land to be invested, power to lay out roads, &c. Mortgagees are not to be bound to enquire as to regularity of mortgage, investment clause, and lastly, person to exercise power to appoint new trustees.

It may be mentioned that the settlement may be materially shortened owing to the provisions of the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), the Conveyancing and Law of Property Act 1881 (44 & 45 Vict. c. 41), and the Settled Land Act, 1882 (45 & 46 Vict. c. 38).

234. Is a voluntary conveyance or settlement, duly executed, which the donor retains in his possession without publishing it, revocable by the donor, and by what means? Will it make any difference whether the property so conveyed or settled is real or personal?

Where there is no power of revocation contained therein, and being a conveyance it is not made to a trustee for the donor's creditors, to whom its existence is not communicated, or being either a conveyance or settlement it is not void, or is not capable of being declared void, because it violates the provisions of either 13 Eliz. c. 5; 27 Eliz. c. 4; 32 & 33 Vict. c. 71; 41 & 42 Vict. c. 31; or because of its having been obtained by fraud from the donor, or of such power of revocation being omitted through fraud or mistake, the conveyance or settlement is irrevocable, whether the donor retains it in his possession or not and whether he publishes it or not.

If the voluntary conveyance or settlement affects real property it is not revocable directly by the donor, but it is revocable indirectly by the donor conveying the same property again to a purchaser for valuable consideration. It has been decided that such last-named conveyance comes within the exception contained in 27 Eliz. c. 4, in favour of a purchaser for value, and renders the former conveyance void immediately after its execution, and it matters not whether such purchaser has notice of the former voluntary conveyance or settlement or not, unless the donee is a charity. If a voluntary conveyance or settlement affects pure personalty or leaseholds it is irrevocable directly or indirectly. (See 2 Prideaux, 11th ed., 206.)

235. By settlement, executed previously to marriage, property belonging partly to the husband and partly to the wife was settled upon trust to pay the income to the husband for life, subject to a proviso that, if he should at any time become bankrupt, or in any wise charge or incumber the income, or do any act whereby he should cease to be entitled to the income, such income should be paid to the person next entitled under the trusts of the settlement, and after the decease of the husband or the sooner determination of his estate, upon trust for the wife for life, and after her deceuse for the children. In the event of the husband becoming bankrupt, or aliening or incumbering his life interest, who is entitled to the income? State the ground of your answer.

In the event of the husband becoming bankrupt, so much of the income as is produced from the property that belonged to the husband before marriage his trustee in bankruptcy will be entitled to receive on behalf of the creditors, as such a proviso as regards such property is considered a fraud on the bankruptcy law, and as such invalid against his trustee. Such proviso is not, however, invalid as against the husband's alienees or incumbrancers, either as regards the property which belonged either to the husband or to the wife before the marriage, and therefore on the husband aliening or incumbering his life interest, the income of both properties will go to the person next entitled under the trusts of the settlement on the determination of the husband's life interest-i.e., his wife, if living if not, his children. If the husband becomes bankrupt, so much of the income as is produced from the property that belonged to the wife before marriage will also pass to the person next entitled under the trusts of the settlement on the determination of the husband's life interest-i.e., his wife, if living, if not, his children; because as regards such property the proviso is valid even in bankruptcy. (See cases cited in 2 Prideaux, 11th ed., 195, 196.)

236. State the rule in equity as to giving effect to assurances or gifts made in favour of volunteers (other than creditors).

A. lends B. a sum of money repayable by instalments, and subsequently refuses to take such instalments, and verbally declares his intention to forgive the debt, and appoints B. executor. Is B. liable

to repay the loan after A.'s death?

The rule in equity being that "equity will not perfect an imperfect gift," it follows that the Court will not lend its assistance in any way to support assurances or gifts made in favour of volunteers (other than creditors) by decreeing specific performance or otherwise, unless the instrument of assurance or gift is complete in itself; when, however, the instrument of assurance is a will, the Court, for the benefit of testators who are unable to obtain professional advice, makes an exception. Another, and the only other exception to the above rule, exists in favour of charities, when the Court will not allow the grantor's object to be defeated by a technical defect in the mode of conveyance, unless it is contrary to the express words of some statute, if a general intention to benefit some charity is manifested, and such intention is not shown for an object of a public general nature, which may or may not be satisfied by applying the subject-matter to a non-charitable object. If the instrument of assurance or gift is in itself perfect and complete, then the Court will enforce it whenever called upon to do so in a proper case.

