bring an action for her dower must obtain a writ
from the chancery; but according to the feudal principle the
action should be begun in the court of him of whom the widow
will hold her dower, that is to say, the court of her husband's
heir, in the common case the court of her own son. VVe
therefore find a Writ of Right of Dower, whereby the king
commands the heir to hold full right to the widow concerning
the hide of land which she claims to hold of him as her
reasonable dower^ If the heir's court makes default then the
action may be removed, like any other Writ of Right, to the
county court, and thence it may be removed to the king's
court. The appropriate mode of trial, if the widow's right be
contested, is battle. But then we find this rule, which goes
far to interfere with the feudal principle : If the woman has
already got some part of her dower, then, as already said, her
action must be begun in the feudal court, the heir's court ; but
if she has as yet got no part of her dower, then she must
begin her action in the king's court. In order to do this she
can obtain a WVit of Dower, unde nihil Jiabet, which bids the
sheriff to command the holder of the land to deliver to the
widow her reasonable dower, ' whereof she complains that she
has nothing' {nude nihil habet lit dicit), and in default of his
so doing the sheriff is to summon him to the king's court, that
he may state why he hath not done it'^. Glanvill gives no
explanation of this curious rule; but Bracton does, and the
explanation is quite as curious as the rule. As the widow has
not as yet got any part of her dower it is still possible that
the holder of the land may deny the fact of the marriage.
Now the fact of the marriage can only be proved by the
bishop's certificate, marriage being a matter for the law
1 Glanv. VI. 5. - Glauv. vi. 15.
Ill IVrits of Dower 331
ecclesiastic, and the only person who can compel the bishop
to certify whether the woman was married or no, is the king ;
to the mandate of the mere lord of a feudal court he would
pay no heed. It follows that if there is any chance of a denial
of the marriage the widow must go to the king's courts
Such is the pretext for the Writ of Dower nude nihil Jial et.
Blackstone, looking at the matter from a modern point ot
view, turns the story topsy-turvy {Comm. III. 182, 183). It is
an ingenious if rather flimsy excuse for allowing widows to
sue in the king's court : Blackstone could hardly conceive
that any such excuse could ever have been necessary. We
have thus two forms of action concerning dower, and there is yet
a third, namely the writ of Admeasurement of Dower, which
lies when the widow has got more than she ought to have ;
this directs the sheriff to admeasure the land and allot to each
party what is right-.
We turn to a matter of importance in social and economic
history. There is a writ for the recovery of a serf, a ' nativus.'
This writ, de iiativo habcndo, is directed to the sheriff, and bids
him deliver to the claimant his fugitive bondman X, unless he
has taken refuge on the royal demesnes If, however, the
person thus claimed asserts that he is free, and gives the
sheriff security for the proof of his assertion, then the sheriff's
power ceases, and the would-be free man obtains a writ de
liber tate probanda, which bids the sheriff put the case before
the king's justices and summon the would-be lord to set forth
his claim*. Why can not this matter be tried in the county
court? Glanvill gives no reason ; Bracton says ' I can assign
no reason unless it be in favour of liberty, which is a thing
inestimable and not lightly to be trusted to the judgment of
those who have but little skills' Whether then we prefer to
suppose that we have here some relic of ancient times, of the
time before feudalism, or to believe that Henry, who interfered
in favour of the seisin of freehold, interfered also in favour of
personal freedom, we have here a notable fact, the man who is
claimed as a serf may go to the king's court and prove his
liberty there.
' Bract, f. 106, 296 b. - Glanv. vi. i8; Lract. f. 314
^ Glanv. .\ii. II. ^ Glanv. v. 2. '" Bract, f. 105 b.
332 Forms of Action Lect.
As regards those claims which in after days give rise to
the personal actions, those actions which, as we say, are
founded on contract or founded on tort, Glanvill has but little
to tell us ; they are seldom prosecuted in the king's court.
But the action of Debt is known there. As against the
ecclesiastical courts the king has successfully asserted that
actions for debt or for the detention of chattels if they in no
way concern marriage or testament and are brought against
laymen, belong to the temporal, not to the spiritual tribunals,
and an action of Debt is occasionally brought in the king's
own courts The writ of Debt given by Glanvill- is of great
interest for it seems to imply a very archaic conception. It is
almost an exact copy of the Praecipe in capite, a certain sum
of money being substituted for a certain piece of land. ' The
king greets the sheriff. Command X that justly and with-
out delay he render to A one hundred marks which he owes
him, so he says, and of which he (A) complains that he (X)
deforces him ; and if he will not do so summon him by good
summoners to be before me or my justices on such a day to
show why he has not done it.' The non-payment of a debt
seems regarded as a 'deforcement,' an unjust and forcible
detention of money that belongs to the creditor. We are
tempted to say that Debt is a ' real ' action, that the vast gulf
which to our minds divides the ' Give me what I own ' and
' Give me what I am owed ' has not yet become apparent^
In this action of debt the old modes of proof still prevail ;
there may even be trial by battle as there may be in a Writ
of Right and there is no mention of any jury, of anything
comparable to the grand assize^
In connexion with debts Glanvill speaks of mortgages of
lands and of goods, or rather we must say of gages, for the
term mortgage has at this time a very special sense. These
gages occasionally give rise to actions in the royal court.
^ Glanv. X. i. Observe the words 'si placitum illud ad curiam Regis trahere
possit.'
^ Glanv. X. 3.
^ That there is a close connexion between the verbs oxve and 07i<n is certain.
Dr Skeat gives ' Owe, to possess ; hence to possess another's properly, to be ia
debt, be obHged.'
•» Glanv, X. 5.
Ill Origin of tJie IVrits of Entry 333
There is already a writ for the c^age creditor calling on the
debtor to pay ; there is another for the debtor calling on the
gage creditor to receive his debt and give up the gaged land\
This latter writ is of interest, because it is the ancestor of
a large family of writs. The commonest mode then in use of
making land a security for the payment of money was to
demise it to the creditor for a fixed term of years. The writ
now in question is brought by the debtor who has made such
a demise for a term that has expired, and who is now
desirous of paying the debt and getting back the land : ' The
king to the sheriff greeting. Command X that justly and
without delay he render to A all the land in such a vill which
he gaged to him for a sum of lOO marks for a term now past,
as he says {qiiani ei invadiavit pro centum marcis ad tenniinivi
gtii praetcriit ut dicit), and to receive his money, and if he will
not do this summon him before our justices to show why he
hath not done it.' Here we see is a Praecipe for land, but not
a simple Praecipe ; it is a Praecipe with a special reason
assigned ; A is not simply claiming the land as his own, he is
claiming it as having been demised to X for a term that has
expired ; the writ assigns a reason why X should no longer
hold the land ; he has come to it by a title which no longer
holds good. Now such writs for land, Praecipes with a
reason assigned why the tenant's title is invalid, are going to
play a great part in future history. The change of a few words
would turn the writ now before us into one of the commonest
of the ' Writs of Entry,' the Writ of Entry ad termimnn qui
praetcriit. Here is the first germ of a great institution. We
learn also that in this action, if the tenant affirms that he
holds the land in fee, either party can have a ' recognition ' to
decide the question ' Jitrum nt feodum suum vel vadium suum!
This is an important step ; the action is not ' an assize ' ; the
original writ says nothing about recognition, nothing about
the mode of trial, but either party can, if he pleases, have
twelve neighbours called in to answer the question ' fee or
gage.' If neither cares for this new-fangled procedure then
the case is treated as though it were one of Writ of Right, and
there may be battle or grand assize to decide, not this narrow
^ Glanv. X. 7, 9.
334 ForiJis of Action Lect. Ill
question, but the wider question whether A or X hath the
greater right to this land\ We seem to catch the thought
that when there has been some recent gage of the land easily
provable by the testimony of the neighbours, it is hard on A
that X should be allowed to raise the whole question of
greater right, and force A to stake all on the issue of a battle.
But still in this region of debt and gage, battle reigns as
a normal mode of proof. Suppose that the creditor has
a charter, a deed as we should say, if the debtor acknowledges
the seal as his, well and good, he must pay even if he never
put the seal there, for he ought to have taken better care of
his seal ; but if he denies that the impression on the wax is
that of his seal, then there may be battle, though he may be
debarred from this by a collation of the disputed document
with other charters which admittedly bear his seaP. In
another case relating to the loan of chattels Glanvill leaves us
an unanswered query as to the mode of proof that is appli-
cable, and makes no suggestion that the question should go
to a jury^
^ GInnv. X. 9. - Glanv. x. 12.
* Glanv. X. 13.
LECTURE IV
III. I189-1272. This, our third period, extending from
the death of Henry II to the accession of Edward I, is a period
of rapid growth, as we learn from Bracton's treatise. New
writs are freely invented, though towards the end of Henry Ill's
reign this gives rise to murmurs and the barons seek to obtain
a control over the king's writ-making power. There is now
a large store of original writs which are writs of course {previa
de ciirsii), that is to say, they may be obtained from the
subordinate officers of the royal chancery on payment of fees,
the amount of which is becoming fixed. A Register of these
writs of course has been formed and is kept in the chancery.
The earliest Register known to me is one of 1227. In the
Cambridge University Library we have two other Registers
of Henry Ill's reign ; Registers of Edward I's reign are
common in MS. The size of the Register is rapidly
increasing.
Litigation about land is still chiefly conducted by the pro-
prietary action begun by writ of right, and the two possessory
actions of Novel Disseisin and Mort d'Ancestor. When the
tenement in question is held in chief of the crown, instead of
a writ of right there is a Praecipe in capite — but the lords have
succeeded in getting a provision inserted in Magna Carta to
the effect that such a writ as this, which at once summons the
tenant before the king's court shall not be used if the tene-
ment is held of a mesne lord who has a court — in that case
the action must be by writ of right {breve de recto tenendd)
commanding the lord to do justice. But this victory of
feudalism is illusive. Between the proprietary action and the
possessory assizes there is growing up a large and popular
33^ Forms of Action Lect.
group of brei'ia de ingressti — ' Writs of Entry.' The charac-
teristic of a writ of entry is that it orders the tenant to give
up the land or answer the demandant's claim in the king's
court — thus far following the form of the Praecipe in capite,
but goes on to add that there is some specified and recent flaw
in the tenant's title — he only had entry into the land, e.g. by
the feoffment of a husband who was alienating his wife's
inheritance, or by the feoffment of an infant, or by the feoff-
ment of an abbot without consent of the monks, or by the
feoffment of one who had disseised the demandant. This
flaw, this recent flaw, in the tenant's title is suggested in order
to take the case outside the rule that litigation about pro-
prietary rights in land should be begun in the lord's court.
The flaw must be recent. If the land has changed hands several
times since the unlawful entry then no writ of entry is applic-
able and there must be a writ of right. The various writs of
entry therefore are very numerous — there is one applicable to
almost every conceivable case in which a tenant has come to
the land by some title in which a recent flaw can be pointed
out — we hear e.g. of a form of action as a writ of entry * sur
disseisin in the per', a writ of entry ' snr disseisiti in the per
and ctti'^.' In 1267 the Statute of Marlborough, which in many
ways marks the end of feudalism, in effect abolished the
restrictions on the formation of writs of entry — but it only did
this by adding to their number. If since the unlawful entry
the land had passed through several hands a writ of entry * in
the post' might be used — the demandant might allege that
the tenant only had cx\\.ry post (after) a disseisin committed
by someone without showing how the land had passed from
the disseisor to the tenant.
The words of the Statute (cap. 29) were as follows :
' Provisum est eciam, quod si alienaciones illae, de quibus
breve de ingressu dari consuevit, per tot gradus fiant, quod
breve illud in forma prius usitata haberi non possit, habeat
conquerens breve de recuperanda seisina, sine mentiona
graduum, ad cujuscunque manus per hujusmodi alienaciones
res ilia devenerit, per brevia originalia per consilium domini
Regis providenda.'
^ For the form of these writs of entry see the !5elect Writs, ^ost.
.IV The Real Actions
337
' It is provided also, That if those ahenations (whereupon
a writ of entry was wont to be granted) hap to be made in so
many degrees, that by reason thereof the same writ cannot be
made in the form beforetime used, the plaintiffs shall have a
writ to recover their seisin, without making mention of the
degrees, into whose hands soever the same thing shall happen
to come by such alienations, and that by an original writ to be
provided therefor by the council of our lord the King\'
We are accustomed to regard the English real actions
as a hopeless tangle — this is the result of the writs of entry.
If we place ourselves at the death of Henry II the situation
is really very simple. Let us review the position. If a pro-
prietary action is to be brought for land it must be begun
by Praecipe quod reddat (after Magna Carta, 121 5, this is only
permissible where the demandant claims to hold in chief of
D 07) linns Rex) or by Breve de recto tenendo. In either case
the demandant will have to allege that the land is jus et
Jiaereditateni siiam — will have, i.e. to rely upon proprietary
right. He will have a proprietary, petitory, droiturel action,
in the language of the Roman Law a vindicatio rei. Besides
this there are two possessory actions, each of narrow scope
and analogous to the possessory interdicts: (i) The Novel
Disseisin, which is the English counterpart of the Roman
Interdict Unde Vi and is probably derived from that source
immediately through the actio spolii of the Canon Law. It has
a narrow limit ; A complains that X has disseised him — that
this very X has ousted this very A from seisin. If that be
so then, without any discussion of 'right,' A ought to be
put back into seisin — ' salvo jure cnjuslibet! (2) The Mort
d Ancestor : B has died seised as of fee — not necessarily 'as of
right ' — he had, or behaved as having, heritable rights, A is
his next heir, but, before A could enter, X entered. If this
be so, X is to be turned out of seisin and A placed in
seisin of that land. As I understand there was a good
Roman analogy for this too, the haereditatis petitio possessoria,
but it is doubtful whether this was known to the lawyers of
Henry II.
These possessory assizes are marked off from the pro-
^ This is the translation given in the Statutes at Large.
M. E. 22
338 Forms of Action Lect.
prietary action, first by a summary royal procedure, in which
essoins are reduced to a minimum, and secondly by their
short periods of limitation.
Then come the writs of entry invented in the time of
Richard, John, and Henry III. A writ of entry is, as we have
seen, a writ o{ praecipe suggesting a recent flaw of a particular
kind in the tenant's title. Their object seems to have been
to evade feudal jurisdiction, probably on the theory that they
are in a certain sense possessory and therefore do not fall to
the lords. The demandant relies on a recent seisin, hence
these writs are confined within ' the degrees,' that is to say
they are competent only if the tenant is first, second or third
faulty possessor^ Even this limit is removed by the Statute
of Marlborough after which a writ of entry can be used if it
can be said that the tenant came to the land after some faulty
or wrongful entry.
It is these writs which make the history of our forms of
action so very complex and unintelligible. Are they pro-
prietary, are they possessory? The answer seems to be that
in their working they are proprietary, in their origin possessory
or quasi-possessory, since the justification for litigation in
the king's court lies in the notion that the demandant has
recent seisin on his side.
The result of this, as to substantive law, is that we seem to
get a tertium quid between property and possession, between
jus and seisina. To this I shall recur-.
In what I have just said I have been compelled to contra-
dict Blackstone. He treats the writs of entry as older than
the assizes. ' In the times of our Saxon ancestors, the right
of possession seems only to have been recoverable by writ of
entry^' 'Thus Henry II probably in the twenty-second year
^ Here Professor Maitland has in mind the writs of entry siir (iisseisi)i or on
intrusion; in other instances, 'the degrees' stretched only to the second faulty
possessor, e.g. where the tenant C is alleged to have entered per B ctti A the
husband (cui invi/a) or the idiot [dum iton compos) or the doweress or life tenant
{ad comniunem legem etc.). In these ca^es A cannot be said to be a faulty
possessor, in that of the idiot or infant he may even be the demandant himself —
it would perhaps be more accurate in the text to say ' if the tenant is first, second
or third from the creator of the flaw in the title.'
* J'dst, p. 340. ■* Coniin. ni. 184.
IV Dates of Assizes and Pl^rits of Entry 339
of his reign gave the assizes of novel disseisin and mort
d'ancestor.' In this last statement there is I think a small
mistake, Blackstone refers these two assizes to the Council
held at Northampton in 1176. Now it is very possible that
the Mort d'Ancestor was created on that occasion, and that
we have the words which created it in an instruction to the
itinerant justices, some words of which Bracton cites in a note
and the whole of which will be found in the Select Charters.
But the Novel Disseisin seems about ten years older — we have
not got the text of the ordinance which created it, but on the
Pipe Roll for 12 Henry II we begin to have entries of fines
inflicted /w disseisina super assisam Regis. There can I think
be little doubt that the ordinance was made at the Council of
Clarendon in ii 66. But this mistake is small compared with
that of supposing that the writs of entry are older than the
assizes, and I need hardly say that it is nonsense to suppose
that our Saxon ancestors knew anything about writs of entry.
As to their date, we must start with the fact that Glanvill
gives no writ of entry, though (x. 9) he has got just one writ
which might easily be converted into a writ of entry ad ter-
mimim qui praeteriit. The Registers of the early years of
Henry III give two such writs, the writ of entry ad terniinmn
qui praeteriit and the writ cui in vita, and on a Patent Roll of
1205, there is a writ of entry sur disseisin, a writ for the
disseisee against the heir of the disseisor, followed by a writ
which directs that this henceforward shall be a writ of course
(Rot. Pat. i. 32), before the middle of the century we find
almost all the writs of entry in use, except those which were
afterwards given by statute. The truth is that the writs of
entry presuppose the assizes. Suppose that X has disseised
A and that X is still in seisin, there is no writ of entry
applicable to this simple case, because it is a case for an
Assize of Novel Disseisin. If X dies and his heir Y enters
then there is a writ of entry for A against Y, because there
can not be an assize, for an Assize of Novel Disseisin can only
be brought against a disseisor. It is true that very late in the
day we do find a writ of entry covering the ground of the
Assize of Novel Disseisin, 'the writ of entry in the nature of an
assize'; but I do not believe that this writ appears until very
22 — 2
340 Forms of Action Lect.
late times, until Richard II's reign, when the procedure by
way of assize had become more clumsy than the procedure
by writ of entry — more clumsy because more antiquated.
I have been compelled to insist on this point, because
Blackstone's theory turns the whole history of seisin up-
side down.
Meanwhile a number of other gaps are being filled up with
new writs. For instance, the Assize of Mort d'Ancestor, as
we have seen\ lies only when the claimant can assert that the
person who has just died in seisin, and whose heir he is, was
his father, mother, sister, brother, uncle, aunt. It had been
sufficient to provide for the common cases ; if the dead
person was the claimant's grandfather or cousin the assize
could not be used. This gap was filled up in 1237 by the
actions of Aiel, Besaiel and Cosinage, though the lords resisted
these new inventions. So again the group of writs relating
to advowsons has received additions, and there is another
group relating to wardships and marriages. Here again we
see the line between proprietary and possessory actions ;
besides the proprietary writ of right of ward there is the
possessory action of ejectment of ward.
There are also writs for settling disputes between lord and
tenant — writs relating to easements, writs relating to rights
of common. Very frequently there is one writ which is
deemed possessory and one which is deemed proprietary or
droiturel — thus there is an assize of nuisance and a writ quod
pennittat p7'osternere for the abatement of nuisances which
can not be brought within the terms of the assize. The
group of actions relating to land and to the so-called incor-
poreal hereditaments is a very large one — but the forms which
hereafter will deserve attention are the possessory assizes, the
writs of entry, and the writ of right. They form a sort of
hierarchy of actions — the writs of entry seem to bridge the
gulf between possession and property, between seisin and
right. This, as we shall hereafter see, is a very remarkable
feature of English Law.
An illustration of the important results of the invention of
new writs may be found in the remedies granted to termors.
1 Ante, p. 325,
IV Remedies of the Termor 341
Slowly a practice has arisen of letting land for terms of years.
At first the termor's right is regarded as a merely contractual
right — his only remedy is an action of covenant against his lessor
— indeed in the first half of the thirteenth century we seldom
find the action of covenant used for any other purpose. If
ejected by his lessor, the termor can recover the land by action
of covenant ; if disturbed or ejected by anyone else his one
remedy is to obtain by the same action damages from the
lessor who has contracted that he shall enjoy the land during
the term. He is not regarded as having any right in the
land, or any seisin, i.e. possession, of the land, he has only, as
we should say, ^V/j iii pei'sonam. But about 1237, as it would
seem, a new writ was given him, the qiiare ejecit infra
tej'juinuin which would enable hi mi to recover the land from
any person who ejected him, at least if that person claimed
under the lessor. Bracton thought that it would enable him
to recover against any ejector ; but the form which came into
use supposed that the defendant was a purchaser from the
lessor, and it seems to have been held that it could not be
brought against a mere stranger to the title. We are even
told who invented this writ ; it was William Raleigh, the chief
justice. There is no legislation, no intention to give a new
right, merely a new remedy ; but as you see the character of
the old right is being changed, it is ceasing to be a merely
contractual y«j" in personam. In a few years we have Bracton
discussing the problem whether the termor is not seised of the
land. Undoubtedly his lessor is seised, and if the termor be
ejected by a third person the lord can recover the land from
that third person as from one who has disseised him; — but the
termor also is getting protection — what are we to say, can
two persons at one and the same time be seised or possessed
of the same acre in two different rights ? Bracton hesitates —
Roman law points one way, English practice another. In
course of time in the fifteenth century, there will be a differentia-
tion of terms, the termor will be possessed, the freeholder will
at the same time be seised. Our law thus has on its hands
the very difficult task of working two difterent sets of posses-
sory remedies — the ancient set which protect seisin, the more
modern set which protect possession. Then 'seised' will
342 Forms of Action lect.
come to imply the right to use the assizes competent to
the freeholder, ' possessed ' will imply the right to use the
writ of trespass.
