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A selection of leading cases in equity, with notes (Volume 2) online

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ought to have taken all due pains
to inform himself." His Honor
afterwards mentioned a late in-
stance in Ireland of a person who,
after having paid some instalments
on a loan, neglected to make a
further payment, and forfeited the
instalments he had paid. He
petitioned Parliament for relief,
but without success. With refer-
ence to this case, Mr. Eden, in his
work on Injunctions, p. 22, note (b) ,
observes that there is a case in
the Hargrave MSS., in which
Lord Harcourt relieved a member
of a benefit society against a for-
feiture incurred by neglecting to
pay the weekly instalments ; but
that the reasoning of Sir W. Grant
is so conclusive and satisfactory,
that it is probable, if the question
should ever be agitated again, that
his decision would be adhered to.
See Prendergast v. Turton, 1 Y. &
C. C. C. 98, 110, 111, 112 ; Nmj-
lor V. South Devon Railway Com-
pany, 1 De G. & Sm. 32 ; Sudlotv
V. The Dutch Rhenish Railway
Com'pany, 21 Beav. 43.

The result of a forfeiture of
shares may relieve the shareholder
from being a contributory {Wool-
laston's case, 4 De G. & Jo. 437 ;
Marshall v. Glamorgan Iron Com-
imny, 7 L. E. Eq. 129; In re

Cohre Copper Mine Company, 9
L. E. Eq. 107), but not if the
shares were forfeited by the
directors ultra vires {Spackman
V. Evans, 8 L. E. Ho. Lo. 171 ;
and see Lord Belhaven's Case, 3
De G. J. & S. 41 ; Stanhojye's
case, 1 L. E. Ch. App. 161 ;
Dixon's case, 5 L. E. Ch. App.
79) : or were fraudulently for-
feited not for the benefit of the
company but for the purpose of
relieving the shareholder from
liabilities : Richmond's case and
Painter's case, 4 K. & J. 305.

As to the liability of past mem-
bers of companies in respect of
shares extinguished by forfeiture.
See In re The Blakeley Ordnance
Company, Creyke's case, 5 L. E.
Ch. App. 63 ; Bridgets case and
NeilVs case, 4 L. E. Ch. App. 266.

Where a company authorised
to buy land for purposes beneficial
to the public enters into a contract
with a landowner that if a por-
tion of the purchase-money, which
the company is to pay him, re-
mains unpaid on a particular day,
he shall be entitled to take back
the land with all the works which
have been executed upon it by the
Company, such contract would, it
seems, be void as ultra vires, un-
less it could be construed as a mere
penalty which could be relieved
against in equity. In re Dagen-
ham (Thames) Dock Company,
Ex parte Hulse, 8 L. E. Ch. App.

Where there is no clause in the
deed of a Joint Stock Company



conferring on the directors a gene-
ral power to forfeit shares, they
have no implied power to do so :
In re The National Patent Steam
Fuel Compamj, 7 W. K. (V. C.
K.) 369.

And the power of co -adventurers
to forfeit the shares of one of their
number for non-payment of calls,
is not necessarily incident to a
mining adventure conducted on
the cost-book prmciple : Clarke v.
Hart, 6 Ho. Lo. Ca. 633.

Where such power exists by
agreement between the parties, it
is to be treated as strictissimi
juris, like a jDower of forfeiture
with respect to an estate, and the
forms to be observed in declaring
the forfeiture must be strictly fol-
lowed (Ih.). And where an agree-
ment to work mines on the cost-
book principle has been entered
into by several persons, the written
statement of one of them (made
subsequently to the date of the
agreement) that his shares are
liable to forfeiture, on non-pay-
ment of caUs, will not affect his
rights under the agreement : lb.