If ever the deed of gift is called into question, the voluntary grantee must be prepared to show that it was the deliberate and voluntary act of the grantor, and was made by him in favour of the grantee bona fide. If it is never called in question, and is complete, as above stated, it will take effect like a conveyance for valuable consideration.

In the above case B. will not be liable; first, because A. gave B. the instalments and completed and evidenced the gift (1) by refusing to take the instalments, and (2) subsequently declaring his intention to forgive the debt, and (3) not demanding the instalments of B. before his death; (4) no suggestion of malâ fides on B.'s part, or want of delibration on A.'s part; and (5) by A.appointing B. his executor. The fact of A. appointing B. his executor would formerly alone have been sufficient in a court of law, though not in a court of equity, but now equity prevails, and such an appointment will not operate as a gift of a debt due from the executor to the testator. (See Strong v. Bird, 43 L. J. Ch. 814; L. R. 18 Eq. 315; and Re Breton, Breton v. Woolven, 50 L. J. Ch. 369.)

SPECIFIC PERFORMANCE.

237. What is the ground on which Courts of Equity have acted to compel specific performance of contracts? State cases in which, although the ground exists, the Court will not act.

The ground is the inadequacy of the legal remedy for damages in the particular case before the Court to give the plaintiff seeking specific performance the full compensation to which he is entitled, and to put him in a position as beneficial to him as if the agreement had been specifically performed.

The Court will refuse such relief, although the above ground exists,

(1.) From the nature of the contract, as (a) Where the agreement is illegal. (b) Where the agreement is not founded on a valuable consideration. (c) Where the agreement is unreasonable or prejudicial to third persons interested in the property. (d) Where there are conflicting claims likely to harass the purchaser in the future. (e) Where the actual performance is impossible in fact, or the material terms are such that it is not in the power of any judicial tribunal to enforce.

(2.) From the conduct of the parties, as (a) Where the plaintiff does not come with clean hands (i.e., if, for instance, he has wilfully misrepresented or concealed the facts from the defendant). (b) Where the plaintiff has been guilty of laches. (H. A. Smith's Equity, 571-575.)

238. On what ground have Courts of Equity allowed acts of part performance of contracts to exclude the operation of the Statute of Frauds?

A tenant for life with power of leasing enters into a parol agreement to grant a lease, which agreement is partly performed by the proposed lessee in the lifetime of the tenant for life. Under what circumstances will the remainderman be bound by the agreement?

The Courts will enforce specific performance of a contract within the statute where the parol agreement has been partly carried into execution by the party praying relief. (Caton v. Caton, L. R. 1 Ch. 137.) The distinct ground upon which Courts of Equity

interfere in cases of this sort is that otherwise one party would be able to practice a fraud upon the other; and it could never be the intention of the statute to enable any party to commit a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted instead of being obstructed by a jurisdiction for discovery and relief. And where one party has executed his part of the agreement in the confidence that the other party would do the same, it is obvious that if the latter should refuse it would be a fraud upon the former to suffer this refusal to work to his prejudice. (Nicol v. Jackaberry, 10 Gr. 109; Hussey v. Horn Payne, L. R. 4 App. Ca. 311; Snell's Equity, 5th ed., 531.)

It must be remembered that the acts of part performance must be such as are not only referable to an agreement such as that alleged, but such as are referable to no other. For if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement. (Gunter v. Halsey, Amb. 586; Lacon v. Mertins, 3 Atk. 4; Alderson v. Maddison, 50 L. J. Q. B. 466; 18 L. J. N. C. 73; Snell's Equity, 5th ed., 532.)

In the above case of a lease by a tenant for life who has a power of leasing which is invalid because it is not in writing, or being in writing is not effectual under the Statute of Frauds, it seems that it will not bind the remainderman, although it is in part performed by the intended appointee, as where a lease is agreed to be granted by parol under a power, and the lessee expends money in improvements during the life of the person who agreed to grant the lease. (Shannon v. Bradstreet, Rep. t. Red. 52; Blore v. Sutton, 3 Mer. 237; Lowry v. Lord Dufferin, 1 Ir. Eq. Rep. 281; O'Fay v. Burke, 8 Ir. Ch. Rep. 225.) In Carter v. Carter (Moze. 365), the Master of the Rolls thought that a parol appointment would not be good in equity even before the Statute of Frauds. It is, Sir W. Grant observed, considered as a fraud in a party permitting an expenditure on the faith of his parol agreement to attempt to take advantage of its not being in writing. But of what fraud, he asked, is a remainderman guilty who has entered into no agreement, written or parol, and has done no act on the faith of which the other party could have relied? This ground has been considered