Meanwhile the actions which came to be known as
personal make their appearance. The oldest seems to be
' Debt-Detinue,' which appears already in Glanvill I say
'Debt-Detinue' — originally men see little distinction between
the demand for a specific chattel and the demand for a certain
sum of money.. Gradually this action divides itself into two,
Detinue for a specific chattel, Debt for a sum of money — ^this
differentiation takes place early in the thirteenth century. As in
Detinue the judgment given for the plaintiff awards him either
the chattel itself, or its value; and, as the defendant thus has
the option of giving back the chattel or paying its value,
Bracton is led to make the important remark that there is no
real action for chattels — an important remark, for it is the
foundation of all our talk about real and personal property.
To Debt and Detinue we must now add Replevin, the action
for goods unlawfully taken in distress. This action we are
told was invented in John's reign — another tradition ascribed
its invention to Glanvill. Covenant also has appeared, though
during the first half of the thirteenth century it is seldom
used except in cases of what we should call leases of land for
terms of years. Gradually the judges came to the opinion
that the only acceptable evidence of a covenant is a sealed
writing, and one of the foundations of our law of contract is
thus laid. Account appears in Henry Ill's reign; but it is
very rare and seems only used against bailiffs of manors.
But the most important phenomenon is the appearance
of Trespass — that fertile mother of actions. Instances of
what we can not but call actions of trespass are found even
in John's reign, but I think it clear that the writ of trespass
did not become a writ of course until very late in Henry Ill's
reign. Now trespass is to start with a semi-criminal action.
It has its roots in criminal law, and criminal procedure.
The historical importance of trespass is so great that we
may step aside to look at the criminal procedure out of
which it grew. The old criminal action (yes, action) was
the Appeal of Felony {appelluni dz fcloiiia). It was but
IV The Appeal of Felony 343
slowly supplanted by indictment — the procedure of the com-
mon accuser set going by Henry II, the appeal on the other
hand being an action brought by a person aggrieved by the
crime. The appellant had to pronounce certain accusing
words\ In each case he must say of the appellee ^ fecit hoc
(the murder, rape, robbery or mayhem) neqtiiter et in felonia^
vi et arinis et co7itra paccvi Domini Regis. ^
He charges him with a wicked deed of violence to be
punished by death, or in the twelfth century by mutilation.
The procedure is stringent with outlawry in default of appear-
ance. The new phenomenon appears about the year 1250, it
is an action which might be called an attenuated appeal
based on an act of violence. The defendant is charged with
a breach of the king's peace, though with one that does not
amount to felony. Remember that throughout the Middle
Ages there is no such word as misdemeanour — the crimes
which do not amount to felony are trespasses (Lat. transgres-
siones). The action of trespass is founded on a breach of
the king's peace : — with force and arms the defendant has
assaulted and beaten the plaintiff, broken the plaintiff's close,
or carried off the plaintiff's goods ; he is sued for damages.
The plaintiff seeks not violence but compensation, but the
unsuccessful defendant will also be punished and pretty
severely. In other actions the unsuccessful party has to
pay an amercement for making an unjust, or resisting a just
claim ; the defendant found guilty of trespass is fined and
imprisoned. What is more, the action for trespass shows its
semi-criminal nature in the process that can be used against
a defendant who will not appear — if he will not appear, his
body can be seized and imprisoned ; if he can not be found,
he may be outlawed. We thus can see that the action of
trespass is one that will become very popular with plaintiffs
because of the stringent process against defendants. I very
much doubt whether in Henry Ill's day the action could as
1 See e.g. Bracton, f. 138 a, for the accusa'ion by a brother in an appeal of
murder (reciting that the appellor and his brother, the murdered man, were in the
peace of God and of our Lord the King at such a place and on such a day) wliere
the words ' vi et ariitis ' do not appear but are rejilaced by selling out the detail
of the assault and the mortal wounding with a sword.
344 Forms of Action Lect.
yet be used save where there really had been what we might
fairl}- call violence and breach of the peace ; but gradually
the convenience of this new action showed itself In order
to constitute a case for ' Trespass vi et arviis,' it was to the
last necessary that there should be some wrongful application
of physical force to the defendant's lands or goods or person —
but a wrongful step on his land, a wrongful touch to his
person or chattels was held to be force enough and an
adequate breach of the king's peace. This action then has
the future before it.
Meanwhile trial by jury is becoming the normal mode of
trying disputed questions of fact. The older modes of trial
are falling into the background. In Debt and Detinue and
some other cases there still is compurgation. The obsolescence
of this ancient mode of proof, however, is a gradual process.
It can not be explained by rationalistic statements such as that
in Debt and Detinue the cause of action is one peculiarly within
the knowledge of the defendant. We must look rather to the
historical order of development of the various actions. Debt
and Detinue are formulated at an early period , Trespass is the
product of a later age. But the permissibility of this old
mode of proof in Debt and Detinue is of great importance — it
sets men on attempting to substitute for them, even within
their own sphere, forms of action in whicli there will be trial
by jury. And so with the forms of trial appropriate to the
assizes. Though in a large sense this may be called a sub-
form of trial by jury, still it is an archaic sub-form and men
tr)- to evade it ; they would gladly, if they could, use actions of
trespass instead of the novel disseisin, and the mort d'ancestor.
In these old assizes the question for the recognitors was
formulated in the original writ, in the newer forms the pro-
cedure was more flexible — a jury was only called in after the
parties to the action had by their pleadings come to some
issue of fact — it was not called in until pleading had decided
what exactly was the real point of dispute.
IV. 1272-1307. The reign of 'the English Justinian'
may be treated as a period by itself — a period of statutory
activity. Statutes made by king and parliament now interfere
with many details both of substantive law and of procedure.
IV Writs in Consimili Casu 345
A number of new actions are given by statute, e.f^. the De Denis
gives the issue in tail the ' formedon in the descender'; this is
a well-known and typical example The whole system stiffens.
Men have learnt that a power to invent new remedies is a
power to create new rights and duties, and it is no longer to
be suffered that the chancellor or the judges should wield this
power. How far the process of crystallisation had gone, how
rigid the system was becoming, we learn from a section of
the Statute of Westminster II, 13 Edw. I c. 24 (1285).
Men have been obliged to depart from the Chancery without
getting writs, because there are none which will exactly fit
their cases, although these cases fall within admitted principles.
It is not to be so for the future — ' Et quotienscumque de
cetero evenerit in Cancellaria quod in uno casu reperitur breve
et in consimili casu cadente sub eodem jure et simili indigente
remedio, concordent clerici de Cancellaria in brevi faciendo
vel atterminent querentes in proximo parliamento et scribant
casus in quibus concordare non possunt et referant eos ad
proximum parliamentum et de consensu jurisperitorum fiat
breve ne contingat de cetero quod curia diu deficiat querenti-
bus in justicia perquirenda.' 'And whensoever from henceforth
it shall fortune in the Chancery, that in one case a writ is
found, and in like case falling under like law, and requiring
like remedy, is found none, the clerks of the Chancery shall
agree in making the writ ; or adjourn the plaintiffs until the
next Parliament, and let the cases be written in which they
can not agree, and let them refer them until the next Parlia-
ment, and by consent of men learned in the law, a writ shall
be made, lest it might happen after that the court should long
time fail to minister justice unto complainants.' In after
times we hear complaints that the Chancery made but little
use of the permission thus given to it ; but for my own part
I doubt whether it enjoyed or was intended to enjoy any very
considerable liberty. It may vary the old writs — but it is not
to invent new rights or new remedies — in consimili casu
cadente sub eodem jure et simili indigente remedio. But when
we say that but little use was made of this Statute there is
one great exception. It is regarded as the statutory warrant
for the variation of the writs of trespass so as to suit special
346 Forms of Action Lect. IV
cases, until at length — about the end of the Middle Ages —
lawyers perceive that they have a new form ' Trespass upon
the special case ' or ' Case.' Specialised forms of this branch
off forming (i) Assumpsit, so important in the law of Contract,
(2) Trover, (3) Deceit, (4) Action upon the Case for words —
slander and libel. It is worth noting that a writ issued by
the Chancery is not necessarily a good writ. The justices
may quash it as contrary to law, and in the later Middle Ages
the judges are conservative ; they hold the writ bad not
merely if it does not suit the case but if it contravenes what
they deem legal principle. At any rate the tale of common
law {i.e. non-statutory) actions was now regarded as complete^,
The king's courts had come to be regarded as omnicompetent
courts, they had to do all the important civil justice of the
realm and to do it with the limited supply of forms of action
which had been gradually accumulated in the days when
feudal justice and ecclesiastical justice were serious com-
petitors with royal justice.
^ Notaudum. Registrum Brevium — printed by Rastell 1531, Medieval Regis-
ter MS. (there are many in the University Library). The earliest seen by me is a
Register sent by Henry to Ireland — it contains about 50 writs. There is an early
Register of Henry HI in the University Library (ii. 6. 13). This book has grown
to perhaps 50 times its bulk when printed under Hen. VHI ; there is the work
of four centuries in it. There are Commenlaries ; the Old Natura Brevium and
Fitzherbert's Natura Brevium published 1534 (Fitz. ob. 1538). His work which
Coke called 'an exact work exquisitely jienned' ran through many editions. The
theme of the expounder is not the nature of rights but the nature of writs.
LECTURE V
V. 1307-1833. A period lasting from 1307 lo 1833 is
enormously long, still I do not know that for our present
purpose it could be well broken up into sub-periods. Our
interest must be chiefly concentrated on the action of trespass.
We may perhaps draw a map of the ground. Here is a sketch
(see next page).
I have tried to assign dates in a rough way to the various
developments of trespass , but you should understand that
this, from the nature of the case, must be a somewhat arbitrary
proceeding. So continuous is legal history that the lawyers
do not see that there has been a new departure until this has
for some time past been an accomplished fact ; their technical
terminology will but slowly admit the fact that a single form
of action has become several forms of action.
From Edward I's day onwards trespass vi et armis is a
common action. We may notice three main varieties — un-
lawful force has been used against the body, the goods, the
land of the plaintiff; so we have trespass in assault and
battery, trespass de bonis asportatis, trespass quare daiisuni
/regit. These are the main varieties, but the writ can be varied
to meet other cases and sometimes states the facts of the
particular case pretty fully, e.g. the defendant has not only
assaulted the plaintiff; but has imprisoned him and kept him
in prison so many days, or again, the defendant's dog has
bitten the plaintiff's sheep. But for a while it seems essential
that there should be some unlawful force, however slight,
something that can by a stretch of language be called a
breach of the peace. Now, among other things that the writ
of trespass can do is that it can protect possession of land.
348
Forms of Action
Lect.
If B trespasses on the land which A possesses, A can recover
damages from B by a writ of trespass quare viet annis — B has
broken A's close and the king's peace. A can recover damages,
CrtrrvLrtccl, ProcccCuro
but if B proceeds to eject A, though A may recover damages
he can not recover possession of the land by this writ. If
A wants to recover possession he must bring an assize or a writ
V The Tenants in Villeinage 349
of entry, or a writ of right. Now the possession which is thus
protected by the qiiare vi et armis is something different from
the seisin which is protected by the assizes. The action of
trespass grows up in an age in which the letting of land for
terms of years has become a common practice — and if land be
so let to a farmer and a stranger trespass, it is the termor, not
the freeholder, who will be able to complain that the stranger
has entered and broken his close. Indeed, after some little
hesitation, it is admitted that if the lessor without justification
enters the land demised to the termor, the termor will be able
to bring a writ of trespass against him, albeit the lessor has
only entered on land of which he himself is seised. Thus we
are coming to have two protected possessions, the old posses-
sion or seisin protected by the assizes, the new possession
protected by the writ of trespass. The two terms become
specified. We may, I think, fix upon the middle of the fifteenth
century as the time of the specification. Littleton, who wrote
between 1474 and 148 1, in section 324 says in effect that
a termor is not seised but is possessed. But in section 567
he himself slips into speaking of the termor as seised.
So again, the holder in villeinage now gets protection.
The assizes did not protect him ; they did not protect him
against mere strangers, much less against his lord. The assize
of novel disseisin required that the plaintiff should be dis-
seised de libera teneniento suo. To have extended the royal
protection to holders in villeinage would have been too bold a
measure even for Henry II. The view of the king's court
was that the lord of the manor was seised of the villein tene-
ments. If a stranger ejects one of the villein tenants it is
the lord, not the tenant who is disseised. The tenant's remedy
was an action in the lord's court, and so long as the manorial
courts were efficient tribunals the tenant in villeinage, even
though personally a villein, was, I think, very fairly and
efficiently protected against all but his lord. Times had
changed when the action of trespass became common at the
end of the thirteenth century. The new action was based on
violence and breach of the peace. The mere tenant at will
was allowed that action, was allowed to call the land clausnui
siiuin. Putting the rights of the tenant in villeinage at their
350 Forms of Action V
lowest, he was still a tenant at will, and as such should have
the action of trespass against all but the lord. Then in the
middle of the fifteenth century we begin to hear hints that he
may bring trespass even against his lord. In 1457 we hear
such a hint ; and in 1467 and 148 1 it is definitely said that
the copyholder — that is the new name for the tenant in
villeinage, shall have an action against the lord if ejected
contrary to the custom of the manor. This, of course, is an
enormously important step.
Thus there are many persons protected in possession by
the writ of trespass who are not seised. But the protection
thus given is only that of an action for damages — one can not
recover possession by means of such an action. However,
just at the end of the Middle Ages there comes a change. The
special form of a writ of trespass applicable to the case of an
ejected lessee is known as a writ de ejcxtione finnac, it calls on
the defendant to answer ' quare vi et armis intravit [unum
mesuagium] quod M demisit praedicto A ad terminum qui
nondum praeteriit et ipsum A ejecit de praedicta firmasua , . .
contra pacem nostram.' It is just a writ of trespass vi et armis.
Now, at the very end of the fourteenth century it seems perfectly
settled that this writ will only give damages and will not
restore the plaintiff to the land (Pasch. 6 Ric. II, Fitz. Abr.
Ejcctiojie finnae, pi. 2). On the other hand, about the middle
of the fifteenth century, lawyers certainly speak as though
possession might be recovered by this writ (Pasch. 7 Edw. IV
(1467), f. 6, pi. 16; Mich. 21 Edw. IV (1481), f. 11, pi. 2). A
judgment of 14 Hen. VII, in error, however, seems to have been
necessary to decide the point finally (Fitz. N. B. 220, 1491-2).
Thus it became settled that judgment might be given that
the plaintiff do recover his term, and a writ might go to the
sheriff bidding him put the plaintiff in possession — habere
facias possessionem. This step may have been easier because
there was an older writ — quare ejecit infra termimim — whereby
a termor might recover possession from persons claiming
under the lessor.
To sum up for a moment. Early in the reign of Henry III
the termor's remedy was an action of covenants
^ Cracton, f. 220, and Canibiidgc Regibter, ciic. 1237.
V Freeholder gets Termor s Remedy 351
Raleigh invented the writ of qnare ejecit infra termimnn.
Bracton thought it would enable the termor to recover contra
qiioscnnque dejcctores^. However (and this is a good instance
of inflexibility) the writ actually settled supposed the ejector
to have bought from the lessor. It was then held that the
writ only lies against those claiming under the lessor.
Then Trespass comes into use — and one specialised form of
trespass qtcare vi et arniis, is trespass de ejectione firniae — this
lies against all, but only for damages.
[Fitzherbert (N. B. 198 A) begins a confusion which has
misled later writers. He supposes ejectione firmae to be older
than qiiare ejecit infra termi?mm — which is not true. He also
supposes trespass primeval — this certainly is not true.]
The action of trespass de ejectione jirmae becomes the
Action of Ejectment, and the common means of recovering
possession of land, no matter the kind of title that the
claimant asserts. What makes this action of ejectment so
interesting is the process whereby the freeholder acquires the
termor's remedy. Why did he want it } The reasons are
twofold, first the dilatoriness of the old proprietary or droiturel
action with their essoins, vouchers, and possible trial by battle
or the grand assize, and secondly the rudeness of the old
possessory actions, each with its narrow formula (a process
which confines the jurors to the answering of questions of
pure fact, a process carried out under cover of a highly
technical system of pleading which sets many traps for the
litigant. But this step is only made under cover of an
elaborate fiction. It may occur to you to ask why so elaborate
a fiction is necessary. Has not the principle been conceded
that possession may be recovered in an action for trespass?
A claims land against X, why should he be compelled to say
that he, A, demised the land to John Doe, who was ejected,
and bring the action in John Doe's name — why should it not
be enough, in an action of trespass, to say that A himself
was ejected ? The answer to that is I think this — if you are
a freeholder claiming land you should bring a writ of entry,
or a writ of right. If you, being freeholder, have been ejected,
that is a disseisin, you should bring the assize of novel dis-
^ Bracton, f. 220.
o
52 Forms of Action V
seisin. The law has provided you with abundant remedies, both
proprietary and possessory, you must use them. It to us it
seems that such an answer as this is unsatisfactory we should
try to look at the matter from X's point of view. Has he not,
so to speak, a vested interest in the maintenance of the old
procedure. You are proposing to use against him an action in
which he may be imprisoned and outlawed, while, supposing
that he is in the wrong, the law has provided other forms of
action which do not permit this procedure against his person.
Arguments of this kind have had a considerable influence on
the course of our legal history, and have produced very odd
results — a newer, and perhaps less common right, is sanctioned
by a modern and comparatively rapid action, while older, and
perhaps commoner, rights are protected only by old and clumsy
remedies.
However, in the present case, as is well known, a dodge
was discovered by which the action of ejectment {ejectione
firinae) could be made generally available as a means of
enabling any claimant to recover possession of land. Black-
stone has described this dodge fully and welP. You are
in possession of land of which I say that I am the true owner,
the tenant in fee simple. If this is correct I have as a general
rule a right to enter. Mark, 'as a geijeral rule' ; for there are
exceptions — the cases where the entry is 'tolled' of which
hereafter". I do in fact enter and then and there make a lease
for years to a third person, John Doe. John Doe stays on the
land until ousted by you, and then brings the action, trespass
in ejectment or, briefly, ejectment. To succeed in his action
he must prove (i) my right to enter, (2) the lease, (3) his entry
under the lease and (4) his ouster by you. When all this is
proved he recovers his term with damages. Upon this form
there is a variation. I put John Doe as tenant upon the land
and he is ousted not by you but by a fourth person, William
Stiles, Doe then has the action of ejectment against Stiles,
but there is a rule that no plaintiff shall proceed in ejectment
without notice being given to the person actually in possession
and an opportunity being given him to appear as a defendant
if he pleases. Where Doe sues Stiles, Stiles informs you of
1 Comin. III. 20I. - Post, p. 354.
V Development of Ejectment 353
the action and you, if you do not want to see the land
adjudged to Doe, defend the action in Stiles's stead. In the
end my title as against you is put in issue in the action.
Then the Court in effect says ' Here is an action in which
any title can be tried. Why not abbreviate the process by
supposing that things have been done which in fact have not
been done?' The ultimate outcome is that, bringing my
action in the name of Doe (for on the record I am merely the
'lessor of the plaintiff'), I tell of (i) a lease to Doe, (2) an entry
and (3) an ouster by Stiles, the 'casual ejector.' I then send
you a notice purporting to be signed by 'your loving friend,
William Stiles ' to the effect that he claims no interest but
advises you to defend ; and the Court will only allow you to
defend in place of Stiles the action that I bring in the name
of Doe if you will agree to confess at the trial the lease, enijy
and ouster and leave the trial to go upon the merits of the
title only.
The development of this action is a long story and about
such a matter it is hard to fix any dates — one can not tell the
exact moment at which a proceeding becomes fictitious — but
I believe we may say that during the Tudor reigns the action
of ejectment became the regular mode of recovering the
possession of land. A few improvements remained to be
invented under the Stuarts, and the perfection of the action is
attributed to the Lord Chief Justice RoUe of the Upper Bench
during the Commonwealth ; but already in the day of James I
Coke expressed his deep regret that the assizes and real
actions were going out of use. That is in the Preface to
8 Rep., in which book Coke reports two assizes of Novel
Disseisin, one writ of dower and a formedon in the remainder.
Blackstone still says that 'the plaintiff ought to be some real
person, and not merely an ideal fictitious one who hath no
existence, as is frequently though unwarrantably practisedV
It is worth while to notice the form taken by the title of
the action. The action which would to-day be known as
Atkyjis v. Horde was entitled Doe on the demise of Atkyns v.
Horde or, briefly. Doe dem. Atkyns v. Horde, Atkyns appearing
as the ' lessor of the plaintiff.'
'•■ Co/nut. III. 203.
