ON THE

PRESENT LAWS OF ENGLAND

BY

THOMAS BRETT,

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW;

LL.B. LONDON UNIVERSITY;

B.A., LATE SCHOLAR AND STUDENT OF TRINITY COLLEGE, DUBLIN; EXHIBITIONER IN
REAL PROPERTY AND EQUITY; HOLDER OF THE FIRST CERTIFICATE OF
HONOUR, MICHAELMAS, 1869;

JOINT AUTHOR OF CLERKE AND BRETT'S CONVEYANCING ACTS; AUTHOR of
BRETT'S BANKRUPTCY ACT, 1883,

AND OF LEADING CASES IN MODERN EQUITY; AND LATE LECTURER IN EQUITY TO
THE INCORPORATED LAW SOCIETY.

Second Edition.

IN TWO VOLUMES.-VOL. II.

LONDON:

WILLIAM CLOWES AND SONS, LIMITED,

27, FLEET STREET, E.C.

1891.

CONTENTS OF VOL. II.

BOOK V.

EQUITY.

CHAPTER I.

TRUSTS.

Definition of-How created and transferred-Provisions of Statute of

Frauds as to trusts-Who may be trustees-Provisions of Married

Women's Property Act, as to---Division of trusts-Express-Implied

-Constructive-Executed-Executory - Precatory-Resulting -

Doctrine of advancement-Devises and bequests on trust Trustees'

investments-Provisions of the Trustee Act, 1888, and the Trust

Investment Act, 1889—Trusts for benefit of creditors-Effect of an

administration judgment against trustees-Provisions of the Convey-

ancing Act, 1881, with regard to trusts-Law as to "following'

trust property-Rule of Howe v. Lord Dartmouth-Limitation of

actions against trustees-The appointment of new trustees and pro-

visions of the Conveyancing Acts with reference to the devolution of

trust property and the appointment of new trustees, &c.—Removal of

trustees-The law as to trusts for the benefit of charities considered-

The doctrine of cy-près
509-540

CHAPTER II.

CONVERSION.

The equitable principle upon which the doctrine of conversion is stated,

illustrated by the old leading case of Ackroyd v. Smithson, and

recent decisions of the House of Lords and the Probate Division-

Statement of the law as to the difference between conversion under a

deed and conversion under a will-The law as to conversion of

partnership property
541-546

CHAPTER III.

ADMINISTRATION.

Statement of the principle on which the jurisdiction of the Court is based
-By whom proceedings for administration may be commenced-Great
changes in the law and practice with regard to administration

547-554

CHAPTER IV.
PARTITION.

State of the law before the Partition Act of 1868-Statement of the
principal provisions of the Partition Act of 1868 (31 & 32 Vict. c. 40),
and the Partition Act, 1876 (39 & 40 Vict. c. 17), and review of the
principal decisions thereon..
555-558

CHAPTER V.

MORTGAGES-CHARGES-LIENS.

General principles of the Court as to foreclosure and redemption-Change
in form of judgment-Present form of judgment-Relief now obtained
by originating summons-Form of summons-Not applicable where
personal judgment sought-Form of order-Period for redemption-
Account against mortgagee in possession-Final judgment, nature of
-Opening foreclosure-No power to add to judgment-Parties to
action-Mortgagee's costs-Real Property Limitation Act-Doctrine
of vendors' lien for unpaid purchase-money-To what property it
extends - How it is lost-Purchaser's lien for prematurely paid
purchase-money-When it arises-Form of order declaring charge-
Who is entitled to redeem-Law as to tender of amount due
Provisions of Conveyancing Act with reference to mortgages

559-571

CHAPTER VI.

SPECIFIC PERFORMANCE.

Specific performance of a contract defined-Principal grounds on which
the Court grants or declines to enforce specific performance stated-
The jurisdiction discretionary-General rule that mutuality of obliga-
tion is necessary-The fourth section of the Statute of Frauds-Cases
in which contracts not in writing may be specifically enforced-The
law as to part performance considered-" Estoppel by representa-
tion"-Law as to voluntary settlements-Specific performance with
compensation-Law as to penalties-General rule that no damages
given for loss of bargain in contracts for sale of land-Law as to
contracts contained in a series of letters-Summary of law as to

description of the parties to a contract-Parol evidence of mistake-

Power of the Court to rectify a written agreement and grant specific

performance in the same action-Principle that equity acts in

personam-Law as to time being of the essence of the contract-Agree-

ments to compromise-Who must be parties to an action for specific

performance Jurisdiction of the Court on Summons under section 9

of the Vendor and Purchaser Act, 1874-Practice-Authorities on

the subject of specific performance
572-587

CHAPTER VII.

INJUNCTION.

Definition of injunction-Changes introduced into practice by the Judi-
cature Act-Divisions of injunctions into interlocutory, final, pro-
hibitive, mandatory-Provisions of the 25th section of the Judicature
Act, 1873, and decisions thereon-The law as to injunctions considered
with reference to-Letters-Libel-Light-Mortgage-Nuisance-
Patent-Photographs-Restraint of trade-Restrictive covenants-
Specific performance-Trustees-Waste-Forms of notice of motion
and order for injunction-Reference to authorities-Law as to clubs
588-599

CHAPTER VIII.

RECTIFICATION.

Principle upon which the Court proceeds in rectifying instruments-Effect

of the authorities summed up by Mr. Kerr-The law as to rectification

in cases of marriage articles and marriage settlements, and as to

voluntary and disentailing deeds-Evidence required in cases of

rectification and practice relating thereto..

CHAPTER IX.

INFANTS.

600-603

Provisions of Judicature Act and Rules with regard to infants-Who are

infants?—The law with regard to infants considered under the four

heads of (1) Actions by and against infants; (2) The property of

infants; (3) The guardianship, custody, and religious education of

infants; (4) The marriage of infants and the settlement of their

property

604-613

CHAPTER X.

PARTNERSHIP.

The Partnership Act, 1890-Heads under which the subject of partnership
is treated in the Act-Definition of partnership-Rules for deter-
mining the existence of partnership, &c.-Essentials of partnership-
Different kinds of partnerships-Ostensible-Nominal-Dormant-
Sub-partnerships-Relations of partners to persons dealing with them
-Power of partner to bind firm, &c.-The liability of the firm for