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A selection of leading cases in equity, with notes (Volume 1) online

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In case of a judicial separation, ib.
Protecting order does not protect property acquired by immoral

practices by wife, ib.
Married woman with protecting order may sue in tort, 578



1068 INDEX.

SEPAKATE VSY.— continued.

Order, how drawn iip, 578

Wife may afterwards obtain payment of money in Court, 579

or from trustee?, ib.

Though settled without power of anticipation, ib.

Effect of order when -wife is executrix, ib.

Order is retrospective, ib.

Effect of discharge of order, ih.

"What constitutes desertion on the part of the husband, ib.

Irish Act, ih.

Statutor)'^ extension of the equitable doctrine of separate use by tlie
Married Woman's Property Act, 187(1, 579

As to wages and earnings of a married woman, 580

Personal property coming to her as next of kin, t6.

Money not exceeding £20{) under any deed or will, when, ib.

Keal property descending to her as lieiress or cu-l]eires>, tV».

Investments may be made l>y her to her separate use in Government
annuities, 581

In savings banks, ib.

Public stocks and funds, ib.

In incorporated or joint-stock companies, 582

In industrial, provident, friendly, benelit, building, and loan socie-
ties, 583

No validity given "to any deposit or investment in fraud of husband's
creditors, ib.

Policies of assurance may be effected by married woman for her sepa-
rate use on the life of herself or her husband, ib.

Policy of insurance by married man to inure to the benefit of liis
wife for her separate use, when, 5^3, 584

Questions between husband and wife as to property dechired by the
Act to be her separate property how to be decided, ib.

Action by married woman for the recover)' of wages, Ciimings, money,
and property, 585

Husband how far liable for debts of his wife contracted dum sola,
585, 586, 587

Wife liable to be sued for, and her separate property liable to satisfy
the same, 585

Whether she is liable to be made bankrupt, ib.

Separate property of married woman liable to maintain husband
chargeable to any union or parish, 587

And her children as tliough she were a widow, ib.

Husband not relieved from present liability, ib.
See Parapherxalia — Pin Money,
SEPARATION,

Agreement for, between husband, when decreed to be specifi&illy per-
formed, 877, 878
SET OFF,

Executor or administrator of creditor cannot set off debt of husband
to estate against wife's eipiity to a settlement out of a legacy, 4S8
See Equitv tu a Settlement,



INDEX. 1009

SETTLEMENT,

Rectification of, 40. See Executed and Execctory Trusts.
Equity of wile to, 485. Hce Equity to a Settlement.

SHELLEY'S CASE,

Rule of, how far applicaLle to executory trusts, 21, 28. See Executed
AND Executory Trusts.

SOLICITOR

Couducting sale cannot purchase, 162

Has no general authority to consent to a purchase by trustee from his

cestui que trust, 167
Employed to purchase accountable for profits, 177

sell under decree cannot purchase, ib.
Intervening for parties interested in sale under a decree cannot

purchase, 177, 178, 179, 180
Solicitor to commission cannot purchase the debts of the bankrupt

for his own benefit, 182
Solicitor may purchase from his client, but he must prove that the

transaction was fair, 183
And the payment of the purchase-money though receipt is endorsed

on deed, ib.
Rule laid down hj Lord Eldon, ib.

Intervention of another solicitor should be insisted on, 184
Rule not applicable if the solicitor does not act in hac re, when, ib.
Purchase by, from client, when sustained, ib.
In a fair transaction a solicitor may file a bill against his client for

specific performance, ib.
Or third parties, ib.
If a solicitor who has ceased to act has acquired knowledge at the

expense of his former client, he cannot sustaia a j)Ui'chase, 185
Unless he has communicated it to him, ib.
May take a mortgage for what is due to him, ib.
Purchasing lease and preparing it himself, bound to indemnify the

vendor against rent and covenants, when proper covenants are not

inserted in the agreement, 1 86. See Advancemext.
Clerk of, if consulted by mortgagor cannot purchase up mortgage for his

own benefit ib.