M. E. 23
354 Forms of Action Lect.
The real actions never went quite out of use until they
were abolished by statute in 1833 and a few were brought in
the nineteenth century. There were to the last certain cases
— possible rather than probable — in which a man was entitled
to the possession of land but could not bring an action of
ejectment for it. The basis of the action of ejectment was
the right of the 'lessor of the plaintiff' to enter upon the land.
The action presupposes that the plaintiff has not merely a
better right than the defendant but a right to enter on the
defendant and it was possible that a man had the former and
not the latter.
To understand these exceptional cases we must go back to
the strict possessory protection of seisin to the days when, at
all costs, force was forbidden. An ejector must be re-ejected
at once or never, in Bracton's time, iyifra qnatuor dies. The
Roman owner turned out by armed force may only repossess
himself by armed force there and then — non ex intervallo sed
ex continenti — otherwise he must have recourse to the interdict
wide vi^. In the later middle ages however this strict pos-
sessory protection was gradually relaxed in favour of a
doctrine that the man with the better right (the true owner)
generally has a right to enter. The older rule becomes a
string of exceptions to the newer rule. Certain events are
said to ' toll ' {i.e. to take away) the entry of the true owner —
to leave him with a right only to bring an action, a writ of
entry. The story is a very difficult one to explain here and
one which is hardly for beginners. For example it may how-
ever be said that (i) a descent cast to an heir tolls entry and
(2) a discontinuance (in particular, a tortious feoffment in fee
simple) turns a right of entry into a right of action. So, then,
to the end there were some exceptions to what had become
the general rule that title to land could be made good in
Ejectment,
I have said 'to the end,' that is to say until 1833. As we
have seen* the action of ejectment, with all its fictions, was
spared from the wholesale abolition of real and mixed
actions made by the Real Property Limitation Act of 1833,
and it was reformed by the Common Law Procedure Act of
1 Dig. 43, 16, 3, 9, 2 ji„te^ p. 301.
V The Personal Actions 355
1852^ The fictitious procedure was abolished, the real claimant
was to sue in his own name, John Doe disappeared. The
action thus remodelled was in use until 1875. Since that
time we have had in the old sense no forms of action — an
action for the recovery of land, an action, i.e. to obtain posses-
sion of land, can be brought by any person entitled to possession,
no matter the nature of his title, be it freehold, leasehold,
copyhold.
Let us recall the accepted definition of the words ' real,'
* personal,' and ' mixed ' as applied to actions ; meaning, that
is to say, actions of which the result is the recovery of the
thing or of damages or of both, respectively : and let us
examine in somewhat greater detail into the personal actions.
We may say that they were nine in number, (i) Replevin,
(2) Detinue, (3) Debt, (4) Account, (5) Covenant, (6) Trespass,
(7) Case, (8) Trover, and (9) Assumpsit.
Replevm we may quickly put aside, its importance in the
middle ages was very great, but it was not capable of much
development. It is an action founded upon a wrongful dis-
traint— the distrainee offers security that he will contest the
distrainor's rights in court, and thereupon the distrainor is
bound to surrender the goods — usually cattle. If he does not
do so the sheriff is to raise the posse coviitatiis and retake
them. An action beginning thus with a demand for replevin
{i.e. that the goods be ' repledged ' pending action) becomes
the normal mode of trying the rightfulness of distraint, and
such actions are of very common occurrence in the middle ages.
A procedure for securing the delivery of goods by way of
replevin still exists — the registrar of the County Court playing
the old part of the sheriff. A io-v^ instances of replevin used
to recover goods though not taken by way of distress are
known. These occur late in the day, and arc not important
in relation to general theory.
Detinue'^. This is a very old action. The defendant is
charged with an unjust detainer (not, be it noted, an unjust
taking) — injiiste detiiiet. This action looks very like a real
action. The writ originating it bears a close similarity with
^ 15 and 16 Vic. c. 76, sec. 168 fol.
* See also ante, p. 342.
35^ Forms of Action Lect.
the writ of right {praecipe in capite), but in the first place the
mesne process is not in rem, and in the second (and this is very-
important) the defendant when worsted is always allowed the
option of surrendering the goods or paying assessed damages.
The reason of this may perhaps be found partly in the perish-
able character of medieval moveables, and the consequent
feeling that the court could not accept the task of restoring
them to their owners, and partly in the idea that all things
had a 'legal price' which, if the plaintiff gets, is enough
for him.
This option leads Bracton to say that there is no real
action for chattels, and this sentence is the starting-point of
the fashion which teaches us to say that goods and chattels
are not * real ' but ' personal ' property.
Behind all this probably lies the time when the doctrine is
current that mohilia non habcnt sequelam, which doctrine,
though never in the mouth of English lawyers, runs through
French law down to modern times. If I let my goods go out
of my possession with my will and consent I am to have no
action against any third hand — a bailee of my bailee, or even
a taker from my bailee. When I put my trust in the promise
of my bailee I have that promise in exchange for my owner-
ship, as the German proverb has it, ' where one has put his
trust there must he seek it again.' But the English law never
reached a full conformity with this theory. Modern English
law is, on the other hand, highly favourable to owners of
chattels. Subject to the ancient exception about sales in
market overt, and to modern statutory exceptions (now
embodied in the Factors Act, 1889, and the Sale of Goods
Act, 1893), ownership is never lost by acts of others than the
owner. But this is clearly not the starting-point — of old the
property in moveables is not so intense as property in land ;
and archaic law finds difficulty in giving two rights in the
one thing, one to the owner and another to his bailee. At
any rate, however this may be, the terminology became
fixed — there is no ' real ' action for moveables, and therefore
chattels are not * real property.'
Here we must note the great defect of the action for
Detinue — a defect which it shares with its sister Debt —
V Detinue, Debt, Account 357
the defendant may wage and make his law, in other words,
may resort to the compurgatory oath. Attempts have
been made to rationalize and explain this fact. It has been
said that debt and detinue were matters more particularly
within the knowledge of the parties, and so on, but the simple
explanation is that detinue and debt were older than trial by
jury^ But wager of law was abolished in 1833 by 3 and
4 Will. IV, c. 42, sec. 13.
Debt"^. An action for a fixed sum of money due for any
reason, and own sister to Detinue. Here also we have a
praecipe quod reddat. Praecipe qiiod reddat (i) terrain,
(2) catalla, (3) pecunia are the writs of right (for land), of
detinue, and of debt respectively.
Its first and chief use was for the recovery of money lent
— a sense in which the word ' recovery ' is still used. The
difference between comniodatiun and inuUmm — the loan to be
returned and the loan to be repaid — was hardly seen. It is
hardly seen to-day by the vulgar. ' My money at the bank,'
is a phrase in common use. Another use of the action of
debt was for the recovery of the price upon a sale, and
another the recovery of rent due. There were other causae
debendi, and gradually the progress towards generalization
got to be expressed in the phrase that debt would lie for
a fixed sum of money if there were a quid pro quo or, later, if
there were ' consideration.' Thus Debt, originally conceived
as recuperatory, like Detinue, becomes capable of being used
for the enforcement of contracts of sorts. One limitation,
however, remained — the untranscendible limit — the claim
must be for a fixed sum. Debt can not be used to obtain
compensation for breach of contract. And further, debt can
always be met by wager of law, which becomes more and
more absurd. It is never forgotten that the action of debt is
not necessarily based on contract — it serves for the recovery
of statutory penalties, of forfeitures under bye-laws, of amerce-
ments, and of monies adjudged by a court to be due.
Account. The action of Account is another praecipe,
originally granted against manorial bailiffs. Praecipe quod
^ They appear in very early registers.
^ See also ante, pp. 332 and 342.
358 ^ Forms of Action Lect. V
reddat compotum. Auditors were appointed to supervise the
account. At a later stage it was extended to some other
classes, thus it could be used between partners, but partner-
ship is uncommon and unimportant in the England of the
middle ages. A few modern instances of its use are recorded,
but the common law action of account remains at a low
level of development because of the fact that it was in practice
superseded by the equitable jurisdiction of the Chancellor, who
in the Bill for account had a more modern remedy operating
under a more favourable and convenient procedure.
Covenant. This action is also an old one. Its writ directs
quod conventio teneatur. The earliest use of the action is for
the protection of the termor ; at one time it is the lessee's
only remedy. It early sends off a branch which is reckoned
a real action because land is recovered', in other cases the
action results in money being obtained. It appears for
a time as if covenant might be of general use wherever there
is an agreement {conventio'), might become, in fact, a general
action for breach of contract ; but the practice of the thirteenth
century decides that there must be a sealed writing. A sacra-
mental importance was attached to the use of the seal — collatio
sigilli — and it was finally adopted as the only acceptable
evidence of a covenant. Thus we come to the English formal
contract, the Covenant under Seal. One curious limitation
appears, and is maintained until the seventeenth century ;
Covenant can not be brought for the recovery of a debt,
though attested under seal. This action remains useful but
in its own narrow sphere.
I This action of Covenant Real was abolished in 1833. See/>os/, p. 371.
LECTURE VI.
Trespass'^. All the other personal actions branch out from
one, namely Trespass. Trespass appears circ. 1250 as a means
of charging a defendant with violence but no felony. The
writ, as we have seen, contains the words vi et armis contra
paceni, the procedure is enforced by a threat of outlawry,
imprisonment is resorted to by way of mesne process, and
the vanquished defendant is punished for his offence. He
is not merely in misericordia, he is liable to a capias pro fine.
There is a trifurcation, the writ varying according as the
violence is done (i) to land, (2) to the body, or (3) to chattels.
Speaking of trespass to land let us once more remember how
trespass quare clansnm fregit sends out the action for eject-
ment as a branch.
Trespass to the body (assaults and batteries) covered the
whole ground of personal injury, and no great development
was possible here. Trespass to goods, trespass de bonis
asportatis is an action which results in damages, never return
of the goods, for carrying goods off from the plaintiff's
possession — and therefore the bailee can bring if-'.
I have already said that the writ-making power wielded
by the king and his Chancellor was gradually curbed by
our parliamentary constitution, and in Edward I's day it has
become necessary to tell the Chancery that it is not to be too
pedantic, but may make variations in the old formulas when
a new case falls under an old rule. Some use was made of this
liberty, but slowly and cautiously ; it had not been intended
that the Chancellor should legislate. Thus we find one
1 See also ante, pp. 342 to 344 and 347 to 355.
"^ On this subject see Holmes, The Common Law, sub tit. Possession and
Bailment.
360 Forms of Action Lect.
new writ of entry devised which is distinctly ascribed to the
freedom of action left to the Chancery by the Statute of
Westminster II, c. 24 — it is the writ of entry in consiniili casit^.
But the most important use made of this liberty consisted in
some extensions of the action of trespass. Gradually during
Edward Ill's reign we find a few writs occurring which in form
are extremely like writs of trespass — and they are actually
called writs of trespass — but the wrong complained of does
not always consist of a direct application of unlawful physical
force to the body, lands, or goods of the plaintiff; sometimes
the words vi et arniis do not appear. Sometimes there is no
mention of the king's peace. Still they are spoken of as writs
of trespass, they appear in the Chancery Register as writs of
trespass, mixed up with the writs which charge the defendant
with violent assaults and asportations. The plaintiff is said to
bring an action upon his case, or upon the special case, and
gradually it becomes apparent that really a new and a very
elastic form of action has thus been created. I think that
lawyers were becoming conscious of this about the end of
the fourteenth century. Certain procedural differences have
made their appearance — when there is vi et armis in the writ,
then the defendant if he will not appear may be taken by
capias ad respondendum or may be outlawed — this can not be if
there is no talk of force and arms or the king's peace. Thus
Case falls apart from Trespass — during the fifteenth century
the line between them becomes always better marked. In
1503 (19 Hen. VII, c. 9) a statute takes note of the distinction ;
the process of capias is given in ' actions upon the case.'
Under Henry VIII Fitzherbert in his Abridgment and his
Natura Breviiim treats of the ' Action sur la Case ' as something
different from the action of trespass — each has its precedents.
The title of Case covers very miscellaneous wrongs — specially
^ The writ of entry called ad commitnem legem lay where the flaw in the
tenant's title originated in an alienation by a doweress or by a tenant by the
curtesy, or for life or in tail, in excess of her or his powers {e.g. in fee) and lay
only where the doweress etc. was dead. The Statute of Gloucester c. 7 gave the
remainderman an action by writ of entry, called in casu proviso, during the life of
the alienor but only in case of alienation by a doweress. After the Statute of
Westminster II the writ of entry in consiniili casu was given during the life of
the alienor to the remainderman in the other cases. F.N.B. 205, 206, 207.
VI Trespass on the Case 361
we may notice slander and libel (for which, however, there are
but few precedents during the middle ages, since bad words
are dealt with by the local courts, and defamation by the
ecclesiastical courts), also damage caused by negligence, also
deceit.
Case becomes a sort of general residuary action ; much,
particularly, of the modern law of negligence developed
within it. Sometimes it is difficult to mark off case from
trespass. The importance of the somewhat shadowy line
between them was originally due to the fact that where vis
and arma were not alleged there was no imprisonment in
mesne process, nor was the defeated defendant liable to the
judgment quod capiatur pro fine.
The judgment quod capiatitr pro fine was abolished, formally,
in 1694 (5 and 6 W. and M. c. 12), but had long before this
been a mere form. The act recited that ' whereas in actions
of trespass, ejectment, assault, and false imprisonment upon
judgment entered against the defendant the courts do {ex
oficio) issue out process against such defendant for a fine to
the Crown, for a breach of the peace thereby committed,
which is not ascertained, but is usually compounded for
a small sum by some officer of the court, but never estreated
into the Exchequer, which officers do very often outlaw the
defendants for the same to their very great damage,' and the
act proceeded to prohibit the issue of the writ of capias pro
fine and to substitute a fixed payment of six shillings and
eightpence to be paid in the first place by the plaintiff on
signing judgment but to be recovered by him as costs from
the defendant.
Greater uniformity was introduced, partly by statute and
partly by fiction, but still the distinction had to be observed.
The plaintiff must sue either in case or in trespass, and upon
the accuracy of his claim depended the success of his action.
The well-known case of Scott v. SJiepJierd (2 W. Bl. 892 and
I Sm. L.C.) turns upon this distinction, and is worth reading
as illustrating the narrowness of the margin between the two.
Even as late as 1890 parties in a case of wounding by a
glancing shot fired from the defendant's gun are still arguing
as to the appropriateness of trespass or case, the plaintiff
362 Forms of Action Lect.
contending", though without success, that in trespass negligence
is immaterial and the defendant is liable for inevitable accidents
In 1875 Lord Bramwell (then Bramvvell B.), in the case of
Holmes v. Mather'\ had explained the distinction thus : * If
the act that does the injury is an act of direct force, vi et
armis, trespass is the proper remedy (if there is any remedy),
where the act is wrongful either as being wilful or as being
the result of negligence. Where the act is not wrongful for
either of these reasons no action is maintainable, though
trespass would be the proper form of action if it were
wrongful'
Sub-forms of Case become marked off, e.g. Case for negli-
gence, for deceit, for words (slander and libel) ; but two great
branches were thrown out which gain an independent life,
and are generally important, viz. Assumpsit and Trover.
Assumpsit. The most curious offshoot of Case is Assump-
sit and the great interest of this action lies in the fact that
it becomes the general form by which contracts not under
seal can be enforced by way of action for damages. Under
the old law the contracts are formal, or 'real,' the form required
being the instrument under seal, the bond or covenant, and
the ' real ' contracts — the word ' real ' being used in the sense
of general jurisprudence — are protected by Debt-Detinue
without it being seen that contract is the basis. Gradually
however within the delictual action of Case various precedents
collect in which the allegation is made that the defendant had
undertaken to do something and then hurt the plaintiff either
in his person or in his goods by doing it badly — by misfeas-
ance.
Further an important element in this progress is the idea
of breach of contract as being deceit — the plaintiff suffers
detriment by relying on the promise of the defendant. This
point is brought out by Ames in the Harvard Law Review^
in two masterly articles which should be read at length.
The having undertaken {assumpsit) to do something,
makes its appearance as part of the cause of action in
i Stanley v. Powell, 1891, i (^. \i. 86.
2 L.R. 10 Ex. ?6i.
* 2 //. L. A'., pp. I and 53.
VI Asstunpsit 363
various writs upon the case. Thus we find an early group
of cases, from Edward Ill's reign, in which the plaintiff
seeks to recover compensation for some damage done to his
person or goods by the active misconduct of the defendant,
but still the defendant can not be charged with a breach of
the peace, as the plaintiff has put his person or his goods into
the defendant's care. The defendant, for example, is a surgeon,
and has unskilfully treated the plaintiff or his animals so
that he or they have suffered some physical harm. In such
cases we find an assumpsit alleged. It is necessary to allege
that the defendant undertook the cure — had it not been so,
according to the notions of the time, it might well have been
urged that the harm was occasioned by the plaintiff's own folly
in going to an inexpert doctor. A little later, in the fifteenth
century, we have actions against bailees for negligence in the
custody of goods intrusted to them, and here also it was
necessary to allege an assumpsit. Again, there is another class
of cases in which an undertaking is alleged — a seller has sold
goods warranting them sound, and they have turned out
unsound ; the cause of action is regarded not as breach of
contract, but as deceit. Thus in divers directions the law was
finding materials for a generalisation, namely, that breach of
an undertaking, an assumpsit, for which there was valuable
consideration was a cause of action.
Gradually the line between mis-feasance and non-feasance
was transcended, and gradually lawyers awoke to the fact that
by extending an action of tort they had in effect created a
new action by which parol contracts could be enforced. It is,
I think, about the beginning of the sixteenth century that
they begin to regard Assumpsit as a different form from Case,
a form with precedents of its own and rules of its own. Then
begins a new struggle to make Assumpsit do the work of Debt.
Plaintiffs wish for this result because they desire to avoid that
wager of law which is allowed in Debt, and defendants may
fairly argue that according to the law of the land they are en-
titled to this ancient mode of proof Professor Ames's article
gives the stages of this struggle. Through the sixteenth
century, an actual express agreement alone gives rise to
Assumpsit, and therefore if Assumpsit is to be used to enforce
364 Forms of Action Lect.
a debt, for example for the price of goods sold and delivered, a
new promise — a promise to pay that debt — must be alleged
and proved. However, in 1602, S lade" sense (4 Rep. 92 b) decides
that Assumpsit may be brought where Debt would He, and
thenceforth Assumpsit supplants Debt as a means for recover-
ing liquidated sums. In that case such a new promise had
been alleged and the jury by a special verdict had found the
bargain and sale to be proved but that ' there was no promise
or taking upon him, besides the bargain aforesaid^' Upon
this finding the case was argued in the King's Bench and the
action in Assumpsit was held to lie, the Court resolving that
' Every contract executory imports in itself an assumpsit, for
when one agrees to pay money or to deliver anything, there-
by he assumes or promises to pay or deliver it^.' Thenceforth
the proof of the new promise becomes unnecessary. This
form of Assumpsit takes the name of Indebitatus Assumpsit.
Some seven years later we have this action extended from
cases of express executory contract to cases where the original
bargain was an implied contract, in the sense that a contract
is really to be implied from the facts of the case, for example,
cases of actions for Quantuin meruit.
Lastly, at some date between 1673 and 1705, Indebitatus
Assumpsit is extended to actions upon Quasi-Contracts in
which the element of contract is purely fictitious.
As we have already seen, this action of Assumpsit, which
at least seems to us as of delictual origin, becomes the general
mode of enforcing contracts even when a sum certain has to
be recovered, and thus Assumpsit becomes a rival to and a
substitute for Debt in which latter action the defendant may
still wage his law. For some reason Debt was brought as
late as 1824 in the case oi King v. Williams, 2 B. and C. 538,
when the defendant, although the court refused to assist him
even to the extent of telling him how many helpers he
needed, produced eleven helpers {jitrare decima manu) and
the plaintiff withdrew. Wager of law was however not
formally abolished until 1833^
1 Rep. IV. 92 a. - Rep. IV. at p. 94 a.
8 3 and 4 Will. IV, c 42, sec. 13.
VI Trover 365
Trover. One other great branch is thrown out by Case,
namely Trover. For the history of this action see Ames's
articles in the Harvard Laio Review^. This also is an action
for damages based upon a fictitious loss and finding and
a subsequent conversion to the use of the defendant. Here
there is no trespass, the defendant may be a perfectly
innocent purchaser from the original wrongdoer ; and there is
no ' recuperation ' — the gist of the action is the conversion.
I believe that Trover begins to appear about the middle
of the sixteenth century. Gradually it begins to supplant
Detinue, in which there is wager of law, and it becomes the
normal mode of trying the title to moveable goods. The
plaintiff charges that he was possessed of goods, that he lost
them, that the defendant found them and converted them to
his use. The court will not permit the defendant to dispute
the loss and finding, but obliges him to answer the charge of
conversion.
Since the provisions of sec. 78 of the Common Law Proce-
dure Act of 1854 the old option, between paying the value of
the chattel and restoring it to the successful plaintiff, is not
necessarily left to the defendant, the court may order the
restitution of the chattel. This statute has removed the
original basis for the use of the terms by which we call lands
' real and chattels ' personal ' property ; but the terms were
adopted long ago and are likely to endure. The yet abiding
distinction between lands and chattels lies in the two systems
of intestate succession applicable to them.
Thus, by the beginning of the eighteenth century, Trespass
and the various branches that it had thrown out, had come to
be the only forms of action that were in very common use.