A resolution of forfeiture by
dii'ectors must be passed accord-
ing to the terms of the articles,
otherwise it will be invalid. Thus
where, according to the articles of
association, no shares could be
forfeited except by a resolution
passed by all the directors, a
resolution passed by four out of
five will be illegal : Goulton v. Lon-
don Architectural Brick and Tile
Compamj, W. N. 1877, p. 141. So

a resolution of directors declaring
shares of a shareholder forfeited
for non-pajauent of calls will be
invalid, if the notice to the share-
holder claim interest from the day
of the call instead of fi'om the day
fixed for its payment by clause 6,
table A, of the Companies Act,
1862 (clauses 16, 17) : Johnson v.
Lijttle's Iron Agency, W. R. 1877,
p. 78.

Mere laches, moreover, do not
disentitle the holder of shares to
equitable relief against an invalid
declaration of forfeiture : The Gar-
den Gully United Quartz Mining
Company v. M' Lister, 1 Ajjp. Cas.

The principle applicable to
cases of contract between the
parties, is not applicable to the
provisions of an Act of Parliament
or conditions in law. For al-
though, as we have seen, in cases
of contract between parties, equit}''
will often relieve against penalties
and forfeitures, where compensa-
tion can be granted, rehef against
the provisions of a statute can
never be given : Keating v. Spar-
row, 1 BaU & B. 367, 373, 374 ;
In re Brain, 18 L. R. Eq. 389, 410.

Thus penalties imposed by a
Benefit Building Society, in ac-
cordance with their rules under
the Friendly Societies Act (6 & 7
Will. 4, c. 32), could not be re-
lieved against in equity, nor can
a borrowing member redeem a
mortgage to the society without
paying the fines which he has in-
cmi'ed {Parker v. Batcher, 3 L.



E, Eq. 762) ; but the fines, accord-
ing to the terms of the Act, must
be reasonable, otherwise they can-
not be enforced. See Lovejoy v.
Mulkern, W. R. 1877, p. 127,
varying S. C. p. 74; Parker v.
Butcher, 3 L. R. Eq. 762; Pilking-
ton V. Baker, W. R. 1877, p. 210.

IV. Hov: far accident, fraud,
surprise, or acquiescence are suf-
ficient to prevent a party from
taking advantage of a forfeiture.]
— If, either, by unavoidable ac-
cident, by fraud, by surprise, or
ignorance not wilful, parties might
have been prevented from execu-
ting a covenant literally, a Court of
equity would interfere, and, upon
compensation being made, the
party having done everything in
his power, and being prevented by
the means alluded to, would give
relief: (per Lord Alvanley, M. R.,
in Eaton v. Lyon, 3 Ves. 693 ;)
because, although at law a cove-
nant must be strictly and literally
performed, in equity it would suffice
if it were really and substantially
performed according to the true
intent and meaning of the parties,
so far as circumstances would ad-
mit. And see Hill v. Barclay,
18 Ves. 62, where Lord Eldon
expressly guards his observations,
which are strongly against relief
being granted in ordinary cases,
from being taken to apply to cases
of accident and surprise; the eifect
of the weather, for instance, in
that case, or permissive want of
repair, the landlord standing by

and looking on. See Hannam v.
South London Waterworks Com-
pany, 2 Mer. 61 ; Bamford v.
Creasy, 3 Giff. 675; Meek v. Carter,
6 W. R. (V. C. S.) 852; Burke y.
Prior, 15 Ir. Ch. Rep. 106. And
equity would relieve a lessee
against forfeiture for a breach of
a covenant to repair, when the
landlord has by his conduct mis-
led the lessee into supposing that
the covenant would not be in-
sisted on. Hughes v. The Metro-
politan Railway Company, 1 C.
P. D. 120.

In Bargent v. Thompson, 4 GifF.
473, where a lessor brought eject-
ment for breach of covenant to
repair within three months after
notice, it aj)pearing that out of
twenty-two items twenty had been
proceeded with and fourteen com-
pleted, that the works had been
partially delayed by the weather,
and that no further remonstrance
had been made by the lessors,
Sir J. Stuart, V. C, restrained
the action, and directed an inquiry
whether the covenants had been

A breach, however, of a cove-
nant to repair w'as not excused
because the covenantor had bond
fide employed persons to repair,
who neglected to make them, for
as the covenantor's agents had in
fact not repaired, the breach w-as
not such as equity would relieve
against : Nokes v. Gibbon, 3 Drew.

