Tag: Equity

Scottish Equitable v Derby; 16 Mar 2001

References: [2001] 3 All ER 818, [2001] EWCA Civ 369, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Links: Bailii
Coram: Robert Walker LJ
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of decision made by a payee which, even though it involves no immediate expenditure, will nonetheless give rise to the defence of change of position, the voluntary giving up of a job at an age when it would not be easy to get new employment.
This case cites:

  • Cited – Lipkin Gorman (a Firm) -v- Karpnale Ltd HL ([1991] 2 AC 548, Bailii, [1988] UKHL 12, [1991] 3 WLR 10)
    The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
  • Cited – Avon County Council -v- Howlett CA ([1983] 1 WLR 605, [1983] 1 All ER 1073)
    The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of £1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds that . .

This case is cited by:

  • Cited – Commerzbank Ag -v- Price-Jones CA (Bailii, Times 26-Nov-03, [2003] EWCA Civ 1663)
    The respondent had received a bonus of £250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The employer . .

Holland v Russell; 9 May 1863

References: [1863] EngR 546, (1863) 4 B & S 14, (1863) 122 ER 365
Links: Commonlii
This case cites:

  • See Also – Holland -v- Russell ([1861] EngR 728, Commonlii, (1861) 1 B & S 424, (1861) 121 ER 773)
    Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .

Joyce v Joyce; 2 Jan 1978

References: [1978] 1 WLR 1170, [1979] 1 All ER 175
Coram: Megarry V-C
A claim was made for specific performance of an oral agreement to sell shares.
Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the purchase price is neither here nor there if the contract against which it is said to have been paid was in dispute. A plea of laches is available to a person against whom it is alleged that he holds the disputed asset as a bare trustee under an uncompleted contract: ‘In applying Birkett v James [1978] AC 297 to cases that are the subject to laches rather than any fixed period of limitation, I think that it is for the plaintiff to demonstrate the futility of striking out the earlier action; and to do this he must at least show that in the second action there is a prima facie case for his being able to overcome the difficulties resulting from the doctrine of laches. In this case the plaintiff has wholly failed to persuade me of this. Certainly the plaintiff has been very far from showing himself to be ‘ready, desirous, prompt and eager.’ The court therefore considered that ‘ it would be futile to dismiss the first action for want of prosecution, for although the defendant would still be exposed to the claims in the second action, those claims face greater difficulties than did the claims in the first action. In other words, the defendant is better off in facing only the second action and not having to meet the first. ‘
This case cites:

  • Cited – Birkett -v- James HL ([1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38)
    The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

This case is cited by:

  • Cited – Inglorest Investments Ltd -v- Robert Campbell & Another CA ([2004] EWCA Civ 408, Bailii)
    The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .

Wagstaff v Read; 20 Nov 1683

References: [1683] EngR 80, (1683) 2 Chan Cas 156, (1683) 22 ER 892 (C)
Links: Commonlii
Purchaser not hurt in Chancery – Portman became bankrupt, the commissioners assign his Estate, whereof the Plaintiff made Title to some Goods, and exhibits his Bill. against the Defendant to discover the Goods, and their Value, and what and how much he paid for them, because the Plaintiff charges, they came to the Defendant’s possession after the bankrupt broke : The Defendant sets forth, for what Goods did ever come to his Hands, he bought of Portman bona fide, for a full and valuable consideration, nor did not know, nor had any Notice that at the Time of buying until the now Bill, was a bankrupt, or of any Account of his Bankruptcy, and pleads this Matter against any Discovery.

Horton v The Westminster Improvement Commissioners; 12 Jun 1852

References: [1852] EngR 729, (1853) 7 Exch 911, (1852) 155 ER 1220
Links: Commonlii
This case cites:

  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
    The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants . .

Parkin v Thorold; 2 Jun 1851

References: [1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239
Links: Commonlii
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.
This case is cited by:

  • Appeal from – Parkin -v- Thorold CA ((1852) 22 LJ Ch 170, [1852] EngR 535, Commonlii, (1852) 16 Beav 59, (1852) 51 ER 698)
    The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .

Wilson v Moore; 22 Mar 1834

References: , [1834] EngR 607, (1834) 1 My & K 337, (1834) 39 ER 709
Links: Commonlii
Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of their correspondent, were held to be responsible for the fund so applied, to general pecuniary legatees under the will of the tesator.
Affirmed upon appeal.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Roxborough v Rothmans of Pall Mall Australia Ltd; 6 Dec 2001

References: (2001) 208 CLR 516
Coram: Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as ‘artificial and unconvincing’. However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that ‘Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that’. They also rejected Rothmans’ argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: ‘caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of ‘unjust enrichment’. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.’
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a ‘failure of consideration’ in the ‘failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover’.
This case is cited by:

Bonney v Ridgard; 3 Dec 1784

References: [1784] EngR 230, (1784) 1 Cox 145, (1784) 29 ER 1101 (B), (1784) 1 Cox Eq Cas 145
Links: Commonlii
A purchaser of leasehold premises from an executor need not (in general) see to the application of the purchase money, nor need there be any recital in such an assignment of the purpose for which it is sold ; but if on the face of the assignment it appears to have been made in satisfaction of the private debt of the executor, such a sale is fraudulent against the persons interested in the premises under the will, and a court of equity will relieve against it. But such a claim will be barred by a great length of time having run against the parties seeking relief.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Jackson v Jackson; 4 Jul 1804

References: (1804) 9 Ves Jr 591, [1804] EngR 302, (1804) 9 Ves Jun 591, (1804) 32 ER 732
Links: Commonlii
Coram: Lord Eldon LC
A testator left his business and land to his two sons jointly to carry on that business after his death. They did so as partners. One issue was whether in doing so they severed the joint tenancy in the land, which was accessory to the business. Lord Eldon LC said that if the father’s will had made clear that the joint tenancy was to survive despite the sons’ dealings with it as partnership property, then the intention of the testator should prevail. As it was, in the absence of such an intention, it was open to the sons to sever the joint tenancy, and they had done so: ‘after transactions for 12 years; shewing that William lived and died in the persuasion, maintained by the acts of the other, that he was entitled to one-half; and after his death the Defendant acting upon the idea; which is the rational inference from the nature of the property and the transactions till his brother’s death; who was, during his whole life, entitled to sever his interest.’
This case is cited by:

Hogg v Kirby; 15 Mar 1803

References: [1803] EngR 513, (1803) 8 Ves Jun 215, (1803) 32 ER 336 (B)
Links: Commonlii
Coram: Lord Eldon LC
Injunction to restrain publishing a Magazine as a continuation of the Plaintiff’s Magazine in numbers, and as to communications from correspondents, received by the Defendant while publishing for the Plaintiff ; not preventing the publication of an original work of the same nature, and under a similar title. The Plaintiff was proprietor of a work, published in monthly numbers under the title ‘The Wonderful Magazine’.
Held: In assessing damages in a passing off case, the court said, ‘what is the consequence in Law and in Equity? . . a Court of Equity in these cases is not content with an action for damages; for it is nearly impossible to know the extent of the damage; and therefore the remedy here, though not compensating the pecuniary damage except by an account of profits, is the best: the remedy by an injunction and account.’ The reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringements of property rights was the inadequacy of damages as a remedy.’
This case cites:

  • See Also – Hogg -v- Kirby (Commonlii, [1789] EngR 1227, (1789-1817) 2 Ves Jun Supp 100, (1789) 34 ER 1013 (B))
    . .

This case is cited by:

  • Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
  • Cited – Ludlow Music Inc -v- Williams and others ChD (Bailii, [2000] EWHC 456 (Ch), [2001] EMLR 7, [2001] FSR 19)
    The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
    Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .

Sir Ralph Bovey v Skipwith; 25 May 1671

References: [1671] EngR 28, (1671) 1 Chan Cas 201, (1671) 22 ER 762 (A)
Links: Commonlii
This case cites:

  • See Also – Sir Ralph Bovey -v- Skipwith (Commonlii, [1671] EngR 9, (1671) 3 Rep Ch 67, (1671) 21 ER 731 (A))
    In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .

Kendall, Ex Parte; 25 May 1813

References: [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B)
Links: Commonlii
This case cites:

  • See Also – Kendall, Ex Parte (Commonlii, [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199)
    Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he . .

Aldrich v Cooper, Durham v Lankester, Durham v Armstrong; 26 Apr 1803

References: [1803] EngR 542, (1803) 8 Ves Jun 382, (1803) 32 ER 402 (B)
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that estate after the death of the mortgagor. But it is the ordinary case to say a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him, who has two funds, upon that, which can be affected by him only; to the intent that the only fund, to which the other has access, may remain clear to him.’
This case is cited by:

  • Cited – Serious Organised Crime Agency -v- Szepietowski and Others ChD (Bailii, [2010] EWHC 2570 (Ch), [2010] NPC 101, [2011] Lloyd’s Rep FC 81)
    The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Kendall, Ex Parte; 7 May 1811

References: [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he may avail himself of his only security: where that can be done without injustice to the debtor or the creditor: but that principle has never been pressed to the effect of injustice to the common debtor . .’
This case is cited by:

  • See Also – Kendall, Ex Parte (Commonlii, [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B))
    . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Lanoy v The Duke And Dutchess of Athol; 13 Nov 1742