Trespass in ejectment, or ejectment, served the purpose of
most of the real actions, though, as already said, there were
occasions on which the latter had to be used. Assumpsit
covered the old province of Debt, and a much larger province
as well. Trover covered, and more than covered, the old
province of Detinue. Trespass vi et armis still served for
all cases in which the defendant had been guilty of directly
applying unlawful force to the plaintiff's body, goods or
^ II H.L.R., pp. 277 and 374.
366 Forms of Action Lect. VI
chattels. Case covered the miscellaneous mass of other torts.
Of the old actions Replevin maintained itself as the proper
action against a distrainor. Covenant remained in use for the
enforcement of promises under seal. The province of Account
was gradually annexed by the Court of Chancery, and brought
within the sphere of its equitable jurisdiction ; and the use
of the common law writs of dower, too, was to a great extent
superseded by the relief given to the doweress in Courts of
Equity, where new and valuable rights were given to her and
to her personal representatives against the heir and his repre-
sentatives which could not have been enforced by any process
of the common law\ After 1833, when wager of law was
abolished, Debt and Detinue were occasionally brought ; but
there was no longer much need for them, their place having
been well filled by Assumpsit and Trover.
^ See e.g. Baniford v. Baiuford, 5 Hare 203, and Williams v. Thomas, 1909,
t Ch. 713, by Cozens- Haidy, M.R., at p. 720.
LECTURE VII.
Before parting with the forms of action a little should be
said about attempts to classify them. Let me first remind
you of a few sentences of Justinian's Institutes which have had
a very important effect; oDinmm actiomiin...suviina divisio
in duo genej-a dediicitur : ant cnim in rem sunt ant in personam,
Lib. IV, 6. § i\ In a later chapter Justinian recognizes a class
of actions which are mixed, i.e. partly real, partly personal,
IV. 6. 20.
Then there is another and a cross division of actions, some
are rei persequendae causa comparatae, others are poenae conse-
quendae causa comparatae, others belong to both these classes,
IV. 6. 16.
Along with this we must take the classification of the
obligations which are enforced by actiones in personam, lli. 13 ;
these are ex contractu ant quasi ex contractu, ex maleficio aut
quasi ex maleficio.
Now these famous distinctions have at various times
attracted English lawyers, and attempts were made to impose
them upon the English materials, attempts which have never
been very successful. Such phrases as criminal and civil, real
and personal, possessory and proprietary, contractual and
delictual are apparent already in Glanvill and prominent in
^ 'The leading division of all actions whatsoever, whether tried before a judge
or a referee, is into two kinds, real and personal ; that is to say the defendant is
either under a contractual or delictual obligation to the plaintiff in which case the
action is personal, and the plaintiff's contention is that the defendant ought to
convey something to, or do something for him, or of a similar nature ; or else,
though there is no legal obligation between the parties, the plaintiff asserts
a ground of action against someone else relating to some thing, in which case the
action is real. Thus a man may be in possession of some corporeal thing, in
which Titius claims a right of property and which the possessor affirms belongs to
him; here if Titius sues for its recovery the action is real.' Moyle, \\. p. 176,
translating Institutes iv. 6. i.
368 Forms of Action Lect.
Bracton's work, who makes use of them on the whole with
great intelHgence. These divisions of actions never, however,
well fit the native stuff; they always cut across the form of
the writs. A good example of this difficulty is seen in
Trespass. It comes of penal stock, the defendant is liable to
imprisonment, in the middle ages it covers all crimes short of
felony — yet it is the ordinary civil action to recover damages
for stepping on the land of another. Again, as we have seen,
we have the writs of Entry standing between the indubitably
proprietary and the indubitably possessory actions — this dis-
tinction is long regarded in England as a matter of degree,
some writs are more ' in the right ' than others.
Bracton says, however, that there is no action in rem for
moveable goods (f. 102b) — 'At first sight it may appear that
the action should be both real as well as personal, tarn m
rem quam in personam, since a particular thing is claimed,
and the possessor is bound to give it up, but in truth it will
be merely iti personam, for he from whom the thing is claimed
is not absolutely bound to restore the thing, but is bound in
the disjunctive to restore the thing or its price, and by
merely paying he is discharged, whether the thing be forth-
coming or no. And therefore any one who claims a move-
able for whatever cause, be it as having been carried off,
or as having been lent, is bound to state its price, and count
thus " I demand that such an one restore to me such a thing,
of such a price," or " I complain that such an one detains
from me, or has unjustly robbed me of such a thing of such
a price," and if the price be not named the vindicatio of a
moveable thing is bad.' The chattels of the middle ages were,
I take it, both of a perishable kind and of a kind the value of
which could be easily appraised ; if the plaintiff got the
precinm of his ox he got what would do as well as his ox.
However, this remark which made the reality or personality
of the action depend not on the nature of the right asserted by
the plaintiff but on the result of the judgment, has had results
which as I think are much to be regretted. In the first place
it is the origin of all our talk about real and personal property.
The opinion comes to prevail that the action is * real ' if
a favourable judgment gives possession of lands, tenements
VII Real and Personal 369
and hereditaments, ' personal ' if damages are awarded and
' mixed ' if both lands and damages are recovered. Gradually
the terms 'things real' and 'things personal' begin to make
their appearance and to supplant the old, and surely far better
terms terrae et tenanenta on the one hand, bona et catalla on
the other. The law of intestate succession is in time made
the test of realness and personalness ; we are deprived of the
legitimate use of a valuable pair of terms, because they have
been put to an illegitimate use, and we have to talk about a
term of years as a chattel real, but personal property. That is
not all — having said that every action in which a chattel or its
value is claimed is personal, are we not compelled to say that
every such action is either founded on contract or founded on
tort? Yes, that conclusion has been drawn, it is expressly
drawn by Blackstone. The result of this has been to extend
our notion of tort far beyond the Roman notion oi maleficmm.
A chattel is stolen from me, and you in good faith buy it from
the thief I demand it from you, you require that I should
prove my title in an action ; — my action is personal, and since
it obviously is not founded on contract, it must be founded on
tort. What is the tort ? I think we are obliged to say that
the mere possessing of a moveable thing by one who is not
entitled to possess it is a tort done to the true owner. It
would surely have been far more convenient if we could have
said that the owner's action is iti rem, that he relies merely on
the right of ownership, and does not complain that the
possessor, who came by the thing quite honestly, has all along
been doing him a wrong. The foundation for all this was
abolished by the Common Law Procedure Act of 1854
which enabled a judge to order execution to issue for the
return of a chattel detained without giving the defendant the
option of paying the value assessed. (The effect of that
section is now represented in the existing rules of court.)
But I think we must still say that an action whereby an
owner claims his chattel is an action founded on tort.
The attempt to distribute our personal forms under the
two heads of contract and tort was never very successful or
very important. In late days it was usual to put under the
heading of Contract the following: — Debt, Covenant, Account,
M. E. 24
370 Forms of Action Lect.
and Assumpsit ; under the head of Tort — Trespass, Trover,
Case, Replevin. Some writers put Detinue on one side of
the line and some on the other. The truth was that (i) in
substance Detinue might be an action founded on a contract
or might be an action ex maleficio, or again might be an
action founded on proprietary right which it would have been
well could we have called real, while (2) in form Detinue was
almost indistinguishable from Debt and both were closely-
allied to the writ of right ; — the law of the twelfth century to
which these forms referred us saw little distinction between
' Give me up that piece of land for it is mine,' ' Give me up
that ox for it is mine,' ' Give me up those ;^io which are mine
because I lent them to you.' In each case the claimant
demands {petit) what is or ought to be his — the distinction
between 'is' and 'ought to be' being hardly discerned. In
very old cases we find a creditor called a demandant not
a plaintiff, he is petcns not qucrrns. We have no longer to
classify the forms, for they are gone ; but I think that we still
are obliged to say that every action for a chattel is founded on
tort if it be not founded on contract, and thus to make our
conception of tort considerably wider than our neighbour's
notion of a delict.
Then as to land there have been difficulties. We have
already noticed how Bracton says that there is no actio in rem
for moveable goods. But he knew too much about Roman law
to say that an action is in rem merely because the result of it is
that the claimant will thereby obtain possession of land. Thus
he says that the Novel Disseisin is a personal action founded
on tort, it is in personam though the judgment will restore the
plaintiff to the land. The plaintiff is not relying on a real right,
but is merely complaining of a tort. His test of the 'reality' of
an action is much rather the mesne than the final process. By
mesne process is meant the procedure against a contumacious
defendant for compelling him to plead. If the mesne process
is merely against the person, by attacking him or seizing his
body, then the action is in personam. If the procedure is
against the thing in dispute the action is in rem. In the
Novel Disseisin you proceed against the person ; in a writ of
right you proceed against the thing — the land is seized into
VII Real and Mixed Actions 371
the king's hand, and if the defendant, or rather tenant, remains
contumacious, it is adjudged to the demandant. Gradually
however as the influence of Roman law becomes weaker a
different test is adopted, an action is real if it gives the person
the very thing that he wants. Now the action of ejectment did
this from Henry VII's day onwards but it did not receive the
name of a real action, or of a mixed action for a very long
while — it had been developed out of a purely personal action,
the action for trespass, and if you will look at Blackstone's
definitions you will see that they are carefully framed so as
to keep ejectment out of the 'real' class\ I am not certain
that it ever became correct to speak of ejectment as either
real or mixed until the statute of 1833 abolished all real
and mixed actions ' except ' ejectment and some others, thus
speaking as though ejectment were either real or mixed. The
truth is that this classification never fitted our law very well.
One of the actions abolished in 1833 as 'real or mixed' was an
action of covenant real, i.e. an action founded on a covenant to
convey or let land — an action in which a plaintiff could obtain
judgment for the land, a judgment not for damages but qiiod
conventio teneattir. To call an action based on covenant,
or contractual right, a real or mixed action must of course
seem very strange to students of 'general jurisprudence'; but
it was the logical result of making the distinction turn on the
answer to the question whether the plaintiff demands land or
damages or both.
I do not see why at the present day under the Judicature
Act an action for the recovery of land wherein the plaintiff
relies merely on his proprietary right should not be called
'real'; but historically it is doubtless the representative of the
action of ejectment and I see no reason for trying to reintro-
duce a distinction which has never fitted our law very well.
The abiding influence of the history of ejectment is, I think,
this, that if I am possessing land which you have a better right
to possess I am incurring a liability to you for damages. You
will read in Blackstone (ill. 205) of the action for mesne profits.
By means 01 piling fiction on fiction our courts came to the
doctrine that when a plaintiff had recovered the land in an
^ Coinm. ni. li^.
24—2
372 Forms of Action Lect,
action of ejectment he could then proceed to treat the
defendant's possession as one long continued trespass, and
sue him in an action for mesne profits in which he could
recover not only compensation for any damage done to the
land, but compensation for loss of enjoyment. This doctrine
still holds good, though its fictitious supports have been
kicked away, and though now-a-days one can get the land
and the damages in one and the same action. But the result
is that however honest the wrongful possessor may be and
however plausible may be the title under which he is pos-
sessing, he is doing a continuous wrong to him who has a
better right to be in possession and will have to pay damages
for it. Some modern judges have regretted the severity of
our law against bona fide possessors holding under faulty
titles, but it is the natural and abiding result of the disuse and
abolition of the old real actions.
On the whole the lesson of this part of our legal history
should be that it is dangerous to play with foreign terms
unless we know very well what we are about.
It is worth while to consider for a moment why I am
troubling you with these matters which might be called
details of mere obsolete procedure. I must refer you again
to Sir Henry Maine's good saying, 'Substantive law is secreted
in the interstices of procedure.' So important in the past was
this fact that the great text-books take the form of treatises
on procedure. Fitzherbert's book is called De Natura Bre-
vium — and even at a much later date, indeed until quite
recently, text-books take the form of discussions as to when
a man can bring this or that action — trespass, trover, detinue,
or assumpsit. This dependence of right upon remedy it is
that has given English law that close texture to which it
owes its continuous existence despite the temptations of
Romanism. As an illustration of the importance of this
past history in forming the law of the present consider the
question — why do we talk to-day of ' real ' and ' personal '
property ? Any answer to this question must speak to us of
obsolete forms of action.
And now to go back. We have seen a gradual process of
formal decay which set in soon after the death of Edward I in
vn Fictions 373
1307, and together with this formal decay a vigorous but con-
torted development of substantive law brought by fiction
within the medieval forms. This is a long process ; we
may say that it even extends from 1307 to 1875. I'^ this
development there are two stages.
(i) The stage of evasory fiction, the last days of which are
well described by Blackstone. During this stage a few
relatively modern actions are made to do substantially all
the duty of the courts — these actions are Trespass and its
progeny. Again steps were dropped out of the procedure
and merely replaced by the supposition that they had been
taken. Thus the original writ was omitted, unless Error be
brought upon the record, in which case, the record must be
duly made up.
This stage is complicated by a process which slowly makes
the courts of King's Bench and Exchequer competent courts
for most practicable actions. The original distribution of
jurisdiction between the courts was as follows. Comvuinia
placita — ordinary civil suits between subject and subject —
belong to the Common Bench or Court of Common Pleas;
Placita coronae, including, be it noticed, trespass vi et armis,
to the King's Bench. The Court of Exchequer, as the
financial court, has the duty of getting in the king's debts,
but this includes getting in debts due to the king's debtor.
The King's Bench and Exchequer have already therefore
a footing in the field of civil actions and this footing they
proceed to improve.
The King's Bench adopted the following fiction. Suppose
for example that an action of debt is to be begun. First an
action of trespass is begun and the defendant is arrested. He
is thus in the custody of the marshal of the King's Bench and
the court has jurisdiction in cases against its prisoners. Then
follows a declaration in Debt by the plaintiff against this
prisoner of the King's Bench.
The Exchequer fiction for the same purpose was known as
a quo minus. The plaintiff pretends to be the king's debtor and
alleges that he is being kept out of money due to him by the
defendant whereby the less {quo minus) he is able to pay his
debt to the kine.
374 Forms of Action Lect.
If we look for the motive which induced this steaHng of
business we may find it in the fact that the staff of the courts
and to some extent the judges are paid by fees derived from
the Htigants. This result was also partly due to the fact that
the Serjeants had the exclusive right of audience in the court
of Common Bench. The Serjeants were created by royal
writ — a man was appointed to the 'state and degree' of
serjeant-at-law, an honour entailing, at least until the days of
George III, an expensive banquet upon his creation. He
became a member of the ' Order of the Coif.' Until the
passing of the Judicature Act by custom all judges appointed
must first be admitted serjeants-at-law, a custom which is
believed to have had its origin in the terms of an Edwardian
statute^ After the Judicature Act they disappeared. Now
there were practitioners before the other courts, the Barristers
(originally known as 'apprentices') who were interested in
diverting business from the court in which Serjeants alone had
the right of audience to those in which they themselves could
be heard. By such means our archaic procedure is being
adapted to modern times but in an evasory and roundabout
way by means of fictions.
(2) A new stage began in 1832 with the Unification of
Process Act of that year-. So far no destruction of the forms
of action was attempted, but the original and the mesne
process are henceforward to be statutory and uniform in all
personal actions.
In the following year the statute 3 and 4 Will. IV, c. 27,
by sec. 36 abolished all the Real and Mixed actions
excepting ejectment, qiiare ii)ipcdit and the two writs of dower
(the writ of right of dower and the writ of dower ttnde nihil
habet): and in the same year the statute c. 42, sec. 13 made
Debt and Detinue practicable and gave them a new lease of
life by abolishing wager of law.
Still the forms of action remaining have to be kept apart
^ 14 EcKv. III. 16. Dealing only with Nisi Prius Commissions it says that
one of the Commissioners must be either a judge of K.B. or C.P., Chief Baron of
the E.xchequer or a Serjeant sworn. Under this a puisne Baron of the Exchequer
would not be qualified unless he were a serjeant-at-law.
- 2 and 3 Will. IV, c. 33.
VII End of the Forms of Action 375
and each must be used only within its proper precedents, —
trespass, case, assumpsit, trover, ejectment, debt and detinue.
The next great step was taken by the Common Law
Procedure Act, 1852, sec. 3. Under this statute no form of
action is to be mentioned in the writ, which is for the future
to be a simple writ of summons. But even after this act the
form of action remains of vital importance to the pleader for
each action retains its own precedents, and although the choice
of the proper form of action need no longer be made in the
choice of writ it is merely deferred until the declaration.
The last great step comes with the Judicature Acts of
1873-75, the statutes effecting the fusion of equity and law.
By these statutes and by the Rules of the Supreme Court
made thereunder a new code of civil procedure was introduced,
largely dependent for its working upon wide discretionary
powers allowed to the judges. Henceforward not only is the
writ a simple writ of summons but there are no longer any
' forms of action ' in the old sense of the phrase.
The plaintiff is to state his case, not in any formula put
into the king's mouth but in his own (or his adviser's) words
endorsed upon the writ, and his pleader is to say not upon
what form of action he relies but merely what are the facts
upon which he relies. Some differences there are in the
procedure due to differences in the nature of the action, of the
facts relied upon and of the rights to be enforced. Thus in
some cases there is and in others there is not a right to a trial
by jury, in some cases there is a right to special procedure for
judgment by default if the claim is for a liquidated sum, and
so forth. Much there is for practitioners to study in the
Judicature Acts and the Rules of the Supreme Court, but it is
no longer possible to regard any form of action as a separate
thing.
This results in an important improvement in the state-
ments of the law — for example in text-books — for the atten-
tion is freed from the complexity of conflicting and over-
lapping systems of precedents and can be directed to the real
problem of what are the rights between man and man, what
is the substantive law.
SELECT WRITS
(beginning with those relating to Land).
Praecipe in Capite.
Rex vicecomiti salutem. Praecipe X quod juste et sine
dilatione reddat A unum mesuagium cum pertinentiis in
Trumpingtone quod clamat esse jus et haereditatem suam et
tenere de nobis in capite et unde queritur quod praedictus
X ei injuste deforciat ut dicit. Et nisi fecerit, et praedictus
A fecerit te securum de clamore suo prosequendo, tunc sum-
mone eum per bonos summonitores quod sit coram justiciariis
nostris apud Westmonasterium^ [tali die] ostensurus quare
non fecerit. Et habeas ibi summonitores et hoc brevel
The King to the sheriff greeting. Command X that justly and
without delay he render to A one messuage with the appurtenances in
Trumpington which he claim.s to be his right and inheritance, and to
hold of us in chief and whereof he complains that the aforesaid X unjustly
deforceth him. And unless he will do this, and (if) the aforesaid A shall
give you security to prosecute his claim, then summon by good summoners
the afores*^ X that he be before our justices at Westminster [on such
a day] to show wherefore he hath not done it. And have there the
summoners and this writ.
Breve de recto.
Rex K (a bishop, baron or other lord of manor) salutem.
Praecipimus tibi quod sine dilatione plenum rectum teneas A
de uno mesuagio cum pertinentiis in Trumpingtone quod
" ^ i.e. In the court of Common Pleas.
2 F.N.B. 5 I. Y\iz\\&x\yQx\.'s Natura Breviiim was published in 1534. (Fitz-
herbert ob. 1538.) When quoted F.N.B. without a date, the edition of 1553 is
referred to. The translations added liere and there for the assistance of the student
are taken from the English edition of 1 794, which preserved the paging of the
edition of 1553.
Novel Disseisin 377
clamat tenere de te per Hberum servitium [unius denarii per
annum] pro omni servitio, et quod X ei deforciat. Et nisi
feceris, vicecomes de Cantabrigia faciat, ne amplius inde
clamorem audiamus pro defectu recti\
The King to K greeting. We command you that without delay you
do full right to A of one messuage with the appurtenances in Trumpington
which he claims to hold of you by free service of [so much] per annmn
for all service, of which X deforceth him. And unless you will do this,
let the sheriff of Cambridge do it that we may hear no more clamour
thereupon for want of right.
Assisa Novae Disseisinae.
Rex vicecomiti salutem. Questus est nobis A quod X
injuste et sine judicio disseisivit eum de libero tenemento suo
in Trumpingtone post [ultimum reditum domini regis de
Brittannia in Angliam] (or other period of limitation). Et
ideo tibi praecipimus quod, si praedictus A fecerit te securum
de clamore suo prosequendo, tunc facias tenementum illud
reseisiri de catallis quae in ipso capta fuerint et ipsum tene-
mentum cum catallis esse in pace usque ad primam assisam
cum justiciarii nostri ad partes illas venerint. Et interim
facias xij liberos et legales homines de visneto illo videre
tenementum illud et nomina illorum imbreviari. Et sum-
moneas eos per bonos summonitores quod sint ad primam
assisam coram prefatis justiciariis nostris, parati inde facere
recognitionem. Et pone per vadium et salvos plegios prae-
dictum X vel ballivum suum, si ipse inventus non fuerit, quod
tunc sit ibi auditurus recognitionem illam. Et habeas ibi
summonitorum nomina, plegios et hoc breve-.
The King to the sheriff greeting. A hath complained unto us that
X unjustly and without judgment hath disseised him of his freehold in
Trumpington after (the last return of our lord the king from Brittany into
England). And therefore we command you that, if the afores"^ A shall
make you secure to prosecute his claim, then cause that tenement to be
reseised and^ the chattels which were taken in it and the same tenement
with the chattels to be in peace until the first assize when our justices
^ Bracton, f. 328 a. F.N.B. 1 c.