SPECIFIC DELIVERY UP OF CHATTELS. See Chattels-Deeds.
When decreed, 892

SPECIFIC PERFORMANCE OF AGREEMENTS,

Jurisdiction of Equity to compel, 856

Must be founded on valuable consideration, ib.

1. As to contracts relating to real and i)trsonal propertij.

Relative to real property, if unobjectionable, decreed as of course

where Statute of Frauds is complied with, ib.
Because the award of damages would not afford adequate compensa-

tion, ib.



1070 INDEX.

SPECIFIC PERFORMANCE OF AGREEMENTS— c<mhnu«?.

Specific performance of agreements relating to personal chattels when

not decreed, 856
Not decreed when damages at law afford an adequate compensation,

853, 854. See Statute of Frauds— Part Performance.
As in the case of contract to buy stock, 854

com, ib.
hops, ih.
coals, 855, 856
Decreed where damages at law cannot be correctly estimated, 856
Or will not furnish a complete remedy, ib.
As in the case of a contract to deliver so much iron, &c., for a certain

number of years by instalments, ih.
Or to purchase timVier growing in a convenient locality, ib.
Or a contract to clear timber olf land, ib.
To purchase stone, part of a bridge, ib.
To purchase articles of vertu, ih.
To purchase delits proved under a bankruptcy, 8.'>7
And vendor may file a bill as well as the purchaser, ib.
Of contract to purchase an annuity, 857, 858
Of contract to purchase a patent, 858
But where commodities fluctuate in price, parties must be active in

insisting on, ih.
Contract enforced on behalf of vendor for price of land in onlinary

cases, ih.
"When land taken by a railway, ih.

When contract by railway to take land is complete, 858, 859
Trust attaching to personal chattels always enforced, 859
Specific perfurnumce decreed of contract to purcliase Neapolitan stock,

SCO

railway shares, ib.
Shares in a joint-stock company, when, c^iW
To accept transfers of shares not decreed where directors under power

refuse to register purchaser's name, ih.
Unless the refusal be wanton, ih.

Yendor may be trustee of such shares for the purchaser, ih.
To accept transfer of railway shares on which nothing has been paid

enforced, ih.
Purchaser to pay calls and indemnify vendor, when, ib.
Not decreed where the purchase was of mere "scrip certificates," 861
Of agreement to accept shares in joint stock company decreetl, when, ib.
Although call may have l)een made by the company upon shareholders,

862
Secus, where a person has purchased in ignorance of a winding-up

order, ih.
Or where purchaser's name cannot be put on the register, ih.
Discretion of directors to forfeit shares for non-paynu>nt of calls, k63
Contracts for sale of shares in joint-stock l)anking comiianies must set

forth numbers, ih.
Liability of a jobber purchasing shares, ih.



INDEX. 1071

SPECIFIC PERFORMANCE OF AGREEMENTS— eowh'nwerf.
Must accept tlio sliares liiniself and indemnify the vendor, 863
Or liirnisli names of transferees to vendor, ib.

Jobber liable unless there is a complete novation of the original con-
tract, ib.
Not liable where transferees' names are registered, 864
Unless the name given be that of an infant, ib.
A non-existent person, 865
A lunatic, ib.
A married woman, ib.

A person whose name has been given without authority, ib.
Person giving name bound to indemnify jobber, ib.
After execution of transfer vendor may file a bill against the transferee

to register and indemnify him, ib.
Although by accident transfer sent for registration after the company

had stopped payment, 865, 866
Presumption that directors would not refuse to register, 866
Specific performance decreed against purchaser of shares from the actual

purchaser, when, ib.
To lend not decreed, ib.
Nor of agreements to borrow, ib.
Or to pay, ib.