A party entitled to take advan-
tage of a forfeiture, w'ould not be

4 D



allowed to do so when the act of
forfeiture was committed in re-
liance upon the assurances of an
agent of such party. See Wing v.
Harvey, 5 De G. Mac. & G. 2G5.
There a life policy was subject to
a condition, making it void if the
assured went beyond the limits of
Europe without licence. An as-
signee of the policy, on jiaying
the premium to a local agent of
the Assurance Society, at the
place where the assurance had
been effected, informed him that
the assured was resident in Ca-
nada. The agent stated that this
would not avoid the policy, and
received the premiums till the
assured died. It was held, by
the Lords Justices, that the so-
ciety was precluded from insist-
ing on the forfeiture. See also
Duke of Beaufort v. Nceld, 12 C.
& R 248.

But although relief might be ob-
tained in equity against a forfeiture
where a person incurring it had
been misled by the person legally
entitled to insist upon it, a subse-
quent distinct forfeiture, where no
such excuse could be alleged,
might be taken advantage of, as
the Court would have no ground
for its interference. Thus, al-
though relief might be had in
equity against a forfeiture of a
lease during a period when the
landlord dealt with the tenant so
as to lead him to suppose the for-
feiture would not be insisted on,
if a subsequent forfeiture was in-
curred after such dealings had

ceased, tlic prior transaction would
raise no equity for relief: Flattery
v. Anderdon, 12 Ir. Eq. Rep. 218.

In the case of a kmatic's estate,
relief will be given to a tenant who
has incurred a forfeiture, if it were
beneficial to the lunatic not to in-
sist upon it. Thus, in Ex parte
Vaughan, T. & R. 434, the tenant
of a lunatic's estate upon petition
was relieved against an ejectment
brouglit by the committee, founded
on a forfeiture, b}' breach of cove-
nant to repair. Pitt v. Reynolds
was cited against the petition. But
Lord Kldoti said, that there were
forfeitures arising from breaches
of covenant against which Courts
of equit}' could not relieve, but
which a judicious landlord would
not take advantage of. The case
which had been cited would not
apply if the question was, whether
that were a case in which the land-
lord, acting for himself, would
not have taken advantage of the
forfeiture ; and that care must be
taken not to get rid of a good
tenant by being too strict.

And even at law, long acquies-
cence in a breach of covenant, as
for instance not to appl}' a house
to purposes of trade, will raise a
presumption of a licence so to
use it, that the lessor cannot in-
sist upon his right to a forfeiture :
Gibson v. Doag, 6 W. R. Ex. 107;
Whitehead v. Bennett, 9 W. R.
(V. C. K.) 626 ; Page v. Bennett,
6 Jur. N. S. 419.

V. Waiver of Jojfeiture.] — The



right to insist upon a forfeitvire
might be waived at law {Croft
V. Lumleij, 5 Ell. & Bl. 648;
Att.-Gcn. of Victoria v. Etter-
shank, 6 L. R. P. C. 354, 368 ;
Walrond v. Hawkins, 10 L. R.
C. P. 342), as well as in equity
(Bridges v. Longman, 24 Beav.
27), by the acceptance of rent
after the forfeiture was incurred
(Price V. Wonvood, 4 H. & N.
516), even although the landlord
when the rent was tendered took
it not as rent but as compensa-
tion for use and occupation sub-
sequent to the forfeiture. See
Croft V. Lumley, 5 Ell. & Bl. 648:
there, after all the forfeitures had
been incurred, the time having
come when the rent would be-
come due, the lessee tendered the
rent to the lessor. He refused to
take it except on the terms that
it should be taken not as rent,
but as compensation for use and
occupation subsequent to the
forfeiture. The lessee refused to
agree to an}'^ such condition ; the
lessor then took the money, de-
claring he would not take it as
rent, or as waiving the forfeitures.
It was held by the Court of
Queen's Bench, that in legal
effect money must be taken ac-
cording to the intent of the
party paying it — in this case as
rent, — and that the receipt of rent,
as a matter of law, operated as
a waiver of all forfeitures then
known to the lessor, and that no
protest on his part could prevent
this legal effect; and, moreover,