- Bracton, f. 179 a. F.N.B. 1534, 69, where the wording has Ijecome slightly
diflerenl.
•* Quaere ' of,'
378
Select IVrits
shall come into those parts. And in the mean time you shall cause
twelve free and lawful men of that venue to view that tenement and
their names to be put into the writ. And summon them by good
summoners that they be before the justices afores'' at the assize afores'*,
ready to make recognizance thereupon. And put by gages and safe
pledges the afores'^ X or, if he shall not be found, his bailiff, that he be
then there to hear that recognizance. And have there the (names of
the) summoners, the pledges, and this writ'.
Assisa de Morte Antecessoris.
Rex vicecomiti salutem. Si A fecerit te securum de
clamore suo prosequendo tunc summoneas per bonos sum-
monitores xij liberos at legales homines de visneto de
Trumpingtone quod sint coram ^ justiciariis nostris ad primam
assi-sam cum in partes illas venerint, parati sacramento recog-
noscere si B pater, [mater, frater, soror, avunculus, amita*]
praedicti A fuit seisitus in dominico suo ut de feodo de uno
mesuagio cum pertinentiis in Trumpingtone die quo obiit, et
si obiit post [period of limitation], et si idem A ejus haeres
propinquior sit. Et interim praedictum mesuagium videant
et nomina eorum inbreviari facias. Et summone per bonos
summonitores X qui mesuagium praedictum tenet quod
tunc sit ibi auditurus illam recognitionem. Et habeas ibi
summonitores et hoc brevet
The King to the sheriff greeting. If A shall make you secure, &c.
then summon, &c. twelve free and lawful men of the neighbourhood of
Trumpington that they be before our justices at the first assize when
they shall come into those parts, ready to recognize by oath if B father
[mother, brother, sister, uncle, aunt,] of the afores*^ A was seised in his
demesne as of fee, of one messuage with the appurtenances in Trumping-
ton the day whereon he died, and if he died after [the period of limitation]
and if the same A be his next heir : and in the mean time let them view
the s<^ messuage, and cause their names to be put in the writ, and summon
by good summoners X who now holds the afores"! messuage, that he
may be there to hear that recognizance ; and have there the summoners
and this writ''.
1 F.N.B. 177 E.
- It might he ' apud Westmonasterium ' or coram dilectis et fidelilnis nostris
O. ct F. (special commissioners).
^ Beyond these ' de^rrees ' writs of ' niel ' ' bezaiel ' and ' cosinas^e ' introduced
by William Raleigh were used. For their forms see F.N.B. 220, 221.
4 Biaclon, f. 253 b. ^ F.N.B. 195 e.
Writs of Entry 2>19
Brevia de Ingressu.
Rex vicecomiti salutem. Praecipe X quod juste et sine
dilatione reddat A unum mesuagium cum pertinentiis in
Trumpingtone quod clamat esse jus et haereditatem suam et
in quod praedictus X non habuit ingressum nisi —
a. per W qui illud ei dimisit qui inde injuste et sine
judicio disseisivit eundem A [or B patrem ejusdem A
cujus haeres ipse est] post [time of limitation].
b. per W cui V illud dimisit qui inde injuste etc.,
as above.
c. post disseisinam quam T inde injuste et sine
judicio fecit B patri ejusdem A cujus haeres ipse est post
[time of limitation] et unde queritur.
d. per K quondam virum ipsius A qui illud ei
dimisit, cui ipsa in vita sua contradicere non potuit, ut
dicit.
e. per W cui K quondam vir ipsius A qui illud ei
dimisit, cui ipsa in vita sua contradicere non potuit, ut
dicit.
f. post dimissionem quam K quondam vir ipsius A,
cui ipsa in vita sua contradicere non potuit, inde fecit T
ut dicit et unde queritur.
g. per W cui praedictus A illud dimisit dum non
fuit compos mentis
Ji. per W cui praedictus A illud dimisit dum fuit
infra aetatem.
i. per W cui B pater praedicti A cujus haeres ipse
est illud dimisit ad terminum qui praeteriit.
Et nisi fecerit summone euni per bonos summonitores
quod sit coram justiciariis nostris apud Westmonasterium tali
die ostensurus quare non fecerit. Et habeas ibi nomina sum-
monitorum et hoc breve.
Note. The writs of entry given here are but a i&w out of great numbers
of writs framed to cover ahiiost every conceivable case of a flaw in the
tenant's title. Amongst the writs recorded in Fitzherbert arc (i) writs
SKper disseisinam, or as they are sometimes called writs de quibus; where
the flaw was a disseisin (of these a, b and c above are examples):
38o
Select Writs
(2) writs ad coinmunem le_s[e?n, in casu proviso and in consimili casu
(explained above, p. 360 n.) where the flaw was an alienation in excess of
powers by a doweress or a tenant by the curtesy, for life or in tail : (3) writs
cui in vita^ on alienation by a husband (examples d, e and / above) and
(4) writs ciii ante divortimn^ the same where the marriage has been
dissolved (a strangely modern sound this has) : (5) writs of Dnni jion
compos mentis (example g above) and (6) of Dum fiiit infra aetatem
(example h above) on alienation by an idiot and an infant respec-
tively : (7) writs of entry ad terminum qui praeteriit (example / above)
where the flaw is the holding over of a lease : (8) writs of intrusion,
where the flaw is similar to the wrong aimed at by the assize of Mort
d'Ancestor and (9) the writ sine assensu capituli where the flaw is an
alienation by an abbot &c. without his chapter's consent. Each of these
writs may be in either of the three forms within the 'degrees' in the per
(as a), in the per and cui (as b) and, outside the ' degrees,' by virtue of
the statute of Marlborough, in the post (as c in the above writs). Pro-
fessor Maitland has in several instances omitted a few words for the
sake of dearness.
Qiiare ejecit infra teyuiinnui^.
Rex vicecomiti salutem. Si A fecerit te securum de
clamore suo prosequendo tunc summoneas etc. X quod sit
coram justiciariis etc. ostensurus quare deforciat praefato A
unum mesuagium cum pertinentiis in Trumpingtone, quod
M ei dimisit ad terminum qui nondum praeteriit, infra quem
terminum idem M praefato X illud mesuagium vendidit,
occasione cujus venditionis idem X praefatum A de mesuagio
praedicto ejecit ut dicit, Et habeas ibi etc
Trespass qitare clausitin frcgit-.
Rex vie. sal. Si A fecerit etc. tunc pone per vadium et
salvos plegios X quod sit etc. ostensurus quare vi et armis
clausum ipsius A apud Trumpingtone fregit [et blada sua
ibidem crescentia falcavit etc. etc.] et alia enormia ei intulit
ad grave damnum ipsius A et contra pacem nostram. Et
habeas ibi nomina plegiorum et hoc breve.
^ F.N.B. 198 B. Fuit hoc breve inventum per discretum vhum Will, de
Merton. F.N.B. 1534 ed. p. 81.
2 This writ and the next one appear here without regard to their historical
order for the purpose of showing in one group the greater writs relating to the land.
Eject io Firniae 381
De ejectione fii-mae'^.
Rex vie. sal. Si A fecerit te securum etc. tunc pone etc.
X quod sit coram etc, ostensurus quare vi et armis unum
mesuagium apud Trumpingtone, quod M praefato A dimisit
ad terminum qui nondum praeteriit, intravit et ipsum a firma
sua praedicta ejecit et alia enormia ei intulit ad grave damnum
ipsius A et contra pacem nostram. Et habeas ibi etc.
De Liber tat c Probanda.
Rex vie. sal. Monstravit nobis A quod cum ipse liber
homo sit et paratus libertatem suam probare, X damans eum
nativum suum vexat eum injuste. Et ideo tibi praecipimus
quod si praedictus A fecerit te securum de libertate sua
probanda, tunc ponas loquelam illam coram justiciariis nostris
ad primam assisam cum in partes illas venerint quia hujus-
modi probatio non pertinet ad te capienda. Et interim idem
A pacem inde habere facias. Et die praedicto X quod sit
ibi loquelam suam versus praedictum A inde perfecturus si
voluerit. Et habeas ibi hoc breve.
The King to the sheriff greeting. A hath showed unto us that
whereas he is a free man and ready to prove his hberty, X claiming him
to be his nief'^ unjustly vexes him ; and therefore we command you, that
if the afores'^ A shall make you secure touching the proving of his liberty,
then put that plea before our justices at the first assizes, when they shall
come into those parts, because proof of this kind belongeth not to you to
take ; and in the mean time cause the s'^ A to have peace thereupon,
and tell the afores'^ X that he may be there, if he will, to prosecute his
plea thereof against the afores"* A. And have there this writ^.
^ For a translation of the writ of ejectment see post, p. 383.
2 nief(nativus) = villein. 3 j.-.^.B. 77 F.
382 Select Writs
Debt, Deti)iue and Account.
Rex vie. sal. Praecipe X quod juste et sine dilatione
reddat A :—
{Breve de Debito'^) centum libras quas ei debet et injuste
detinet
{Breve de Catallis catalla ad valentiam centum librarum
reddendis") quae ei injuste detinet
{Breve de Compoto^) rationabile compotum suum de tem-
pore quo fuit ballivus suus in
Trumpingtone et receptorum de-
nariorum ipsius A
ut dicit. Et nisi fecerit et praedictus A fecerit te securum
de clamore suo prosequendo, tunc summone eum per bonos
summonitores quod sit coram justiciariis nostris apud VVest-
monasterium [tali die] ostensurus quare non fecerit. Et
habeas ibi summonitores et hoc breve*.
Covenant.
Rex vie. sal. Praecipe X quod juste et sine dilatione
teneat A conventionem factam inter ipsum A et [S patrem
praedicti] X [cujus haeres ipse est,] de [uno messuagio]
et nisi fecerit &c. tunc summone &c.^
Trespass vi ct annis^.
Rex vie. sal. Si A fecerit te securum de clamore suo
prosequendo tunc pone per vadium et salvos plegios X quod
sit coram justiciariis nostris'' &c. tali die ostensurus
1 F.N.B. 119 L. -= F.N.B. (1534 ed.) 40.
3 F.N.B. 117 E.
^ Note that these writs are in the same terms as the writ of Praecipe in Capite
except for the words stating what the defendant is to deliver up to the demandant.
^ F.N.B. (1534) 66, the ending is as for debt.
*' F.N.B. 85 to 88. As an example we give the translation of the writ of
F'ectment from Fitzherbert (1794 edition). Several trespasses may be alleged
in one writ.
'' Or 'coram nobis tali die ubicumque luerimus tunc in Angliae' if the writ
be in the King's Bench.
IVrits of Trespass
o
83
(assault and battery) quare vi et arm is in ipsum A apud
Trumpingtone insultum fecit et
ipsum verberavit vulneravit et male
tractavit, ita quod de vita ejus
desperabatur
quare vi et armis in ipsum A apud
Trumpingtone insultum fecit et
ipsum vulneravit imprisonavit et
male tractavit
quare vi et armis clausum ipsius A
apud Trumpingtone fregit
quare vi et armis lapidem molarem^
ipsius A precii xl. s. apud Trumping-
tone fregit et bona et catalla sua
precii tanti cepit et asportavit
quare vi et armis unum mesuagium
apud Trumpingtone quod M prae-
fato A dimisit ad terminum qui
nondum praeteriit intravit et ipsum
A a firma sua praedicta ejecit
et alia enormia ei intulit ad grave damnum ipsius A et contra
pacem nostram. Et habeas ibi nomina plegiorum et hoc
breve
(false imprisonment)
(trespass to land)
(trespass to chattels)
(ejectment)
The writ of Ejectment.
The King to the sheriff greeting. If A shall make you secure &c.
Then put by gages and safe pledges X that he be before our justices at
Westminster on (such a day)^ to show wherefore with force and arms he
entered into one messuage in Trumpington which M demised to the
said A for a term which is not yet passed and ejected him, the said A,
from his farm aforesaid ; and other enormous things did, to the great
damage of him the said A and against our peace : and have there the
names of the pledges and this writ. (F.N.B. 220 G.)
1 A mill stone.
2 Thus for an action in the Common Pleas, but it would read 'that he be
before us on (such a day) wheresoever we shall then be in England ' if it were for
an action in the King's Bench.
384 Select JVrits
Trespass on the Case or Case.
Rex vie. sal. &c. as in Trespass ostensurus : —
quare* [here set out the matter complained of e.g. : — ]
in aqua de Plim, per quam inter Humber et Gaunt
navium et batellorum communis est transitus, ex trans-
verso aquae pilos defixit, per quod quaedam navis cum
triginta quarteriis brasii ipsius A submersa fuit, et viginti
quarteria brasii precii centum s. deperierunt. Et alia
enormia &c. as in Trespass.
The King to the sheriff &c. as in Trespass to show : —
wherefore {e.g. : — ) he fixed piles across the water of Plim along
which, between the Humber and Gaunt, there is a common passage
for ships and boats, whereby a certain ship, with thirty quarters of
malt of him the s'^ A, was sunk under water, and twenty quarters
of the malt of the price of one hundred shillings perished ; and other
wrongs &c. as in Trespass.
Trespass on the Case in Assumpsit.
Rex vie. sal. &c. as in Trespass ostensurus : —
quare- \e.g. : — for misfeasance] cum idem X ad dex-
trum oculum ipsius A casualiter laesum bene et com-
petenter curandum apud Trumpingtone pro quadam
pecuniae summa prae manibus soluta assumpsisset, idem
X curam suam circa oculum praedictum tam negligenter
et improvide apposuit, quod idem A defectu ipsius X
visum oculi praedicti totaliter amisit, ad damnum ipsius
A viginti librarum ut dicit. Et habeas ibi &c.
quare^ \e.g. : — for non-feasance] cum idem X tres
currus pro victualibus ipsius A ad partes transmarinas
ducendis pro certa pecuniae summa prae manibus soluta
infra certum. terminum inter eos concordatum facere et
fabricare apud Trumpingtone assumpsisset, idem X
currus praedictos infra terminum praedictum facere et
fabricare non curavit per quod A diversa bona et catalla
1 F.N.B. 92 F. 2 Blackstoue, Comtii. ill. 122 note.
8 F.N.JJ. 94 X.
Indebitatus A ssumpsit 385
sua ad valentiam centum marcarum, quae in curribus
praedictis duci debuissent, pro defectu curruum praedic-
torum totaliter amisit ad grave damnum ipsius A ut
dicit et habeas &c.
The King to the sheriff greeting &;c. as iii Trespass to shew : —
wherefore whereas he the s*^ X undertook well and competently
to cure the right eye of the s*' A, which was accidentally injured,
for a certain sum of money beforehand received, he the same X so
negligently and carelessly applied his cure to the said eye, that the
said A by the fault of him the said X totally lost the sight of the
said eye, to the damage of him the said A of twenty pounds, as he
saith, and have there &c.
wherefore whereas he the said X undertook to make and build
three carriages for conveying victuals of him the said A to parts
beyond the sea for a certain sum of money beforehand received,
within a certain term between them agreed ; he the said X did not
take care to make and build the carriages afores'^ within the term
afores"^, by which he the s'^ A hath wholly lost divers his goods
and chattels, to the value of one hundred marks, which ought to
have been conveyed in the carriages aforesaid, for want thereof to
the great damage of him the said A as it is said : and have there &c.
Case oil Indebitatus Asstnnpsit^.
The King to the sheriff &c. as in Trespass to shew : —
for that, whereas the s*^ X heretofore, to wit {date and
place) was indebted to the s*^ A in the sum of indebitatus
for divers goods wares and mercliandises by the
s"^ A before that time sold and dehvered to the s*^
X at his special instance and request
and being so indebted, he the s*^ X in con-
sideration thereof afterwards to wit {date and place assumpsit
afores^) undertook and faithfully promised the s*^
A to pay him the s*^ sum of money when he the
s* X should be thereto afterwards requested.
Yet the s*^ X, not regarding his said promise and breach
undertaking but contriving and fraudulently intend-
ing craftily and subtilly to deceive and defraud
the s*^ A in this behalf, hath not yet paid the s^
sum of money or any part thereof to the s^ A
^ Stephen, Pleadings 1824, p. 17.
M. E. 25
damage
386 Select IVrits
(although oftentimes afterwards requested). But
the s*^ X to pay the same or any part thereof hath
hitherto wholly refused and still refuses, to the
damage of the s** A of pounds as it is said.
And have you there &c.
Case for Trover'^.
The King to the sheriff greeting &c. as in Trespass to
shew : —
for that, whereas the s*^^ A heretofore to wit \date and
possession place'] was lawfully possessed as of his own property,
of certain goods and chattels to wit, twenty tables
and twenty chairs of great value to wit of the
value of pounds of lawful money of great
Britain ;
loss and, being so possessed thereof he the s'^ A
afterwards, to wit {date and place afores^) casually
lost the s*^ goods and chattels out of his possession :
finding and the same afterward, to wit {date and place
a/ores'^) came into the possession of the s*^ X by
finding ;
conversion Yet the s*^ X well knowing the s'^* goods and chattels
to be the property of the s'^ A and of right to
belong and appertain to him, but, contriving and
fraudulently intending craftily and subtilly to
deceive and defraud the s*^ A in this behalf, hath
not as yet delivered the s'^ goods and chattels, or
any part thereof, to the s'^ A (although often
requested so to do) but so to do hath hitherto
wholly refused and still refuses ; and afterwards
to wit {date and place a/ores'^) converted and dis-
posed of the s*^ goods and chattels to his the s''
X's own use,
damage to the damage of the s*^ A of pounds as it
is said ; and have you there &c.
^ Stephen, Fkading^ 1824, p. 19.
INDEX TO EQUITY
Note. The additional lectures on the Forms of Action are not dealt
with in this Index but are covered by a paged table of contents
printed after this Index.
Abator, held bound by negative covenants relating to land, 169
'Accident,' 'fraud' and 'breach of confidence' the subject of Equity, 7
Ademption, 181, 187-191
of specific legacy by alienation or destruction of thing, 187
of legacy by subsequent portion, presumed, 187
but only pro tanto by smaller portion, 189
all presumptions rebuttable, 191
Administration of estates, of deceased persons, 192—214
various kinds of debts, 194
chancery rule as to secured creditor's rights, 195
by executors out of court, 195-198
by the court, 198
of insolvent estates, bankruptcy rules to apply, 203
problems worked out, 209, 210, 212, 214
Adoption, no legal meaning in England, 185
Advancement, presumption of, 79, 80, 81
negatives resulting trust on gift to wife or child, 80
also on purchase in name of wife or child, 81
always rebuttable, 81
Agent, no provision for signature by, in ss. 7 and 9 of Stat, of Frauds, 59
Agreements for lease, considered as instance of 'conflict or variance,' 159-162
not equivalent to lease, 161
Ames, Professor, theory concerning TyrreWs Case, 42
Anson, Sir William, treatment of Equity by, 22
Anticipation, restraint on, excludes doctrine of election, 232
Assault and Battery, outside the province of injunctions, 261
Assets, legal and equitable, 195 n., 199-202
equitable, definition of, 199
classification of (i) estates, freehold or copyhold, devised or charged for
payment of debts, 200
(2) all freehold and copyhold, 200
{3) married woman's separate estate, 200
equitable, distributed rateably without regard to rank of debts, :oi
order of application to payment of debts, 207-214
subject to wish of testator, 207, 210
cla.ssification (i) Personalty not specifically bequeathed, 208
(2) Realty devised for payment of debts, 208
(3) Realty descending to the heir, 208
(4) Realty charged with payment of debts, 208
(5) Fund retained from (i) for pecuniary legacies, 20S
(6) Realty devised and personalty specifically bequeathed, 208
(7) Property passing by exercise of powei', 208
special, in bankruptcy, 205
25—2
388 Index to Equity
Assets, continued
order of, upset by specialty creditors, 211
order of, effect of secured debts on, 212-214
Assignment, voluntary of expectancy, 75
leijnl, of chose in action, 147
equitable, of chose in action, 148
Assumpsit, action of, non-existent fourteenth century, 28
why not used for enforcing trusts, 115
available at Common Law against executor or administrator, 192
Attorney-General, and charities, 51
nolle prosequi of, protects against vexatious criminal proceedings, 261
Austin, his view of the nature of equitable estates criticised, iii, i_^o, 152, 250
Auxiliary Equity, one of the divisions of Story's classification, 20
where Equity assists party to legal proceedings, 21
Bacon, L.C., made 2000 orders per annum, 10
Bailment, distinguished from trust, 45-48
(rt) bailee cannot convey title, 46
\b) bailee can be guilty of larceny, 47
Bankruptcy Court, sometimes administers estates of deceased persons, 206
Bankruptcy Rules, as to secured creditor's rights, 194
to prevail over rule in Mason v. Box'g, 195, 204
to apply to administration of insolvent estates, 203
ignored legal hierarchy of debts, 204
order of debts according to, (see Debts), 204, 205
assets available in bankruptcy, 205
application of, to insolvent estates interpreted widely : all rules, except as
to additional assets available, apply, 206
^Bare Trustee,' in s. 48 of Land Transfer Act, 1875, 88
no duty but to transfer on cestui que trust^s orders, 90
Bargain and Sale, as form of conveyance, due to Stat, of Uses, 35, 36
Bastard, presumption of advancement applies to, 8i
not 'portion debt' creditor, 184
'Bill,' name for petition in Chancery, 5
'demurrable for want of equity' 8
Bill of Sale, rights of holder of, as secured creditor, 194
Blackstone's Conunentaries, 11, 12, 13
the two systems of law and equity, 12, 13
definition of bailment, 45
Blood Relationship, is good consideration to raise a use, 33
Bona fide purchaser for value, 119, 120
can alienate to purchaser with notice, 122, 123
not bound by covenants in Equity, 169
squatter, is not, 170
Breach of Trust, trustee relieved, 104
consented to by cestui qice trust, 106
remedies for, 171-180
recovering the estate, 171
personal liability of trustee, 171
following the trust fund, 172-176
treated as creating debt for purpose of limitation, 178
remedies for criminal proceedings, 180
civil imprisonment, 180
origin of doctrine of conversion, 215
Brevia de Cursu temp. Edw. I, 3
Burgage Tenure, testamentary power over, 26
Cestui que use (or trust), misleading term, 31
if solely interested and sui juris, can end trust, 53
effect of consent of, to breach of trust, 106
Index to Equity 389
Chancellor, see History of Equity
temp. Edw. I usually a bishop, duties of, z, 3
petitions against king, 4
petitions against others, 4, 5
fourteenth century, 5-7
sixteenth century, 8
temp. Jac. I, 9, 10
commonwealth — Blackstone, 10, 1 1
nineteenth century, 14
Chancery, Court of, see Chancellor, History of Equity.
power of issuing writs, 3
Latin and English sides, 4
composition of, 14
abolished by Judicature Acts, 15
Chancery, ' throwing estate into,' for self protection of executors and
administrators, 197
Chancery Division, business assigned to, 15
different from Court of Chancery, 150
Charge, 194
of debts on real estate, easily found in will, 200
Charitable Trusts, 51-53
enforced by Attorney General, 51
definition of 'charitable,' 52
Chattels, Corporeal, no constructive notice relating to, 149
Chattels, Real, affected by s. 7 of Stat, of Frauds, 58
mortgages of, reckoned as realty in estimating priorities, 144 n.