Of agreement to execute a mortgage for money due decreed, ib.
To execute a bill of sale of chattels, ib.
As to chattels, upon the gruimd of the inequality of the parties resisted,

867
Not decreed where defendant has nothing to deliver, ib.
Nor as to British ships, 867, 868, 869
Distinction taken as to proceeds of British ships, 869
And in the case of fraud, 870

Re-transfer of ship to rightful owner when compelled, ib.
No action lies on executory contract for sale, &c., of ship without recital

therein of the certificate of registry, ib.
Mortgage on ship cannot be revived after a discharge of mortgage duly

registered, ib.
Though discharge given by mistake, ib.
Agreement by a foreigner to sell a foreign ship errforced, ib.
Specific delivery of goods sold enforced at law, ib.
Equitable defence may be set up at law, ib.
Old Court of Bankruptcy had no jurisdiction to compel, S71
Query as to the new Court, ib.
2. As to contracts relating ta personal acts.
Contract to do works not in general enforced, ib.
To build or repair, ib.
To make a railway, ib.
To work quarries, ib.

coal mine, ib.
To make good gravel -pit, ib.
Contract to build or repair enforced if incidental to other contracts,

when, ib.



1072 INDEX.

SPECIFIC PEEFORMANCE OF AGREEMENTS— coH<2nw€rf.

When agreement for building defined, 872

Not where agreement is for house of certain value, ib.

To do defined work upon a man's own property, ib.

Injunction against continuing to keep out of repair, 873

To build more readily granted where defendant is in possessioD, ib.

Where there have been acts of part f)erformance, ib.

Decreed against railway company notwithstanding inconvenience to the
public, 873, 874

Not allowed to set up the defence of ultra vires, 874

Theii- own delay, ib.

The absence of the Attorney General, 874

Damages instead of specific performance awanled, when, v

To enter into partnership not ordinarily decreed, 875

Exception where status of parties ought to be determined, 876

Where there have been acts of part i>erformance to enter into partner-
ship for a term, ib.

Secus, where cai)ital is undefined, ib.

Or no term fixed, ib.

To grant lease not decreed when lessor might enter for breach of cove-
nant, ib.

Nor of tenancy for a year, ib.

Of hiring not decreed, ib.

Nor of agency, 877

For sale of goodwill, when, ib.

Of business of attorney, ib.

Agreements of separation between husband and wife, when, 877, 878

Of covenant to refer to arbitration not decri-ed, 878

Court of E(|uity will not entertain jurisdiction when there i« an agree-
ment to refer under the Common Law ProcL-ilure Act, 878, 879, 880

To sell at price to be fixed by valuers or arbitmtors, when decreed, 880,
881, 882

Effect of plaintift''s inequitable refusal to submit to arbitrator, 882

Of award when decreed, 882, 883

3. Specific performance conipclhd by injunction.

Not to do certain acts enforced by injunction, 883

As from ringing a bell, ib.

Carrying on a trade, ib.

Allowing sale of certain goods, 884

Acting on the stage, ib.

Erecting buildings, or buildings above a certain height, ib.

Making applications to Parliament, ib.

Piimning trains past a station, ib.

Injunction not granted compelling continuous employment for an in-
definite time, ib.

Or to restrain act ancillary to an agreement of which the Court would
not decree specific performance, 885

Or to restrain act contrary to agreement broken by plaintiff, 886
4. Extension of jurisdicfion by Statute.

Power of the Court to award damages under Lord Cairns' Act, t6.



INDEX.



1073



SPECIFIC PERFORMANCE OF AGREEMENTS- coji^mwetZ.

Act is not retrospective, 886

Does not apply to cases where there is a plain remedy at law, ib.

Equity can only award damages where it can decree specilic perform-
ance, 887, 888

Not awarded if plaintiff has done acts to disentitle him to specific per-
formance, 888

Power to give damages discretionary, ib.

Object of Lord Cairns' Act, ib.

Does not diminish the rights of suitors, ib.

Mr. Bolt's Act, ib.

For leases may be decreed by the County Court, 889

Assigned to the Chancery Division, how far, ib.

Transferred from other Divisions to, when, ib.

STATUTE OF FRAUDS.

Contract taken out of, by fraud, 843

Not merely when it was part of the agreement that it should not be put

into writing, ib.
Not allowed to cover frauds, ib.