References: [1742] EngR 130, (1742) 2 Atk 444, (1742) 26 ER 668
Links: Commonlii
Coram: Lord Hardwicke LC
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a settlement.
Lord Hardwicke LC said: ‘Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien . . Suppose a person, who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons . .’
This case is cited by:

  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Boyse v Rossborough; 11 Feb 1854

References: [1854] EngR 252, (1854) 3 De G M & G 817, (1854) 43 ER 321
Links: Commonlii
Coram: Lord Carnworth LC
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Wright v Vanderplank; 8 Mar 1856

References: [1856] EngR 331, (1856) 8 De G M & G 133, (1856) 44 ER 340
Links: Commonlii
A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, and had informed the father that he could take no instruction from him. She afterwards consulted a different solicitor as to the validity of the deed, and corresponded with her father on the subject of the application of the rents of the property. A year afterwards she married, and negotiations took plaoe between her father and a solicitar, who acted for her intended husband and also for her, from which it appeared that she was aware of her father’s interest under the deed of gift, and made no objection to it. She and her husband executed a post-nuptial settlement, which was expressed to be subject to the father’s life estate, She died more ten years after the date of the deed of gift, and then her husband, to whom her right devolved, filed a bill to set that deed aside.
Held: 1st that it might have been set aside but for subsequent acts of acquiescence ; 2nd that there had been such acquiescence as to afford an effectual defence to the suit.
This case cites:

  • Appeal from – Wright -v- Vanderplank ([1855] EngR 696, Commonlii, (1855) 2 K & J 1, (1855) 69 ER 669)
    In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in . .

Boyse v Rossborough; 5 Dec 1853

References: [1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31
Links: Commonlii
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee.
Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Brandy, 7 Bro. P. C. 437, But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.
The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding
term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction wouid be granted against him if, after such decree, he should attempt to impeach the will.
The origin of this jurisdiction is obscure ; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir ; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.
Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.
But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.
An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.
That the legal estate has been conveyed by the Plaintiff to his own trustee since then this cause came on to be heard upon a general demurrer for want of equity.
This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Wright v Vanderplank; 20 Jul 1855

References: [1855] EngR 696, (1855) 2 K & J 1, (1855) 69 ER 669
Links: Commonlii
In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in receipt of the rents of a considerable estate ; and throws upon the parent the onus of shewing plainly and unequivocally that the gift was made not in consequence of representations on his part, but by the spontaneous act of the child, and that the child had full knowledge of the nature of the deed by which the gift was effected? and of his own position and rights in reference to the property.
A deed was executed by a lady, five months after she came of age, disentailing part of her estates, and giving, for a nominal consideration, an estate for life in the disentailed part to her father, who, during her minority, had been her guardian, and in receipt of the rents of her estates. Held (obiter), that if a bill had been filed shortly after the transaction, either before or possibly after the lady’s marriage, which was solemnised sixteen months after the execution of the deed, the transaction could not have been supported, the deed itself not explaining the nature of the transaction, aud it not being shewn that the daughter had proper professional advice, that the nature of the transaction was explained to or understood by her, or that the gift was spontaneous or made at a time or under circumstances when she was free from parental influence.
But a bill, which, after the daughter’s decease, and nearly ten years after the execution of the deed, was filed by her husband on whom her rights had devolved, praying to have the father declared a trustee of the life interest, and an account of the rents which accrued during his daughter’s minority or afterwards, was dismissed on the ground of laches, it appearing (inter alia) that the Plaintiff was aware of all the circumstances previously to his marriage, and the Court being of opinion, upon the evidence, that, eight years before the bill was filed, both the Plaintiff and his
deceased wife had acquiesced in the transaction.
This case is cited by:

  • Appeal from – Wright -v- Vanderplank ([1856] EngR 331, Commonlii, (1856) 8 De G M & G 133, (1856) 44 ER 340)
    A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, . .
  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
    Held: The appeal were solely as to . .

Knight v Bowyer; 1 Aug 1859

References: [1859] EngR 908, (1859) 4 De G & J 619, (1859) 45 ER 241
Links: Commonlii
This case cites:

  • See Also – Knight -v- Bowyer ((1858) 2 De G & J 421, [1858] EngR 673, Commonlii, (1858) 2 De G & J 421, (1858) 44 ER 1053)
    The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case. . .

Knight Since Deceased And His Executors, Tomkinson v Bowyer etc; 1 Jul 1857

References: [1857] EngR 716 (C), (1857) 23 Beav 609
Links: Commonlii
An annuity was granted free of all taxes ‘ except the property tax,’ and the deed contained a proviso, that in cwe the income tax should be reduced, the reduction should enure to the benefit of the grantor. This proviso was omitted in the memorial.
Held: that the memorial was sufficient.
If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties.