Chose in Action, unlike an equity, 31
not transferable before Jud. Act so as to create voluntary trust, 72
legal assignment of, 147
Coke, Sir Edward, C.J., 9, 10, 17, 43, 116, 257
quarrel with Ellesmere, L.C., 9, 10, 17, 257
definition of a ' use,' 43, 116
' Common Law,' see ' Conflict or variance.^
phrase common temp. Edw. I as contrasted with statute, local custom or
royal prerogative, 2
relations with Equity, Chancellor not to hear cases which micjht go to ordinary
courts, 6
bills ' demurrable for want of equity,' 8
temp. Jac. I, 9, 10
Blackstone on the relations with Equity, 12, 13
'Conflict or vaiiance,' 16-20, iit, 152-166, 203
Compensation, estal)lished as basis of election, 226
Concurrent Equity, one of the divisions of Stoiy's classification, 20
'Conflict or variance,' between Law and Equity, 16-20, iii, 152-166, 203
apparent instances of, 17, 18, iii, 152-166
equitable assignments, 152
part performance in contract, 154
equitable waste, 157
position of executor, 158
contribution by co-debtors, 159
agreements for lease, 159-162
covenants running with land, 163-166
legal and equitable assets, 203
Consideration, 'good' to raise a use, 33
Consideration, Valuable, see Voluntmy Assignment, Voluntary Trust
effect of, upon creation of trust, 68
extended to issue of marriage, 75
Consolidation, of mortgages, nature of, 287, 288
Constructive Notice, see Notice, 123-130, 149, 285
Constructive Trust, in classification of trusts, 53, 77
390 Ijidex to Equity
Constructive Trust, confinued
where one gains a benefit from fiduciary position, 82, 83
where one takes trust property and 'gets bound by' the trusts, 83, 84, 85
as contrasted witli 'express trust,' 176
Contingent Remainders, equitable, not governed by Common Law rules, 114
Contract, no 'conflict' from diverse remedies at Law and in Equity, 18
freely dealt with in Equity, 10
and agreement to hold to uses, 28, 30, 31
and trust compared and contrasted, 54, 68, 115, 116
'implied,' dual meaning of, 76
resemblance to trust, 144
temrs not 'of the essence' in Equity, 157
to sell or buy effects 'conversion,' 222
specific performance {g.v.), 237-249
before Jud. Act, sometimes enforceable only in Equity, 243
injunctions in actions upon, 261, 263-265
Contribution, among co-debtors, different practice at Law and in Equity, 159
Conversion, 215-224
origin of doctrine of, breach of trust not to affect rights, 215
extended to cases where no breach of trust, 217
distinguished from power to convert, 217, 218
where trust has failed, 219
created by contract of sale, or option, 222
reconversion, 222-224
Conveyance, how affected by Stat, of Uses, 41, 42, 6^
effect of, in sale of land, 251, 252
Copyholds, not affected by Stat, of Uses, 37
affected by s. 7 of Stat, of Frauds, 58
devolution of, 89, 90
mortgaged by conditional surrender, 280
Corporation, until Coke's time, not bound by trust, 120
Co-trustees, can not act by majority, must all concur in acts, 94
Courts of Law, temp. Edw. I, list of, 2
King's Bench issuing mandates to inferior courts, 9
list of courts abolished by Jud. Act, 15
Courts Christian, had possibly long enforced trusts before Chancellor, 7
in the middle ages was the court for legatee, 48
jurisdiction invaded by chancery, feiiif. Eliz., 193
Covenant, to repay mortgage debt, 267
not suflicient to give mortgagee remedies, 268
not intended to be fulfilled, 269
now judgment upon, given by Chancery Division, 272
Covenant to stand seised, introduced as conveyance by Stat, o." Uses, 35
Covenants running with the land, 163-170
at law in leases, 163-165
not in leases, 165
in equity, 165-170
Creditor, see Adniiiiistradoii, Priority, Seaired Creditors
rights of, against equitable estates, 115
of Trustee bound by trust, 117
differs from cestui que trust, 1 76
Criminal Equity, none since abolition of Star Chamber, 19
avoidance of, reason for not restraining libel by injunction, 260
Criminal Proceedings, against Trustees, 180
can not be restrained by injunction, 261
Criticism, of the existing- law
In re Stead, 1900, i Ch. 237, 61
' executed ' and ' executory,' tennmology, 65
looseness of rules as to Precatory Trusts, 67
standard of piudence for trustees and 'relief,' 104
Index to Equity 391
Criticism, coutiuued
constructive notice, 124, 128 n., 149
'registration principle,' 146
reform of our land law, 149
In re A^ishet and Pott's Contract, 1906, i Ch. 386, 170
rule in Clayton's Case, 175
Statutes of Limitation applying to trusts, 180
satisfaction of ' Portion debts,' 183
drafting of Mar. Women's Prop. Act, 201
administration of estates of deceased persons. 207
Locke King's acts, 213
mortgage, form of, 269
by deposit of title deeds, 285
two systems of intestate succession, 292
Crown Debts, ranking of, in administration, odd position of, 196
query whether affected by s. 10 of Jud. Act, 1875?, 206
Cursitors, clerks in chancery, temp. Edw. I, 3
Curtesy, in Equity, 114
in personalty 'converted,' 218
in equity of Redemption, 281
Damages, judgment for, characteristic of Court of Law, 15
sometimes an inadequate remedy, 238
rules of Courts of Law as to, in sale of land, 238, 246
' undertaking in ' and inquiry as to, where interlocutory injunction granted, 256
nominal, show that damages a matter of right, 262
Debentures, agreement to take, enforceable by Specific Performance by s. 105 of
Companies Act, 190S, 240 n.
Debtor, not trustee, differences between, 45
Debts, see Satisfaction
trust for payment of, 193
various kinds of, secured and unsecured, 194
legal hierarchy of
order of, in administration out of court, 194-197
(i) to the crown, 196
(2) to friendly societies, 196
regimental, &c., 196
(3) judgment debts, against deceased, 196
(4) recognisances, 196
(5) judgment debts, against executor, 196
(6) specialty and simple contract debts, 196
(7) voluntary covenants and bonds, 197
all rank equally for payment out of equitable assets, 199
order of preferential payment of, in bankruptcy, 204
(a) certain rates and taxes, 205
{S) wages and salaries of clerks, 205
(c) wages of workmen, 205
((/) all other debts, 205
Declaration of trust, distinguished from gift, 73
Deed, and will, interpretation of, 39
not required for creation or assignment of trusts, 59
' Destinatory,' not creator of trust or 'trustor' has the remedy, 3r
Devastavit, action lay lor innocent loss ol assets by executor before Jud. .Act, r.^S
also for paying debts out of legal order, 197
Devisee, liable to action by testator's creditors by 3 and 4 William and
Mary, c. 14, 193
Diligence, standard of, is matter of fact in actions at Common Law, 98
for trustees, 98-105
rules as to constructive notice, 123-1^0
statutory relaxations, Conveyancing Act, 18S2, 124
392 Index to Equity
Discharge, of trustee, distinguished from release from past liability, no
Disclaimer, of trust, how to be made effective, 55, 56
Discovery, of documents, 21
Disseisor, held bound by negative covenants relating to land, 169
Dower, no dower in Equity till Dower Act, 1833, 114
in personalty 'converted,' 218
as effected by doctrine of 'election,' 228
general devise now bars, 229
in equity of Redemption, 281
Ecclesiastical Courts, see Courts Ckristiati, 7, 48, 193
Election, doctrine of, 225-236
based on compensation not confiscation, 226
in relation to dower, 228
in relation to powers of appointment, 229-231
excluded by intention, e.g. restraint on anticipation, 232-234
who can make valid election, 234
in relation to infants, femes covert, &c., 235, 236
Election, to retain property in unconverted state, 222-224
Elegit, writ of, defeated by feoffments to uses, 27
available against equitable estate, 1x5
available to mortgagee, 268
Ellesmere, L.C., his quarrel with Coke, 9, 10, 17, 257
Equitable Assets, see Assets, Legal and Equitable, 199-202
Equitable Estates, see Estates, Equitable, 111-155
Equitable Rights, may be conveyed upon trusts, 50
Equity, see History of Equity, Common Law, '■Conflict oi- variance,'' Estates
definition of, the author's, i, 13, 14
Blackstone's, 12, 13
history of, 2-17, 24, 28, 87, 112, 115, 117, 193, 257
quarrel with courts of law, 6, 9, 10, 17
'conflict or variance,' 16-20, iii, 152-166, 203
is supplementary law, 18, 156
Story's classification of, 20
principal results of, 22
follows the law, 31, 33, 113-115
relations between equity and law, 149, 156-170
jurisdiction in matter of wills, 193
acts in personam, 258
Escheat, avoided by feoffments to uses, 27
none of equitable estates, 114
Estates, Equitable, see Notice, Constructive, Jus in rem.
equity follows law by creating estates in uses, 32
such estates generally similar to legal estates, 33
nature of equitable estates in general, 111-155
they 3.xe Jura in personam, in, 112, 116, 117, F42, 25r
copied from legal estates, 11 3-1 15
gradual extension of list of persons against whom they are good, T17-119
limits to their validity, 119-121
notice, priorities, &c., 122-141, 144-155
Estates Tail, in equity, 113
in personalty 'converted,' 218
Exclusive Equity, one of the divisions of Story's classification, 2C
Executed Trust, as distinguished from ' Executory,' 65
Executor, see Administration
originally created inter vivos, 26
distinguished from trustee, 48, 49, 94, 179
renouncing probate, notice of charge to, invalid, 147
position of. as to lost assets at law and in equity, 15S
liable to the extent of assets, 192
Index to Equity 393
Executor, continued
how should limit liability, 192 n.
duties of, in payment of debts of insolvent estate, 195-197
'devastavit' by, 197
advertisements liy, 197
may prefer a creditor, 198
may retain debts, 198, ■206 n.
right to hold assets undisposed of, 221
Executory Trust, as distinguished from 'Executed,' 65, 66
Ex parte injunctions, 256
Expectancy, voluntary assignment of, inoperative ; but agreement to assign
valid in equity, 75
Express Trust, in classification, 53
as contrasted with 'implied,' 75, 76
as contrasted with ' not express' or 'constructive' for purposes of limitations,
76, 77, 176, 177, 179
False Imprisonment, outside the province of injunctions, 261
Feoffment, ad opus sujiin, 26
to avoid feudal dues, 27
Fiduciary relationships, other than trusteeships, benefit derived from, creates a
constructive trust, 82
sufhcient to admit of following trust fund, 176
Fieri Facias, writ of, not available to take stocks, 115
available to mortgagee, 268
Following the trust fund, 172-176
ajiplies to fiduciary relationships other than trusteeship, 176
Foreclosure, right of unpaid vendor analogous to, 251
Foreclosure, of mortgage, what is, 270
order 7iisi and order absolute, 271
reopening of, when granted, 272, 273
form of, where several persons interested in equity of Redemption. 282
Foreign or Colonial Courts, persons still liable to injunction restraining resort
to, 258
Forfeiture, avoided by feoffments to uses, 27
Form, of injunction, cj.v., 254-256
of mortgage deed, 266-268
of mortgage deed power of sale, 276, 277
Formalities, requisite for creation of trust, 57-62
requisite for assignment of trust, 58
Franciscan Friars, first made common the practice of holding to uses, 25
Fraud, 'accident' and 'breach of confidence,' subject of Equity, 7
is the basis of constructive notice, 129
will postpone legal to equitable title, 132, 133
effect of, on Stat, of Limitations for trustees, 178
Fund, trust, see Following, 172 et seq.
'Future Goods,' 153 n.
German Code, contains no law of trust, 23
Gierke, 'I cainiot understand your trust,' 23
Gift, imperfect, will not be construed as declaration of trust, 73-75
Goodwill, sale of, specific performance granted if subsidiary to sale of
house, 240
Habeas Corpus, writ of, serves to protect against false imprisonment, 261
Henry IV, himself a cestui que use, 30
Henry V, himself a cestui que use, 30
Henry VIII, personal motives in enacting Stat, of Uses, v
High Court of Justice. \^
Divisions of, ij, 150, 191
394 Index to Equity
High Court of Justice, contimted
C.P.D. and Ex. D. abolished by Order in Council, ijo
administration assigned to Ch. D., 192
History of Equity
temp. Edw. I, 2-5
fourteenth century, 5-7, 24, 28
sixteenth century, 8
temp. Jac. I, 9, 10, 257
commonwealth to Blackstone, 10, 11
nineteenth century, 14, 15
devolution of trustee's rights, 87
fifteenth century, 112, 115
against whom rights enforced, 117
temp. Elizabeth, touching legacies, 193
value of mandatory injunction, 257
Holmes, Mr Justice Oliver Wendell, argues against Roman origin of Equity
rules, 8
Illegitimate Children, see Bastard, 81, 184
Implied Trust, 53, 75, 76
place in classification, 53
meaning of, used in two senses, 75, 76
Imprisonment, in civil proceedings, Debtors' Act, 1869, iSo
Infant, can not make election, court elects for, 234
can be put to election when coming of age, 235
Infants' Settlements Act, 1855, see Statutes, 235
Injunction, 15, 19, 20, 237, 254-265
definition and form of, 254, 255
interlocutory, form of, 256
ex parte, 256
mandatory, 257
issue of, how far affected by Jud. Acts and other statutes, 15, 258
Equity originally unwilling to restrain damage to land, 259
libel, court now has power but seldom grants interlocutory injunction, 260
in actions for tort, 19, 20, 261, 262
not merely alternative to damages, 261
but always discretionary, 262
balance of convenience more closely scrutinized in case of mandatory in-
junction, 262
in actions for contract, 263
always for negative contracts, 263
balance of convenience hardly considered, 264
must not indirectly enforce a contract of service, &c., 264, 265
Interlocutory Application, what is, 255
Interlocutory Injunction, what is, how obtained, 255, 256
Interpretation, see Will
of wills and deeds, difference, 39
Intestate Succession, two systems of, basis of conversion, 215
one too many, 292
Intestate Trustee, to whom land devolves, 88, 89
Investment, duty of, 99-102
means 'dressing up' of fund, 173
James I, his pleasure in deciding quarrel between Law and Equity, 9, 10
John of Gaunt, his will, 30, 31
Joint Tenancy, used for trustees, 26
presumption against for traders, 81
Judgment Debts, see Debts
recovered against deceased, 196
and recovered against executor, 190
Index to Rqiiity 395
Jus in rem and jus in personn/n, 12, 29, 30, 11 1, 112, 115, 116, 117, 142,
250, 251
trust is Jus in personam, 22, 29, 30
equitable rights are merely />/;■« i)i personam, i[i, 112, i p
analogous \.o jura in rem, (15, 117
testimony of Coke, 116
Austin's error, in, 112, 256
King, the, petitions to, referred to Chancellor, 3
settles quarrel between Chancery and Law Courts, 10
petitions against, referred to Latin side of Chancery, 4
Land, see Sale
sale of, by trustee, conditions, &c., 102, 103
measure of damages, 238
sale and lease of, specific performance granted, 238
delivery or retention of, is the only case of 'pari performance' taking a
case out of the Stat, of Frauds, 242
sale of, misdescription, 243, 245, 246
conditions of sale, 246
usual course of, 249
position of vendor, 250, 251
conveyance, q.v., 251, 252
trespass or waste to, equity originally unwilling to restrain by injunction, 259
Langdell, treatment of equitable rights by, 32
Lease, and agreement to let, difference between, 159-162
covenants contained in, when running with land, 163-165
of land, specific performance granted of, 238
Lease and Release, conveyance by, 36
Leasehold, priorities as to, determined by land rules not personalty rules, 144
why mortgaged by sub-demise, 280
Legacy, to creditor when 'satisfaction,' 181
if equal or greater, yes, 181
if less, no, 182
rule not now favoured, 182
to 'portion debt' creditor where 'satisfaction,' 183
always presumed, yes, 184
ademption of specific legacy by alienation, 187
when adeemed by portion, 187
originally not recoverable in Court of Common Law, 193
pecuniary, position of, in order of assets, 208
Legal Assets, see Assets, 195 n, 199-202
Legal Estate, right to 'call for,' 141
outstanding, danger of, 143
Lewin, his definition of trust considered, 43
on effect of Statute of Frauds, 58
on bequests upon trust, 61
on construction of trusts, 66
on consideration, 68
his classification of trusts, 75
express and implied, 76
resulting and constructive, 77
on resulting trusts, 78
on constructive trusts, 82
on equitable recoveries, 113 n.
on disseisor ot trustee, 121
on rights of bona fide purchaser to sell, 123 n.
Libel, Equity originally unwilling to grant injunction against, 260
now court has power to grant injunction both final and interlocutory but
latter rarely granted, 2^10
39^ Index to Equity
Lien, vendor's, before and after conveyance of land, 251-253
when abandoned, 253
Limitation, words of, necessity for, sometimes dispensed with in Equity, 65, 66
Conv. Act, 1881, s. 51, 291
Limitations, Statutes of, see Statutes (32 Hen. VIII, c. 2, 21 Jac. I. c. 16,
Real Prop. Lini. Act, 1874, ]\\d. Act, 187:5, s. 2^, s.s. 2, Trustee Act,
1888, s. 8)
distinction between position of executor and trustee, 49, 179
as affecting express and constructive trustees, 76, 77, 176-180
origin of the 60 years' title, 123
Littleton, had land held to his use, 29
^^■ill of, 32
Locke King's Acts, see Statutes (17 and 18 Vict. c. 113, 30 and 31 Vict. c. 6g,
40 and 41 Vict. c. 34), 212, 250
Majority, of trustees, no powers, 93, 94
Malicious Prosecution, outside the province of injunction, 261
Mandatory Injunction, what is, 257
less readily granted than prohibitive, 262
Market Overt, restriction upon absolute ownership, 142
Marriage, issue of, within consideration, 75
of woman, notice of, not notice of settlement, 126, 127
Marriage Articles, liberal interpretation of, by Equity, 65
Marriage Settlement, of infant, voidable, 235
Infants' Settlements Act, 1855, 235
Married Woman, s.ee Statutes (Mar. Women's Property Act, 1882)
separate property of, 232
can make election, 234
Marshalling, where there are legal and equitable assets, 201
by pecuniary legatees against specific devisees, 20S
to rearrange order of assets where disturbed by creditors, 211, 212
Maxims, *■ qui prior est tempore potior est Jure," 8, 130, 134
aequitas sequitur legem, 31, 33, 113-115
'a man must not profit by his own fraud,' 61
' technical words have technical meaning,' 65, 66
'a trust shall never fail for want of a trustee,' 68
'■jus accresceiidi inter imrcatores locum non kabet,'' 81
'you can not approbate and reprobate,' 225, 236
equity acts in personam, 258
' once a mortgage always a mortgage,' 292 n.