See Part Performance of Agreement — Equitable Mortgage

BY Deposit of Title Deeds — Secret Trust.
Resulting trusts excepted from, 233. See Resulting Trusts.

STEWARD,

Whether he can take a lease from his employer, 171

STOCKBROKER,

Sales to and purchases from his employer set aside, 176. See Spech'io
Performance.

SURETIES,

Contribution between, 112

Enforced at law and in equity, ib.

But the relief in many cases was more complete in equity than at

law, ib.
As where the sureties were numerous, ib.
Where one surety was insolvent, and another paid the debt, ib.
Where one died, and the surviving surety paid the whole debt, 113
Rules of equity must now prevail under the Judicature Acts, ib.
Contribution may be enforced, whether sureties are jointly or severally,

or jointly and severally bound, by the same instrument, ib.
Or by different instruments, if they are sureties for the same principal

and the same engagement, ib.
And although a surety was ignorant that there were co-sureties, ib.
But there will be no contribution where the suretyship of each, by

different instruments, is for distinct portions of the same debt, 1 14.
A surety can in equity claim interest from his co-sureties for the money

which he has paid, ib.
Liability of surety may be limited by contract, ib.
As that he himself and other sureties should pay respective shares, ib.
Or that he should pay only on default of principal or other sureties, ib.

VOL. I. 3 z



1074 INDEX.

SIj TtETlES— continued.

Surety who has paid the debt is entitled to all securities taken l.y

his co-sureties from the piinciijal debtor, 115. See Principal and

Surety.
Can only claim from principal what they have actually paid for debt,

122, 181

SURRENDER OF COPYHOLDS

To the use of wills, when supplied, 255
Rendered unnecessary by statute, 256

Surrenders in the case of a deed not supplicil, when voluntary, 256
Secus, where it is supported by valualile consideration, i/<. Ste
Defective Execution of Power.

TACKING

Of mortgages, doctrine as to, 662

Mortgagee without notice may protect himself from any intennediate

incumbrance, by jiurchasing in the first, ih.
Principle of the do( trine exjdaincd by Lr»rd Ifarditicke, ib.
Immaterial that second mortj^age is in the form of a trust, 664
Third mortgagee may buy in the first, pendente lite, ib.
But he loses his priority if he pjirt-* with legal estate upon a sale, ib.
Notice of second mortgage to the first mortgagee is immaterial if thinl

advanced his money without notice, 665
Mortgagee advancing money without notice of a concealed trust may

tack, when, ib.
May tack legal estate in respect of unsatisfied charges, when, 666
Not in respect of satisfied charge or a sjitisfied term, when, ib.
Semble, puisne equitable mortgagee cannot giun priority by taking

legal estate from the mortgagee, ib.
No priority gained by obtaining legal estate with notice of trust, 667
Trustee by conveying legal estate without value cannot deprive cestui

que trust of his rights, when, ib.
Puisne incumbrancer caimot tack after a decree to settle prioritie««, ib.
Nor can a prior mortgagee who tiikes assignment of a thiitl as trustee

for another, 668
Secus, where he has a beneficial interest in the trust, ib.
Judgment creditor, or creditor by statute or recogniziince, buying in

the first mortgage, cannot tack, ib.
Nor in any other case where a person does not advance his money upon

the faith of the real estate, 669
Semble, judgment creditor cannot t;\ck even since 1 & 2 Vict c.

110, ib.
Opinion in Fisher on Mc>rtgagos, GG9, 670
First mortgagee advancing a further sum upon a statute or judgment

without notice may tack, 670
A fortiori, if he make an advance upon a mortgage, ib.
Advance must be without notice of an intermediate incumbrance, ib.
Secus, where mortgage is paid oil before judgment is recovered, ib.
Subsequent mortgagee cannot tack if he advances his money with notice
of a prior incumbrance, ib.



INDF.X. 1075

TACK^-SG— continued.