Lindsay Petroleum Company v Hurd: 1873

References: (1874) LR 5 PC 221, [1873] 5 AC 221
Coram: Sir Barnes Peacock, Lord Selbourne LC
The court discussed the basis of the equitable doctrine of laches.
Lord Selbourne LC said: ‘Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case if an argument against relief which otherwise would be just is founded upon mere delay that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantial equitable. Two circumstances, always important in such case, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.’
This case is cited by:

  • Cited – Mcivor -v- The Northern Bank Executor and Trustee Company Ltd ChNI (Bailii, [2002] NICh 12)
    . .
  • Cited – Fisher -v- Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch))
    The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
  • Cited – Brooker & Another -v- Fisher CA (Bailii, [2008] EWCA Civ 287, [2008] Bus LR 1123, [2008] FSR 26, [2008] EMLR 13)
    The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
  • Cited – Fisher -v- Brooker and Others HL (Bailii, [2009] UKHL 41, Times, [2009] 1 WLR 1764, [2009] FSR 25, [2009] Bus LR 1334, [2009] 4 All ER 789, [2009] ECDR 17, [2010] EMLR 2)
    The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
    Held: The appeal were solely as to . .

Kemble v Farren; 6 Jul 1829

References: [1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Links: Commonlii
Coram: Tindall CJ
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: Liquidated damages cannot be reserved on an agreement containing various stipuations, of various degrees of importance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.
Tindall CJ said: ‘We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point.’
If the terms had been limited to breaches which were of an uncertain nature and amount, it would have been good. But the provision extended to any term including the payment of small amounts of money, or other trivial non-money breaches: ‘But that a very large sum should become immediately payable, in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement.’
This case cites:

  • See Also – Kemble -v- Farren CCP (Commonlii, [1829] EngR 519, (1829) 3 Car & P 623, (1829) 172 ER 574 (A))
    Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
  • Cited – Parkingeye Ltd -v- Beavis CA (Bailii, [2015] EWCA Civ 402)
    The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of £85.00. The judge had found that the appellant was in breach of a . .

(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 322458

Smith v Clay; 10 May 1767

References: [1767] EngR 55, (1767) 3 Bro CC 646, (1767) 29 ER 743
Links: Commonlii
Coram: Lord Camden LC
Ratio Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Ratio Lord Camden LC applied the doctrine of laches, saying: ‘A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.’ Equity would not countenance laches beyond the period for which a legal remedy had been limited by statute, and that where the legal right had been barred, the equitable right to the same thing was also barred: ”Expedit reipublicae ut sit finis litium’, is a maxim that has prevailed in this court at all times, without the help of parliament.
But, as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances.
But as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, a Court in Chancery adopted that rule, and applied to similar cases in equity.
For when the Legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation), to countenance laches beyond the period, that law had been confined to by parliament.
And therefore in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar.’
This case cites:

  • See Also – Smith -v- Clay (Commonlii, [1767] EngR 54, (1767) Amb 645, (1767) 27 ER 419)
    Bill of review for error apparent will not lie after twenty years from the making of the decree. The time runs from the decree, not from the inrolment. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
    Held: The appeal were solely as to . .

(This list may be incomplete)

Last Update: 25-Mar-16
Ref: 374834

Curtis v Perry; 10 Mar 1802

References: (1802) 6 Ves 739, [1802] EngR 125, (1802) 6 Ves Jun 739, (1802) 31 ER 1285
Links: Commonlii
Coram: Lord Eldon
Ratio Ships had been purchased by a partnership, but were then held seperately in the name of one of them. Only later were they included within the partnership acounts, but the separate registrations were maintained, and unlawfully so so as to avoid them being traced. The other partner had been a member of parliament, and would have been pennalised if he had been party to transactions with the government. On his death, his estate claimed an interest in the ships.
Held: The plaintiff failed to recover. Equity will assist neither party to an illegal transaction.
Lord Eldon said:’The reason for waiving any right Chiswell had in consequence of the manner, in which Nantes made this purchase, the object of keeping the ships registered in the name of Nantes, was, that a profit might be made by the employment of them in contracts with Government; and Chiswell was a Member of Parliament; who, the law says , shall not be a contractor. The moment the purpose to defeat the policy of the law by fraudulently concealing, that this was his property, is admitted, it is very clear, he ought not to be heard in this Court to say, that is his property.’
This case is cited by:

  • Cited – Bowmakers Ltd -v- Barnet Instruments Ltd CA ([1945] KB 65)
    An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
  • Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
    Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
  • Cited – Costello -v- Chief Constable of Derbyshire Constabulary CA (Bailii, [2001] EWCA Civ 381, [2001] 1 WLR 1437, [2001] 2 Lloyd’s Rep 216, [2001] 3 All ER 150)
    The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .

(This list may be incomplete)

Last Update: 25-Mar-16
Ref: 194099