that the lessor must be taken to
waive all forfeitures by that breach
of which he had notice, although
it was more extensive than he was
aware of.

Where, moreover, a landlord
brings an action of ejectment for
a forfeiture, he unequivocally
treats his tenant as a trespasser,
and a subsequent distress for rent
will not affirm the tenancy or waive
the breaches in respect of which
the forfeiture had taken place :
Grimwood v. Moss, 7 L. R. C. P.

Where there was in a lease a
general covenant to repair, and a
covenant to repair within a certain
period after notice, a notice to re-
pair within a certain period might
be a waiver of the forfeiture in-
curred by a breach of the general
covenant to repair (Doe d. More-
craft V. Meux, 4 B. & C. 606);
secus, when the notice was to re-
pair forthwith (Roe d. Goatly v.
Paine, 2 Camp. 520), or in ac-
cordance with the covenants of
the lease : Few v. Perkins, 2 L. R.
Ex. 92.

The mere claim, however, of
forfeiture by reason of the non-
payment of rent, did not of itself
preclude the plaintiff from relying
on a previous forfeiture : Tole-
man v. Porthury, 5 L. R. Q. B.
288 ; 7 L. R. Q. B. (Exch. Ch.) 344.

VI. As to the extension to all

the Courts of the doctrines of

equity with respect to forfeitures

and penalties.'] — By the Judica-

4 D 2



ture Act, 1873 (36 & 37 Vict. c.
66) it is enacted " that stipulations
in contracts, as to time or other-
ivise, which woukl not before the
passing of this Act {i. e., its com-
mencement, i. e., 1st November,
1875) have been deemed to be or
to have become, of the essence
of such contracts in a Court of
Equity, shall receive in all Courts
the same construction and effect
as they would have heretofore re-
ceived in equity, sect. 25, sub-
sect. 7." Under the expression
"or otherwise," is involved the
doctrine of equity as to relief
against forfeitures and penalties,
and other cases in which Courts
of equity would relieve against a

penalty or forfeiture, while de-
creeing compensation instead
thereof. Trower on Prevalence
of J<l(puty, p. 70.

The expression seems some-
what a slight one to effect such an
important change in the law. In
its absence, however, the same
change, it is presumed, would be
effected under sub-section 11 of
sect. 25 of The Judicature Act,
1873, which enacts that "generally,
in all matters not hereinbefore
l)articularly mentioned, in which
there is any conflict and 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."



On a deficiency of assets for debts, general legacies applicable before

specific legacies, 283
Specific legacy abate among themselves, pro rata, ib.
Legacy apparently residuary, may be specific when testator contem-
plates a certain overplus, ib.
And -will abate only with specific legacies, ib.
Secus, when testator does not know or assume to know amount of

fund, 284, 285
Semble, pecuniary legatees, on a devastavit, are not to share losses

with residuary legatees, 285
Unless they have waived priority by their dealings with the exe-
cutor, 286
When a residuary legatee or a next of kin can be called upon by the

others to refund in consequence of a devastavit, ib.
Legacy charged on real estate in aid of the personal, is not payable
out of the real estate, if the personal estate is insufficient through a
devastavit, ib.
Unless devisees of the real estate were those who wasted the personal