Even where he was also first mortgagee upon a mortgage made to

secure a sum and further advances, 670, 671, 672
And though all securities, with the knowledge of all parties, were

granted on the same day, 672.
Form of second mortgage suggested for rendering further advances ut

first mortgagee secure, 673
First mortgagee's advance, without notice of second mortgage, has

priority, ib.
Though he may have renewed Bill of Exchange given for advance, ib.
Debt when pendente Ute cannot be tacked, ib.
"Where the legal estate is outstanding, all the incumbrances are paid

according to jiriority in point of time, ib.
Incumbrancer having the best right to the legal estate, Avill be in the

same state as if he had it, ib.
As when he has a declaration of trust in his favour, ib.
Or has possession of title deeds, ib.
Or obtains legal estate after advance in pursuance of a prior agreement,

674
Priority obtained by registration under 7 Anne, c. 20, ib.
Mortgagee has a right to consolidate or tack all his mortgages in

redemption or foreclosure suits, 674, 675
Mortgagor must redeem all mortgages, ib.
As must a purchaser of the equity of redemption, 675
And mortgagee, ib.

Immaterial when consolidation of mortgages took place, ib.
Or whether purchaser or mortgagee had notice, ib.
Rule applicable to equitable mortgages, ib.

To mortgages of equitable personalty by way of trusts for sale, ib.
Immaterial that mortgages are held by the same person, ib.
Or in trust for the same person, ib.

Tacking by third mortgagee of one estate, taking transfer of first mort-
gage comprising the same and another estate, ib.
Ey transferee of distinct mortgages of two estates against second mort-
gagee of both, ib.
Eight of purchasers of the equity of redemption of property when a

mortgagee has consolidated mortgages, 675, 676
When the purchasers take under different deeds, ib.
Under the same deeds, 676
Principle on which the cases proceed stated bv Lord Hatherley, C, 676,

677
Semble, not applicable where second of two first mortgages was not in

existence when subsequent mortgages made, 677
Eight of mortgagee to tack on bankruptcy of mortgagor, ib.
Mortgagee purchasing equity of redemption, with notice of subsequent

incumbrances, takes subject to them, 678
Unless he keep prior mortgages on foot to protect the estate, ib.
As to the nature of statutes and recognizances, ib.
Attempt to abolish tacking by Vendor and Purchaser Act, s. 7, ib.
Repeal of that section by the Laud Transfer Act, 1S75, ib.

3 z 2



107G INDEX.

TACKI'SG—contiimed.

Mortgagee's right to tack debts not being a lien on the mortgaged pro-
perty, 678
As against the heir of the mortgagor, 679
Or his de\'isee, ih.

In the case of specialty debts, -when, ib.
Simple contract dehts, ib.

In the case of a mortgage of personalty as against, when, ib.
Not allowed as against the mortgagor, ib.
Or his creditors, ib.
Assignees for value, ib.

His devisees in trust for paj-ing his debts, ih.
Parties entitled under a charge for l»aying his debts, ib.
The assignee of his heir, ib.
His executor, ib.
Or devisee, ib.

Or mesne incumbrancers, ih.
Reason of doctrine, ih.
What arrears of interest may be claimed by mortgagee tacking, 679, 680

TENANCY IN COMMON. See Joint Purchasers— Joint Tenancy.

TENANT FOR LIFE

May purchase, or take in exchange, lands from trustees with power to

sell and exchange, with his consent, 187
With power to lease, may grant lease to trustee for himself, when, ib.
Trustee, although tenant for life, can make a good title, when, 188
Renewal of lease by, 50, 51, 52. Sa Constructive Trusts — Waste.

TENANTS BY ENTIRETIES,

E(|uity of a married woman to a settlement, or maintenance out of pro-
perty of which she and her husband are, 515

But payment to a husband of a fund to which he and his wife are
entitled by entireties good, when, 516. Sec Equity to a Settlk-

MENT.

TENANT IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT,
Cannot commit equitable waste, 811. See Waste.

TIMBER. See Waste.

TORTS

Of a married woman do not render her separate estate liable, 547, 548
Married woman with protecting order may sue in respect of, 578

TRUSTEE,

Renewal of lease by, 47. See Constructive Trust.