Middlesex and Yorkshire registration acts (the old), practically nullified by
doctrine of constructive notice, i 29
Misdescription, in contract of sale of land, 245, 246
if trivial, specific performance with abated price, 245
if more serious, purchaser's option to reject or take with abated price, 245, 246
if still more serious, no abatement of price, 246
Mistake, as affecting specific performance, 245
Mortgagee, in possession, situation of, 273, 274
power of sale, 274-281
Mortgages, see Sale, Poiver of, 133-141, 143, 194, 195, 212, 266-293
legal, when postponed, 133
tacking of, 134, 135, 137, 138
on land governed by Really rules as to Priorities, q.v., 139
of leasehold by sub-demise, [64, 280
in administration of estate of deceased person, 194
in insolvency, 195
of realty, primarily to be satisfied out of land mortgaged, 212
deed, simplest form of, 266-268
trustees not to lend more than two-thirds of value, 268
can be redeemed until sale or foreclosure, 269, 270
Index to Equity 397
Mortgages, continued
foreclosure, -270-273, 282
enti-y by mortgagee, 273, 274
power of sale, extra-judicial, 274
judicial, 275
usual power before 1881, 276, 277
under Conveyancing Act, 1881, 278, 279, 283
by life tenant, usual form of, 280
of copyhold by conditional surrender, 280
of personalty subject to Bills of Sale Acts, 280
rights of mortgagor, 281
realty and subject to accidents of realty, 281
merely equitable mortgages — second mortgage, 282, 283
deed not essential, 283, 284
deposit of title deeds, 285, 286
tacking, 286
consolidation, 286
mortgagee's rights, originally some realty and some personalty in Law, 288
held to be personalty in Equity, 289
confusion remedied by Trustee Act, 1850, Vendor and Purchaser's Act, 1874,
and Conveyancing Act, 1881, s. 30: all made personalty, 290, 291
'once a mortgage always a mortgage,' 292 n.
Mortmain, statutes of, could be evaded by feoffment to uses, 27
until temp. Ric. II, 34
Motions, in Chancery, usually heard one day a week, 255
Negligence, see Diligence
unless gross enough to equal fraud will not postpone legal to equitable title,
132, 134
will postpone one equity to another, 132, 133
Nolle Prosequi, protects against vexatious criminal proceedings, 261
Notice, see Tacking
of equity, as" determining priorities
to trustee or debtor determines priority of equities to personalty, 144-147
how far notice to one trustee notice to all, 146
to a renouncing executor, bad, 147
of debt, in writing to debtor required for legal assignment, 147
of equity, as binding purchaser for value of trust property
purchaser with notice bound by all equities and all negative covenants,
84, 118, 122, 166
notice is actual or constructive, 118
constructive notice, 123-130
squatter bound by notice of late tenant's deeds, 121, 169, 170
of mortgage by deposit of deeds, 285
notice of marriage not notice of settlement, 126, 127
possession of tenant is notice of his rights, 127, 161 n.
notice of joint lending not notice of trust, 127
policy as to, 149
doctrine inapplicable to corporeal chattels, 149
notice to subsequent purchaser from a bona fide purchaser for value, im-
material, 123
effect of these rules on old local registry acts, 129
Option, to purchase land, exercise of, eftects conversion, 223
Order of Assets, see Assets
for payment of debts, 207-214
Order of Debts, see Debts
for payment in administration out of legal assets, 194-197
for payment out of equitable assets, no order, 199
in bankruptcy, 204, 205
398 Index to Equity
Ownership, distinguished from trust, duties of owner negative, 45
'general' and 'special,' 47
true as opposed to equitable, 129, 130, 134
nature of absolute ownership, 142
Partners, presumed tenants in common, 8r
Part Performance, 154, 155, 241, 242, 285
doctrine of, not extended by jud. Acts, 154, 755
not payment, 241
not marriage or service, 242
only delivery or retention of land, 242
is the basis of equitable mortgage by deposit of title deeds, 285
Perpetuities, rule of, how far applicable to charities, 52
operation of, leaves resulting trust, 78, 221
breach of, not remedied by doctrine of election, 231
Personal Representative, see Executor
of trustee, powers of, under Land Transfer Act, 1897, 90
Personalty, see Conversion
transfers, not creations, of trusts of, require writing by Stat, of Frauds, ss. 7-9,
58, 113 .
trusts of, priorities as to, 139, 1 44-1 49
subject to debts before realty, strong presumption, 210
land on trust or mortgage to devolve as, Conv. Act, 1881, s. 30, q.v.
Petitions, to Chancellor, 3, 4, 5
Pilgrimage of Grace, provoked by the Stat, of Uses abolishing wills of land, 35
Plena administravit, effect of plea of, 192 n.
Pollock, Sir Frederick, treatment of Equity by, 22
on trusts and contract, 115, 116
on nature of equitable rights, 1 2 1
on covenants running with land, 163
on 'making representations good,' 243 n.
on contract, 245 n.
Portion, see Ademption, Legacy
when adeeming legacy, 187
what is, 188
'Portion Debt,' see Satisfaction, 181, 182
treated separately in respect of 'satisfaction,' 183
what is, 184
Possession, of tenant is constructive notice of his rights, 127, 161 n.
Possession vaut titre, in foreign law, 142
Postponement, see Priorities
of legal to equitable rights, 132, 133
of one equity to another, 133
Power, of appointment, general, property passing by, available for payment
of debts, in last resort, 208, 209
as affected by doctrine of election, 229, 230
Power, of sale, see Mortgages, Sale
of mortgagee, 274-279
and second mortgagee (by deed), 283
Praemunire, penalties of, threatened by Coke against persons resorting to
Chancery, 10
Precatory Trusts, what are, 66, 67
Precedent, followed by Chancellors, 8
effect of, on standards of prudence, 99
Precipe, tenant to, made in equitable recoveries in imitation of law, 113
Presumption, of resulting trusts when rebuttable, 79
of advancement, 80
of satisfaction, 181-187
of ademption, 187-19T
Priority, between equities, 130
Index to Equity 399
Priority, continued
between equities in realty, 130-144
realty and personalty, 139
between equities in personalty, 1 44- 149
Priority, between debts, see Debts
for payment in administration, 194-197
and in bankruptcy, 204, 205
Procedure, growth of, in Equity, 5
reform of, by Jud. Acts, 14, 15, 16
Prudence, standard of, for Trustees, 98-105
as to constructive notice, 123-130
Prudent Man, see Diligence
of common law defined by jury, of equity by judges, 98
of equity, often excessively high standard, 124
'Purpose' Trusts, 51-53
instances of, charities, &c., 51, 52
can be ended by sole cestui que trust, 53
Realty, see Personalty
trusts of, priorities as to, 139-144
available for payment of deceased's debts, 1833, 200
Receipt clause, in conveyance and endorsed, 253
prevents sub-purchaser having notice of vendor's lien, 253
Recognisances, position of, in order of debts, 196
Reconversion, of notionally converted property, who can effect, 219 n., 222
evidence of, 223
where several cestui que trusts, 223, 224
Recovery, in Equity to bar estate tail, 113
Redemption, see Mortgages
proviso for, in mortgage, 267
equity of, 269 270
nature of mortgagor's rights, 281
curtesy and dower in, 281
persons entitled to, may redeem, 2S2
'clog on,' forbidden, 292 n.
Relief, from effect of breach of trust, under Judicial Trustees Act, 1896, 49,
104, 105, 179
Remainderman, quaere? can he elect to reconvert?, 224
Reports, of judicial decisions, at law, begin temp. Edw. I, 8
in ecjuity, first good reports 1 8th century, 11
Representations, doctrine of ' making good representations' obsolete, 243
Residue, lapsed share of, not applicable for payment of debts before other
shares, 208
ranks with specific bequests and devises for payment of debts, 208
Restraint of Trade, covenants in, validity of, decided in suits for injunctions,
263, 265 n.
Restrictive Covenants, enforced against person taking land with notice actual
or constructive, 165—170
Resulting Trust, 53, 77-82, 221
position of, in classification, 53
subdivision of, 77
(a) where legal but not equitable interest disposed of, 77-80
(/3) where purchaser takes conveyance in name of third party, 80-82
created fjy operation of rule against perpetuities, 78, 221
presumption of advancement, 80, 81
Resulting Uses, doctrine of, shows frequency of uses, ^^, 34
distinguished from resulting trusts, 63
Retainer, of own debt by executor, possible so long as debts of higher order
paid, 198
not affected by order under Bankr. Act, 1883, s. 125, 207 n.
400 Index to Equity
Roman Law, influence of, on Chancery often exaggerated, 8
effect of, on testamentary powers, 26
fidei coinniisstim not connected with our 'trust,' 32
Sale, of goods, specific performance in, 239 n.
Sale of Land, see Misdescription, Part Performance, Specific Performance
by trustees, conditions, 102-104
rule at Common Law as to damages, 238
specific performance of, 238
part performance of, takes case out of Statute of Frauds, 241, 242
misdescription, 245, 246
conditions as to misdescription, 246
usual course of, 249-253
agreement to sell, 249
conveyance, 251
vendor's lien, 251-253
Sale, Power of, mortgagee's
extrajudicial, 274-279, 281, 283
at common law, 275
form of, usually given before 1881, 276, 277
under Lord Cranworth's Act, and Conveyancing Act, 1881, s. 19, 276-279
applies to personalty, 281
of second mortgagee, 283
judicial, under Conveyancing Act, 1881, s. 25, 275
Salmond, treatment of equitable rights, 32
Satisfaction, see Legacy, 181-187
satisfaction of debt by legacy, C81-183
portion debts by legacy, 183-187
distinguished from ademption, 189
all presumptions rebuttable, 191
Scottish Law, origin of phrase ' to approbate and reprobate,' 225
Second Mortgages, see Mortgages
to be avoided, 143
nature of lights conveyed by, 282, 283
Secured Creditors, rights of, in insolvency, 194
bankruptcy rule contrasted with chancery rule, 195, 204
eftect of, on order of assets, 212-214
rights of, generally, 269
Service, contract of, will not be enforced by injunction enforcing implied
negative contract, 264
express contract not to sei"ve others sometimes enforced, 264
enforcement of contracts in restraint of trade after leaving service, 265 n.
Solicitor, originally not authorized to receive trust moneys, 94
now authorized under Trustee Acts, 1888, s. i, 1893, s. 17, 95
Specialty and simple contract debts, priorities, 196
Specialty creditors could upset order of assets, 2H
Specific Performance, 18, 69, 237-249
none of voluntary trust, 69
what is, 237
damages not full remedy, 238
applied to what contracts, 238-240
sale and lease of land, 238
sale of unique chattels, 239
agreement to do work if subsidiary, 239
not agreement to lend money, 240
serve, 240
only of valid enforceable contract, 240, 243
part performance, 240, 241, 242
when remedy at law lost, 243, 244
now hardly discretionary, 245
^
Index to Equity 401
Specific Performance, contiimed
deleiices — mistake, 245
mi.sdescripti(;n, 245, 246
inadequacy of price, douiitful defence, ■247
want of mutuality, doubtful defence, 247
doubt of title, doubtful defence, 249
Spence, argues for Roman origin of equity rules, 8
Spes Successionis, see Expectancy, 75
Springing and Shifting Uses, gave flexibility to legal estates after Statute
of Uses, 36
Squatter, held bound by notice of late tenant's title deeds, 121, 169, 170
Star Chamber Court, twin sister of Court of Chancery, 10
end of Ciiminal Equity when abolished, 19
Statutes, cited
7 Edw. I, c. I (mortmain), evaded by uses, 27
13 Edw. I, St. I (Statute of Westminster 2nd), c. 24, authorizing writs in
consiinili casit, 3
18 Edw. I, c. I (mortmain), evaded by uses, 27
15 Ric. II, c. 5 (mortmain), ending evasion by uses, 34
16 Ric. II, St. 5 (Statute of Praemunire), threatened against persons
resorting to the chancery by Coke, 10
1 Ric. Ill, c. I (fraudulent alienations), authorizing alienations by r^j^w/ ^?^«
use, 34
27 Hen. VIII, c. 10 (Statute of Uses), 24, 34-42, 57 n., 61, 64, \\^
preamble and text of s. i, 34, 35, 57 n.
abolished wills of freehold, 35
introduced new conveyances, 35, 36
gave flexibility to legal estates, 36
does not affect personalty, copyhold or leasehold, 37, 38
distinction between simple and active uses, 38-41, 64
adding words to conveyances, 41, 42, 63
apjjlies to wills, 64
27 Hen. VIII, c. 16 (Statute of Inrolments), deed enrolled for bargain
and sale, 36
32 Hen. VIII, c. r (Statute of Wills), power of devising freehold, 35
32 Hen. VIII, c. 2 (limitation of real actions), origin of 60 years title, 123
32 Hen. VIII, c. 34, s. 2, assignee of reversion bound by lessor's covenant,
163, 164
34 and 35 Hen. VIII, c. 5, explaining Statute of Wills, 35
13 Eliz. c. 5 (defrauding creditors), avoidaiice of settlements, 71
27 Eliz. c. 4 (voluntary conveyances), void against purchasers, 71
43 Eliz. c. 4 (charitable uses), 51
2 1 Jac. I, c. 16 (Statute of Limitations), 49, 76, 262
differentiates executor or administrator from trustee, 49
equity gave protection analogous to, 76
affects damages not injunctions, 262
12 Car. II, c. 24 (abolishing military tenures), extended scope of Stat, of
Wills to all freehold, 35
29 Car. II, c. 3 (Statute of Frauds), 56-60, 73, 75, 81, 113, 154, 236n.,
240, 247, 285
S. 4, memo, in writing, part performance doctrine not extended by
Judicature Act, 154, 155
extent of doctrine of part performance, 241, 242
ss. 7, 8 and 9, text of, 57, 58
ss. 7 and 8, declarations of trusts of land, 58, 59
now dealt with by Equity, 59
no requirement of witnesses, 60
no application to resulting trusts, 81
s. 9, transfers of trusts, of land or personalty, 113
3 and 4 Will, and Mary, c 14, creditor can sue debtor's devisee, 193
M. £. 26
402 Index to Equity
Statutes, contiittied
7 Geo. II, c. 20, tender of debt as defence to ejectment by mortgagee, 273
9 Geo. II, c. 36 (mortmain), disabilities of charities, 220
39 and 40 Geo. Ill, c. 98 (Thellusson Act), limiting income accumula-
tion, 93
3 and 4 Will. IV, c. 27 (Real Property Limitations Act), operates against
purchasers of trust property, 170, 178, 179
3 and 4 Will. IV, c. 74, s. 71 (Fines and Recoveries Act), barring estate
tail in personalty notionally converted, 218
3 and 4 Will. IV, c. 104, realty made assets for payment of all debts, 200
3 and 4 Will. IV, c. 105 (Dower Act), 114, 229, 281
introduced dower in equitable estates, 114, 281
general devise sufficient to disendow, 229
4 and 5 Will. IV, c. 23, equities made enforceal>le against lord entering
on escheat, 120
Wills Act, 1837, 56, 60, 208, 219, 224
formalities of, must be observed in creating trust, 60
quaere} may election to reconvert by the remainderman be breach of?, 224
Judgments Act, 1838 (i and 2 Vict. c. 1 10), s. 12, execution of judgment
made available against stocks, 115
6 and 7 Vict. c. 85, s. i, persons interested unable to give evidence in
Common Law Courts, 15 n.
Lands Clauses Consolidation Act, 1845, limits rights in rem, 142
Real Property Act, 1845, corporeal hereditaments to 'lie in grant,' 63
Trustee Act, 1850, 108, 109, 290
Court can appoint new trustees, 108, 109
Vesting orders, 290
14 and 15 Vict. c. 99, s. 2, parties enabled to give evidence in Common
Law Courts, 15 n.
Common Law Procedure Act, 1852, ss. 219 and 220, tender of debt
defence to ejectment by mortgagee, 273 n.
15 and 16 Vict. c. 86, s. 48, judicial power of sale of mortgagee, 274
Trustee Act, 1853, Vesting orders, 109
17 and 18 Vict. c. 113 (Locke King's Act, no. r), mortgage debt to come
from property mortgaged, 212, 250
Common Law Procedure Act, 1854, ss. 79 and 82, Injunction can be
granted by Common Law Courts, 15 n., 258, 260
Infants' Settlements Act, 1855, validating certain infants' marriage
settlements, 235
Malins' Act, 1857, empowering femes covert to deal with certain choses
in action, 236 n.
Chancery Amendment Act, 1858 (Lord Cairns' Act), s. 2, damages
can be given in Chancery, 1 5 n.
Law of Property Amendment Act, 1859 (Lord St Leonards' Act),
s. 29, protection of executors &c. by advertisements, 197
23 and 24 Vict. c. 38, ss 3 and 4, registration required to give priority to
judgment debt, 196 n.-
23 and 24 Vict. c. 145 (Lord Cranworth's Act), power of appointing new
trustees, 107
first extra-judicial power of sale by mortgagee, 276
Larceny Act, 1861, ss. 75 and 76, punishing misappropriating agents, 180
s. 80, punishing misappropriating trustee, 180
30 and 31 Vict. c. 69 (Locke King's Act, no. 2), 212, 250
32 and 33 Vict. c. 46 (Hinde Palmer's Act), priority of specialties
abolished, 196, 200-202
Debtors' Act, 1869, abolishing imprisonment for debt, 180
Judicature Acts, 1S73 and 1875, 15, 16-18, 73, 76 n., 112, 121, 147,
148, 151-166, 177, 192, 195, 202-206, 243, 257, 258
general effect of, upon courts, 15
and procedure, 16
Index to Equity 403
Statutes, continued
Judicature Acts, 1873 and 1875, coiitintced
1873, s. 24,5.8.(5), no injunction to restrain High Court, ■257
s. 2-;, s.s. (i), repealed by Jud. Act, 1875, 151, 203
,, s.s. (2), Statutes of Limitations, 76 n., 151, 177
,, s.s. (3), equitable waste, 151, 157
,, s.s. (4), merger, 151
,, s.s. (5), mortgagor in possession, 151
,, s.s. (6), assignment of choses in action, 73, 147, 148, 151
,, s.s. (7), terms not of the essence, 151, 157
,, s.s. (8), injunctions, 151, 258
,, s.s. (9), collisions at sea, 151
,, s.s. (10), custody of infants, 151
,, s.s. (11), 'conflict or variance,' q.v., 16-18, 112, 152-166
s. 34, s.s. (3), administration of estates assigned to Chancery Div. ,
192
1875, s. 10, bankruptcy rules to prevail in administration of estates of
deceased persons, 195, 203-206
Real Property Limitation Act, 1874, 12 years to extinguish owner's
right, 170, 179
Vendor and Purchaser Act, 1874, 88, 103, 123, 128, 135, 149, 287, 290
laid down normal conditions of sale and permitted trustees to use them,
substituted 40 for 60 years title, 123
lessee on open contract can not see lessor's title, 128
s. 4 gave mortgagee's personal representative a power to convey realty, 290
s. 7 attempted to abolish 'tacking,' 135, 149, 287
Land Transfer Act, 1875, s. 39, revived 'tacking,' 135, 287
s. 48, ' bare trust ' to devolve as personalty, 88
40 and 41 Vict. c. 34 (Locke King's Act, no. 3), 212, 250
Bills of Sale Act, 1878, s. 4, covers declarations of trust without transfer,
154
increases bankruptcy assets, 205
Conveyancing Act, 1881, 88, 89, 103, 107-109, 124, 143, 161, 164, 253,
266, 267 n., 274, 276, 278, 279, 283, 287-290
s. 3, protection of vendor selling on open contract, 124
s. 6, interpretation of general words, land, and manor, 267 n.
s. 7, covenants for title in mortgage, 266, 278, 279
ss. 10 and 11, touching covenants running with the land in leases, 164
s. 14, agreement for lease does not entitle to protection against re-entry,
161
S. 17, consolidation of mortgages must be bargained for, 286
s. 19, extra-judicial power of sale to mortgagee, 274, 276, 278
s. 21, and to second mortgagee, 283
s. 25, judicial powers of sale by mortgagee, 274, 275
s. 26, 'Statutory mortgages,' 279
s. 30, land held on trust or mortgage to devolve as personalty, 88, 143,
287-290
ss. 31 ct seq., appointment of, and vesting in, trustees, 107-109
ss. 54 and 55, extending validity of receipt in body of deed, 253
s. 63, conveyances to pass all conveying party's estate, 267 n.
s. 66, trustees may use conditions of sale enacted, 103
.Settled Land Act, 1882, converts fund into realty, 218
Conveyancing Act, 1882, s. 3, definition of constructive notice, 124, 126,
128 n., 139, 149
Bills of Sale Act, 1882, s. 5 (mortgage bills), void against third [larties
as to goods not owned by grantor, 154
increases bankruptcy assets, 205
Married Women's Property Act, 1882, enabled wife to own chattels,
\\\ law, 74, 75
404 Index to Equity
Statutes, continited
Married Women's Property Act, 1882, contiinted
quaere effect of, as to equitable assets?, 200, 201
s. 3, loan to husband for trade, asset in his bankruptcy, 205
Statute Law Revision Act, i 883, repealing C. L. P. Act, 1854, ss. 79-82,
260 n.
Bankruptcy Act, 1883, s. 40, preferential payments (repealed), 204, 205
s. 44, 'order and disposition' clause, 145
s. 125, bankruptcy administration of estate of deceased person, 196 n.