estate, 286
Abatement of legacies and annuities rateably, ib.
■ General legacy for valuable consideration, entitled to priority over
merely voluntary legacies, ib.
So a legacy for the relinquishment of dower, ib.
Or of a debt actually due, ib.
Secus, where husband leaves no estate out of which widow is dow-

able, 287
Or where a legacy is given on condition of executing a release where

no debt is due to the legatee, ib.
Annuity charged on personalty abates proportionably with legacies, ib.
Proportional abatement, how calculated, ib.
Annuities given as specific interests in real estate do not abate with

legacies, ib.
Though charged on real estate, ib.
Annuities abate among themselves, ib.
Corpus of estate insuflicient to pay arrears of annuitie;? charged

thereon, how divisible, ib.
'Wliere all annuitants are living at the period of division, ib.
"Where aU are dead, ib.




Where some are dead, 287

Immaterial that annuity is reversionary and falls into pos?cssion after
the testator's death, 288

Annuity to executor for his trouble, not entitled to priority, ib.

Testator may prefer one legatee to another, ib.

But his intention must he clear, ib.

SiJecific legacies not applicable to debts until general legacies ex-
hausted, ib.

Nor are demonstrative legacies, ib.

Except they become general legacies by failure of the fimd, ib.

Legatee of a demonstrative or specific legacy can compel contribution
from devisee of land not charged with debts, 289

General residue applicable before specific legacy charged with debts
and legacies, ib.

Gift of legacy duty on specific legacies ranks as a pecuniary legacy, 295

And. must abate with a pecuniary legacy, ib.

Legatee exempted from legacy duty cannot call upon other legatees to
abate upon a deficiency of the residue to pay duty, ib.
See Annuities, Legacy.

ACQUIESCENCE. See Trustees and Executors, Liabilities of.


General legacy, except in the case of a subsequent portion given to a
child not liable to ademption, 264

Specific legacy adeemed, if not in existence at testator's decease, ib.

The animus adimendi not considered, 265

Specific legacy of goods at a particular place in general adeemed by
removal by the testator, ib.

Or by an agent with his approbation, ib.

By loss of goods insured, during life of, or at the same time as the
death of tlie testator, ib.

Temporary or accidental removal may not amount to, 266

Nor a fraudulent or tortious removal, ib.

Lord Hardwiche's distinction as to goods on board a ship, ib.

Removal does not efi'ect where words of bequest have not necessarily
a reference to a particular locality, ib.

Bequest of a debt generally adeemed by receiving it, 267

Of a life policy by receiving insurance monies, ib.

Of mortgage-debt by receiving it, though investing it on another secu-
rity, ib.

Adeemed by payment though new debt due, when, 268

Release by will of interest on debt, a specific bequest to the debtor, ib.

Distinction between a voluntary and compulsory payment of a debt of
no weight, ib.

Partial receipt of debt an ademption pro tanto, ib.

When receipt of money not an adenq)tion of a debt, 268, 269

Bequest of debt may comprehend it in its altered state, 269

Of stock by transfer from name of trustee, when it takes place, ib.
When not, ib.

INDEX. 1143

ADEMPTION— coniM??(et?.

Specific legacy of stock adeemed by sale, not revived by re-purchase,

269, 270
A mere nominal change may not amount to, 270
As if stock be converted by Parliament into a different species, ih.
Or by transfer from trustees to testator, ib.

Or by railway shares being converted into consolidated stock, ib.
Or by transfer by fraud, 271
Or without authority, ib.