Purchase by a trustee for sale will be set aside, although an adequate

price be given, 156, 157, 158
Or by a third person for him, 158
Although the sale be by auction, ib.



INDEX. 1077

TRUSTEE— continued.
Or by co-trustees, 158

Although trustee has retired from trust, when, 159
Or sale is before the Master, ib.
Or by assignees in bankruptcy, ib.
Or by trustee as agent for another, ib.
Eeceiver cannot purchase, ib.
Nor agent employed by, in managing sale, ih.
Purchase by trustee after sale to bona fide purchaser valid, ib.
Director of a company cannot purchase shares from chairman, wlien,

ib.
Must account to company for profits made by dealings with it, ib.
As also must the firm in which he is a partner, when, 159, 160
Directors of a company cannot receive money to purchase qualification

shares from proposed vendors, 160, 161
Not liable to be put on the list of contributories when they received

fully paid-up shares from proposed vendors, 161, 162
But liable to the company for a breach of trust, ib.
May receive compensation for loss of ofiice from a duly called meeting

of the company, 162
Secret stipulation by directors negotiating an amalgamation of com-
panies set aside, when, ib.
Mortgagee or annuitant wdth powers of sale cannot, either directly or

indirectly, purchase the mortgaged estate, 162, 163
Except by express authority of the owner, 163
Nor can solicitor conducting sale, ib.

Mortgagee may purchase equity of redemption from mortgagor, ib.
Or fi'om prior mortgagee selling under power, ib.
Though mortgagee purchasing has a trust for sale, ib.
But trustee for sale cannot purchase, ib.
Tnmsactions between mortgagee and mortgagor viewed with jealousy,

ib.
Onus of, showing fairness of a conveyance thrown upon mortgagee,

when, ib.
Lease from mortgagor to mortgagee, ib.
Trustee who has become mortgagee of property cannot foreclose, 163,

164
Whether trustee can advance money on mortgage of a charity property,

164, 165
SiU'viving partner can purcliase share of deceased partner from repre-
sentatives, 165
Residuary legatee may purchase a share of another, ib.
Trustee cannot take a lease from himseK, ib.
AVhen authorised to do so removed from his office, ib.
Nor can governors or trustees of a charity, ib.
Or insert a stipulation for their own benefit in a lease, ib.
Nor can member of a corporation taking a lease of corporate propertv

166
But a trustee can purchase from a cestui que trust who is sui juris, and

has di.->charged him from the trust, ib.



1078 INDEX.

T:B,\JS>TEE— continued.

If there is no fraud, concealment, or advantage taken by the trustee, of
information acquired as trustee, 166

Solicitor has no general authority to consent to purchase by trustee,
167

A trustee who has disclaimed without acting may purchase, ib.

As may a mere trustee to preserve contingent remainders, ib.

So trustees may purchase property of trust from Lords Commissioners
acting vmder statutes for redemption of land tax, ib.

A trustee for infants, or persons under disabilities, cannot purchase
trust estates, except by leave of the Court, ib.

Leave refused to confirm lease to a committee of a lunatic's estate,
168

Though approved of by the Master, ib.

May deal with cestui ([ue trust in subject unaffected by trust, t/>.

Trustee of a creditor's deed buyiug property at an midervalue, 183

Semblc, jurisdiction to set aside deed is in bankruptcy, ili.

How far trustee can deal with his relations in respect of the trust jiro-
perty, 191

The Sale of Land by Auction Act not a bar to sale by order of the
Court being set aside, when, 11)2

Terms upon which relief will be granted against trustees or others, ib.

When the property remains in their hands unsold, ib.

When it has been resold, V.)4

Costs, ib.

Acquiescence, ib.

Confirmation, 196. Si.c Administrator— Auknt—Arritrator — As-
signees OF A Bankrupt — IJarrister — Uishup — Commissioner in
Bankruptcy — Commissioner under Inci.osure Act — Construc-



Online LibraryFrederick Thomas WhiteA selection of leading cases in equity, with notes (Volume 1) → online text (page 118 of 124)