Intestate's Estates Act, 1884, s. 4, creates escheat of equitable interests,
114, 221
Copyhold Act, 1887, s. 45, Conv. Act, 1881, s. 30, not to apply to
copyhold, 89
Mortmain Act, 1888, did not enable land notionally converted to be held
by charity, 220
Trustee Act, 1888, 76 n., 94, 103, 178, 179
protection to purchasers from trustees, 103
s. I, empowering trustee to employ certain agents, 94
s. 8, Statutes of Limitation for trustees, 76 n., 178, 179
Preferential payments in Bankruptcy Act, 1888, s. i, ranking debts
in bankruptcy, 205
extended to Chancery by s. 10 of the Jud. Act, 1875, 206
Trust Investment Act, 1889, replaced by Trustee Act, 1893, 100
Factors Act, 1889, restriction on rights in rem, 142
Mortmain Act, 1891, enabled charity to take land for sale, 220
Conveyancing Act, 1892, s. 5, 'lease' to include agreement for purposes
of s. 14 of Conv. Act, r88i, 161
Voluntary Conveyances Act, 1893, restricting 27 Eliz. c. 4 to mala fide
conve\'ances, 71 n.
Trustee Act, 1893, 94, 101-103, 107-109, i78n.
s. 1, authorized investments, loi
s. 8, protection of trustee within the two-thirds of value rule for mort-
gages, 102
ss. \o et seq.. Part II, appointment of new trustees, 107
s. 10, removal for absence for 12 months, 108
s. 12, vesting of property by declaiation, 109
s. 14, power to sell to depreciatory conditions, 103
s. 17, power to collect money by banker or solicitor, 94
s. 25, power of Court to appoint new trustee, 108
s. 26, Vesting orders, 109
Sale of Goods Act, 1893, largely repeats Factors Act, 1889, 142
'future goods,' 153 n.
s. 52, authorizes specific performance in any action on contract to deliver
sjiecific goods, 239 n.
Copyhold Act, i 894, s. 88, replacing s. 45 of the Copyhold Act, 1SS7, 89
Juil iciaj Trustees Act, 1896, s. 3, relief to honest trustees, 49, 104,105, 179
s. I, including personal representatives, 49
Land Transfer Act, 1897, 49, 90, 201 n., 211, 215
qiiacrcl eflect of, on legal and equitable assets?, 201 n.
lessens occasions for marshalling, 211
does not affect doctrine of 'conversion,' 215
s. I, s.s. (4), including equities to copyholds not legal estates, 90
s. 2, personal representatives to hold land as trustees, 49, 90
Land Charges Act, 1900, s. 5, qitae^-el effect of, on judgment debts
unregistered ?, 1 96 n.
Colonial Stock Act, 1900, adding to trustee investments, loi
Larceny Act, 1901, punishes misappropriating agents, &c., 180
Companies Act, 1907, s. 16, specific performance given of contract to
take debentures, 240 n.
Companies Act, 1908,5. 105, replacing s. 16 of the C. Act, 1907, 240 n.
Index to Equity 405
Stockbroker may be emploj'ed by trustee, 95
Story, Judge, his classification of equity, 20
Strahan's Dii^est on precedents for standards of prudence, Q9
Sub-demise, mortgage by, reason of, 164, 280
Subpoena, Writ of, whereby defendant was summoned to answer petition in
Chancery, 5
Summons, originating, new procedure for foreclosure, 270 n.
Superstitious bequests, 62
Tabula in Naufragio, phrase used in regard to 'tacking', 135, 140
Tacking, of mortgages, doctrine of, explained, 134-138
repetiiion of main rules, 286
Taxes, preferential payment in bankruptcy, 205
Tenancy in Common, presumed in case of partnership, 8r
Tenant, possession of, gives constructive notice of all his rights, 117, 161 n.
Terms of Years, created in settlements to raise portions &c., 38
Things Incorporeal, legal creation of, e.g. use, 31
Time, not of the essence in equity, 243
except in certain cases, 244
Jud. Act, 1873, s- '25> s-S- 7> applies equity rules, 244
Title, need to investigate, conditions &c., 123, 124
doubtful, will perhaps not be thrust on purchaser, 248
covenants for, in mortgage, supplemented by Conveyancing Act, 18S1, 279
Title Deeds, mortgage in equity Ijy deposit of, 2S5, 286
Tort, on the whole little affected by equity, 19, 20
injunctions in actions for, 261, 262
Trade Mark, form of injunction restraining infringement, 254, 255
Transfer, of property to new trustees, distinguished from appointment of, 109
Transfer, must be perfect to create voluntary trust, 71
Trust, see Use, Trustee, Estates, Eqitilable, li'c, Breach of Trust
origin of, 6
nature of, 17, 23
distinctively English, 23
definition of, Lewin's considered, 43
definition of, 44-53
distinguished from ownership, 45
debt, 45, 176
distinguished from bailment, 45-48
executorship, 48
simple and active, 50, 51
charitable, q.v., 51-53
creation of, by act of party, 53-75
not by act of party, 75-S5
classification of, 53, 75-77
distinguished from contract, 54
executed and executory, 65, 66
precatory, 66, 67
voluntary, q.v., 69-75
express and implied, q.v., 75, 76
resulting, q.v., 77-82, 221
constructive, q.v., 77, 82-85, 176
who is bound by, 84, 11 7-1 23
variety of, 93
for investment, 99-102
relief on breach of, 49, 104, 105, 179
end of trust, 105, 106
remedies for breach of, 1 71-180
for payment of debts, 193
for conversion, 217
Trust Fund, following, 172-176
26 — 3
4o6 Index to Equity
Trustee, duties not purely negative, 45
relief of, 49, 104, 105, 179
can not be made without acceptance of trusteeship, 55
rights of, 86-93
sometimes equitable, 86
devolution of rights, 87-90
alienation by, 92, 93
duties of, 93-105
one of more, no power, 93, 94
can not delegate, 94, 95
can have assistance, 94, 95
no remuneration, 96
can not purchase property, 96
can hardly purchase from cestui que trust, 97
investment duties, 99-102
duties in sale of land, 102-104
end of office, 105-109
new, appointment of, 107-109
discharge of, no
liability for breach of trust, q.v., 171-180
liability to criminal proceedings, iSo
imprisonment in civil proceedings, 180
how far vendor becomes trustee, 250
should not lend more than two-thirds of value upon mortgage, 26S
Undertaking in damages, where interlocutory injunction granted, 256
Use, see Trust
origins of, 6, 7, 24, 25, 113
derivation from 'opus,' 24
advantages of, 27
and contract, 28-31
is jus in personam, 29, 30
remedy given to dcstinatory, 31
against whom enforceable, 32
resulting uses, 33
springing and shifting, 36
simple and active, 38-41
upon a use, 41, 42
Coke's definition of, 43, 1 16
Vendor, see Sale
of land how far trustee, 250
rights of lien and foreclosure, 251, 2 '2
risk of loss falls on, 251
abandonment of lien, 252, 253
Vesting Order, statutory power to make V. O. transrcning property to new
trustees, 109, 290
Voluntary Assignment, creating resulting trust, 79
assignee from trustee bound by tnist, 118
Voluntary Trust, 69-75
of chose in action 73
Wardship, burdens of, evaded by feoffments to uses, 27
Waste, equitable, 157
W^ill, made by feoffments to uses, 26, 27
of John of Gaunt, 30, 31
and deed, interpretation of, 39
can create or tr.insfer trusts, if valid, 60
how affected by Stat, of Uses, 64
construction of, 65, 87
Index to Equity ^o/
Will, continued
of equitable estates, 113
when not treated as 'speaking from date of death,' 183
originally enforced by Courts Christian, 193
as affected by doctrine of conversion, 218
election, 225
interpretation of, clear words required to show intention to pass property
of others, 228
Williams, on Real Property, explains Ames's theory on Tyr7-eirs Case, 42
W^ords, 'charitable,' 51
'bare trustee,' 88, 90
'future goods,' 153 n.
' in loco pa7-en(is, ' 1 85
' ex parted 256
' in ke simple,' 291
Writing, required by ss. 7, 8 and 9 of Stat, of Frauds, 57-60, 81, 113
required by s. 4 of Stat, of Frauds, 154, 155, 241, 242
required in trust for conviction of trustee under s. 80 of Larceny Act,
1861, 180
Writs, of Course, brevia de ciirsti, began iemp. Edw. I, 3
i)t consitnili casic, authorized by Second Statute of Westminster, 3
of EUf^it and Fieri Facias, q.v., 2'j, 115, 268
oi Habeas Corpus, q-v., 261
of Subpoena, q.v., 5
Year Books, began Edw. I, 8
CONTENTS OF LECTURES ON THE
FORMS OF ACTION
Lecture I.
Wliy obsolete procedure has importance (p. 295). Maine's phrase 'Substantive
law... secreted in the interstices of procedure ' (295). Until 1830 choice of form of
action will determine the competency of the court, process to make defendant
appear, process in the event of contumacy, whether judgment by default is
possible, forms of pleading (e.g. general issue), mode of trial, form of execution,
punishment of beaten defendant, summary or dilatory nature of procedure (296-
298). Choice of action is made at plaintiff's peril (298). Keynote of form is struck
by writ (299). Modern writ contrasted with old writs {299, 300). Certain forms
of action are given and causes of action must be deduced from them (300).
By 1830 many forms had become obsolete and the whole were overlaid with
fictions (300, 301). Actions were (i) Real, (2) Personal, (3) Mixed (301).
Main steps by which the forms of action were abolished between 1832 and
1875 (301. 302).
Since 1875, Judicature Acts have established a Code of Civil Procedure.
Causes of action can be classified rationally. Forms of action belong to the past
(301-303)-
The forms of action, the original writs, were the means whereby justice became
centralized, whereby the king's courts drew away business from the feudal courts
(304. 305)-
Lecture II.
At the beginning of the 12th century England was a network of local courts
(306). Jurisdiction of the king's courts (306). Gradually increasing idea of the
king's peace (307). Royal jurisdiction on denial of justice (307, 308). Not till
Edward I did the modern theory prevail, that the king's courts were open to all
litigants (308).
Constitution and Procedure of inferior courts. Shire and hundred courts.
Lord's courts. Judgment preceded proof. Proofs are by oath of helpers or
by ordeals, or by battle, God will show the truth (308-310).
Superiority of king's court to local courts. It had professional judges for about
a century before Edw. I (310). Formal modes of proof known; ordeal till 1215,
battle till 1819, wager of law till 1833 ; their unreasonableness only slowly
recognized, but to a great extent the history of forms of action is the history of
devices to evade wager of battle and wager of law and of the procedure which
becomes trial by jury (311). Short account of jury, inquests of Frankish kings,
right to inquest given or sold as a favour (311, 312). Domesday Book. Inquest
becomes a royal prerogative. King's courts have advantages over local courts of
belter procedure and greater power. The jury are impaiiial neighbour- witnesses
(313)-
Forms of Action 409
Lecture III.
Slcetch of tlie order in whicli forms of action developed. Periods ;- (I) 1066-
1154. Litigation still mainly in local courts. King's court has (i) pleas of the
crown, (2) suits between tenants in capite, (3) complaints of default of justice in
lower courts (314, 315)-
(II) 1 1 54-1 189. Reign of Henry II, Glanvill's book. Writs assumed
distinct forms, each begins a particular form of action (315).
1. The Writ of Right. Henry ordained that no man need answer for his
freehold without royal writ (315). A man disseised of his freehold unjustly and
without judgment has action in the king's court (316). This means that all litigation
about freeholds in the local courts must begin by the king's Writ (316, 317).
Breve de recto tenendo orders a lord to do justice (317).
Praecipe quod reddat or praecipe in capite used where the king's court had
jurisdiction (317). Term 'Writ of Right' conies to include both forms (318).
Action by Writ of Right slow and dilatory (318). Essoins (319). Trial by battle
or the 'Grand Assize' i.e., twelve knights (320).
2. The Three Possessory Actions, traceable to Roman interdict (321)-
(a) The Assize of Novel Disseisin (321-323)
{b) The Assize of Mort d'Ancestor (323). Where a man has died seised
as of fee his heir will be put into seisin. Action limited to ' the degrees' (325).
This defect remedied by supplementary actions of Aiel, Besaiel and Cosinage
with more modern procedure (325).
(<:) The Assize of Darrein Presentment. Principle, that he who last
presented to a benefice or his heir should do so again (326).
A fourth assize: — {d) The Assize Utrum to decide whether land was lay
fee or ecclesiastical (326, 327). Later this action changed into 'the parson's
writ of right ' (327).
Certain questions begin to be tried by ' jiirata ' (328). Recognitions (329).
Differences between a 'jurata' and an 'assisa' (329).
Dower : two actions, the Writ of Right of Dower bidding the lord do
justice in his court, and the Writ of Dovirer unde nihil habet brought in the
king's court (330, 331). A third action, the writ of Admeasurement of Dower
(33')-
Action to recover a serf by writ de nativo habendo. Writ de libertate
probanda given to alleged serf calling on the would be lord to prove his case in
the king's court (331).
Personal actions in Glanvill's day are mostly in local courts (332).
Debt or Detinue of chattels, writ similar to Praecipe in capite, little distinction
between ' I own' and ' I am owed.' No jury or grand assize (332).
Gages of land made usually by demise of a term. This gave rise to several
writs. Writ for gagee calling on gagor to pay ; and writ for gagor calling on
gagee to take his money and return the land. This latter (form given) is a
Praecipe for land with a reason and is the forerunner of the writs of Entry (333).
If the tenant says he holds in fee either party can have a ' recognition' to decide
the question 'fee or gage.' But otherwise battle or the grand assize will decide the
main question (333). Certain rules as to scaled charters exist but means of proof
arc not explained (334).
4IO Forms of Action
Lecture IV.
(HI) 1 189-1272. Third Period. Ric, Joh. and Hen. III. Rapid growth of
writs dc ciirsu. Registers formed (335)- Between proprietary and possessory
actions there grow up Writs of Entry alleging some particular flaw in the
tenant's title ; veiy numerous ; originally limited by the ' degrees ' : restriction
abolished by Slat, of Marlborough 1267, creating writs in the posi (336).
Confusion of English real actions due to these writs (337). Until death of
Hen. II all is simple. The proprietary and possessory actions are distinct.
Then come Writs of Entry, extended by 1267 to every flaw in title. They are
possessory in origin but proprietary in working (338). Blackstone thought them
older than the assizes (339)-
Other gaps are filled, writs of Aiel, Besaiel and Cosinage, also new writs
relating to advowsons, wardships and marriages, easements, common rights and
nuisance, frequently two forms— one regarded as proprietary the other as pos-
sessory (340).
Remedies of termors under the new writs. At first termor's sole remedy by
Covenant: recovers the land but only against lessor (341). About 1237 writ
Quare ejecit infra terminum, invented by Raleigh. It gives termor a protected
'possession,' subsequently distinguished from 'seisin.' But it is held to lie only
against persons claiming under the lessor (341).
Personal actions make their appearance. Debt-Detinue, differentiated in the
13th century. In Detinue there is no specific restitution, hence Bracton says there
is no real action for chattels (342).
Replevin for chattels distrained : invented tc-inp. John (342).
Covenant, early 13th century, restricted to the recovery of terms of years
and sealed writing required (342).
Account, appears le»ip. Henry III, a rare action and only against bailiffs
(342)-
Trespass. This is the most important. Instances temp. John, but it became
a writ of course, late tfiup. Henry III. It originates in criminal law (the appeal
of felony) (342). The defendant if found guilty is fined and imprisoned, not merely
amerced. If he will not appear he can be seized or outlawed (343). At first real
'force and arms' probably necessary but later the least wrongful force is held to be
enough (344).
Trial by jury is becoming normal trial for disputed facts and is slowly super-
seding the older forms, but compurgation survives in Eebt and Detinue (344).
(IV) 1272-1307. Fourth i'eriod. The reign of Edward I (344). Period of
Statutory activity. Stat. De Donis gives Formedon in the Descender.
Writs iti consimili casu. The tale of non-statutory actions complete. The king's
courts have come to be omnicompetent, working all civil justice through these
forms of action (346).
Forms of Action 411
Lecture V.
(^1 r307-i8')3- A long period but difficult to break up. Chief interest lies in
development of Trespass (347).
Trespass vi et ariitis common from Edw. I's day. Main varieties (i) assault
and battery, (2) de bonis asporlatts and (3) quare c/ausum /regit. Unlawful force
essential (347). Trespass can protect possession of land (348). Trespass quare
clausum fregit. This writ given to the termor in 15th century (349) ; 'possession
and seisin ' (349). Tenant in Villeinage gets protection ; by end of 1 5th century even
against his lord (349, 350). At end of 14th century action merely gave damages.
Temp. Hen. VII the land itself can be recovered (350). Quare ejecit infra
tenninum not to be confused with Trespass de ejectione Jirinae (351). Latter
becomes Ejectment and is extended by fiction to all claimants of land (351).
Reasons for this (351). Description of the fiction of Ejectment (352, 353).
During Tudor reigns Ejectment supplants the real actions (353). In some cases,
e.g. where entry 'tolled,' Ejectment not available (354). Ejectment was remodelled
by C L. P. Act, 1852, and was in use until 1875 (354, 355).
Personal Actions (355).
Replevin, action for wrongful distraint (355).
Detinue, damages always alternative to return of goods. Hence chattels not
'real' property (355, 356). Ancient and modern views as to property in chattels
(356). Wager of law (357).
Debt, originally purely recuperatory, later used to enforce all contracts for a
fixed sum of money, and all fixed sums due {357). But Debt admits of wager of
law (357).
Account, originally for bailiffs only, superseded by Chancery Bill for account
(357> 35S).
Covenant. Lessee's only remedy at one time ; he recovers the land itself by
the action of covenant real. In 13th century the seal becomes a necessity for
covenant {358).
LECTUf'lE VI.
Trespass, appears about 1250. Vi et ariiiis, contra pacem (359). Trespass
is to (1) land, (2) body, (3) chattels (359). Vanquished defendant in niisericor lia
and liable to capias pro fine (359). Statute of Westminster 11, \\rits in consiinili
casu result in the extension of trespass (359, 360).
Trespass upon the special Case or Case, where the words contra pacem
are left out. P'alls apart during 15th century (360). Slander and Libel and
Negligence and Deceit grow up within Case which becomes a sort of residuary
action (361). Capias pro Jin e abolished (361). Distinction between Case and
Trespass (.^,62).
Assumpsit an offshoot of Case (362), involved the ideas of misfeasance and
deceit (362). Earliest are cases of misfeasance, then of negligence by bailees,
then of breaches of warranty, then of non-feasance and Assumpsit becomes a
separate action (beginning of i6th century) [iGl). Assumpsit then begins to do
the work of Debt. Indebitatus Assumpsit (363, 364). This extended to
implied contract and quasi-contract (364).
412 Forms of Action
Trover (365) ; another branch of Case. Comes into existence about the middle
of 16th century. Action supplanted Detinue (3'')5). Since C. L. P. Act, 1854,
courts have had power to order specific restitution of the chattel. Old option of
paying the value no longer a right of the defendant (365). Thus Trespass and its
offspring, Ejectment, Assumpsit, Trover and Case are substantially the only actions
in common use (365, 366). Replevin still used against a distrainor (366). Account
and Dower practically superseded by Chancery remedies (366).
Lecture VII.
Attempts to classify Actions. Justinian's classifications (367). Do not well
fit the English Actions. Bracton lays down that there is no action in rem for
moveable goods because the possessor has the option of paying damages instead
of giving up the thing. From this distinction come the terms ' Real ' and
' Personal ' property (368, 369). Hence the extension of idea of Tort in England
far beyond the Roman inalejiciuni because it is conceived that all ' personal '
actions must be founded either on contract or tort (369). Mere possession by the
wrong person however honest is held a tort (369). Distribution of all actions
between Contract and Tort never very easy or very successful (369). Position of
Detinue (370). Mesne process is used by Bracton as the test of a real or personal
action (370, 371). In later times however the final result attained becomes the
test (371). Position of Ejectment and Covenant Real (371). The Action for
mesne profits originated in this idea of mere possession, however honest, being a
tort done to the true owner (371, 372).
Past importance of procedure (372). The great text books were treatises on
procedure. Formal decay set in soon after Edward I but a great development of
substantive law was brought about by fictions (372, 373). This is a long process
with two stages, (i) The stage of evasory fiction. Trespass usurps the work of
other actions. Again steps in piocedure are omitted or are feigned (373). Even
the original writ was omitted unless the record had to be made up (373). Capture
of Common Pleas jurisdiction by King's Bench and Exchequer (373)- The King's
Bench fiction, all actions begun by an action of Trespass and the arrest of the
defendant: the Exchequer fiction— the quo minus (373). The reason for this
stealing of business; partly due to the monopoly of Serjeants-at-law in the Com-
mon Pleas (374). The Order of the Coif (374).
(2) End of the forms of action :
The Unification of Process Act, 1832 (374).
3 and 4 Will. IV, c. 36 abolishing Real and Mixed Actions (374).
,, ,1 c. 42 ,, wager of law (374).
The Common Law Procedure Act, 1852. No form of action was thenceforward
to be mentioned in the writ (374).
The Judicature Acts. Forms of action are finally abolished (375), this results
in greater clearness of exposition, greater attention to the real substance of the law
itself (375).
CAMBRIDGE: PRINTLD BY JOHN CLAY, M.A. AT THE UNIVERSITY PRESS.
^10
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