Or if testator dies before authority to sell be carried into effect, ib.
Where things bequeathed are disposed of by others after the insanity

of the testator, 271, 272
When by order of the Court of Chancery in lunacy, 272
Specific bequest of share of profits of partnership, not adeemed by new

articles of partnership, ib.
Bequest of leaseholds adeemed by taking a new lease, ih.
Semble, not where legal estate is in a trustee, ib.
Takes place where lease is after the will assigned upon other trusts, ib.
Upon valuation by surveyors of leaseholds after railway company has

given notice to bid, 273
But legatee entitled to rents from death of testator to completion, ih.
Does not take place where intention ajipears to jaass subsequently

acquired interests in lease, ih.
Takes place by underlessee taking assignment of the original lease, ib.
Unless intention to pass existing interest appear by a codicil, when, ib.
A general legacy made specific by a subsequent instrument not set up

by ademption of the specific legacy, ib.
Demonstrative legacy not adeemed by non-existence of the fund out of

which it is primarily payable, ih.
But testator may show his intention that legatee is only to be paid out

of a particular fund, 274
Adeemed legacy not revived by codicil confirming a will, ib.
Legacy remains a charge on land though revoked by a general bequest

to another, ib.
Specific legacy not adeemed by being pawned or pledged, ib.
Legatee will be entitled to have it redeemed, ih.
Or to compensation out of the general assets, ih.
Immaterial whether a specific legacy be pledged by testator for his own

debt or the debt of another, ib.
Or in the case of cargo on board a ship the liability for freight duties

and insurance, ib.
Stock transferred to banker by way of mortgage, 275, 276, 277
Specific legacy of lease, where rents applicable in reduction of debt, how

dealt with, 277
How far specific legatee of shares entitled to have calls paid out of

testator's personal estate, ih.
Eesult of the cases according to Sir /. Rortiilly, M, R., ib.
Whether specific legatee or residuary estate lialde to calls on shares

fully paid up specifically bequeathed, 277, 278.
See Satisfaction.

1144 INDEX.

ADMINISTRATOR, no allowance to, for his care and trouble, 209. See



I\Iortgagor entitled to nominate to, 1067

Partition of, 441, 446. See Mortgage— Partition.


Are generally legacies, 251

Comprised within the word legacies, when, 2r)l, 252

Descendible to the heir when given with words of inheritance, 252

Secus, without such words though perpetual, ib.

Whether they are perpetual or for life only, 252, 253, 254

Whether a charge upon the corpus or payable out of income, 254, 255

Efl'ect of acquiescence by annuitant in not resorting to corpus, 255

Corpus liable for arrears, when, 255, 256

When a continuing charge on rents and profits, 256, 257

Annuitant entitled to receive money requisite to purchase, when, 257

Or the representative of annuitant dying before purchase of, ib.

And though money is to arise from residuary estate, ib.

Or from the sale of land, ib.

And the annuitant dies during the life of person having a prior interest

in the land, 257, 258
Secus, where there is only a covenant or directioa to pay out of an

estate, 258
Abate ratcably with legacies, 286
Immediate payment of, commences when, 291
Distinction between and legacies for life with remainder over, 292

See Abatement of Legacies.


Of income of personalty specifically bequeathed between specific lega-
tee and estate, 281
When Apportionment Act, 1870, is applicable, ib.
When not, 281, 282

ASSIGNMENT. See Equitable Assignment — Mortgage.


acting as trustee can ordinarily charge for expenses and costs out of

pocket only, 211, 216
in what cases allowed to do so, ib. See Trustee.


Jurisdiction of the Court to issue commission to ascertain, 410
Origin of it, ib.

Mere confusion of boundaries not sufficient ground ftr commission

INDEX. 1145

BOUNDARIES— coM^mwet?.

Refused in the case of parishes and manors, 411, 412

Some equity must be superinduced, ib.

Fraudulent encroachment of one of the parties, 413

Tenant neglecting to preserve the boundaries between his own and his
landlord's lands, ih.

Or tenant for life, 414

Semble, even the case of tenant or lessee of one manor being owner
of another, ib.

One individual holding lands belonging to several offices, il^

"When confusion occasioned by devisor and trustees, ib.

Relief granted against volunteers, 415

Or purchasers with notice, ib.

Principles on which cases proceed, ib.

Plaintiff must show that some portion of the lands are in possession
of the defendant, ib.

And plaintiffs title to some lands in possession of the defendant must

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